Best v Rosamond

The limitations defence

1. At the immediate outset of the trial, Counsel for Mr Rosamond asked me to first hear and determine Mr Rosamond's limitation defence. I declined to accede to that request in circumstances where: (a) no pre-trial application had previously been made for determination of a separate question as to whether the limitation defence arose; and (b) the authorities make it quite clear that it would only be in exceptional circumstances that limitations defences should be determined at a summary level [1] ; (c) plainly assessment of this defence required evidence from Mr Best.
2. Although this course was followed at trial, now that the evidence is complete, no similar constraint operates upon the order of issues in these reasons. I consider it appropriate, and useful, to consider this issue first, in the case, as the issue is potentially dispositive.

Statutory provisions

1. Section 50C(1)(a) of the Act generally provides a three-year limitation period for actions for damages for personal injury running from and including the date on which the cause of action is "discoverable" by the plaintiff.
2. The word 'discoverable' is defined in s 50D, which is relevantly as follows: "(1) for the purposes of this Division, a cause of action is "discoverable" by a person on the first date that the person knows or ought to know of each of the following facts: the fact that the injury or death concerned has occurred; the fact that the injury or death was caused by the fault of the defendant; in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action. (2) A person "ought to know" of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact. (3) in determining what the person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person. …

The authorities

1. I was referred by Counsel for Mr Best to some Court of Appeal authorities, being Royal North Shore v Henderson (1986) 7 NSWLR 283 and Ditchburn v Seltsam Pty Ltd (1989) 17 NSWLR 697, concerning the construction of the predecessor provisions in the Limitation Act relating to claims for personal injury.
2. However in the leading decision concerning s 50D, that of Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454, the Court of Appeal (Basten JA, with whom Ipp and Macfarlan JJA agreed) determined three important propositions.
3. First, the word 'fact' (when it appears in section 50D(1)(c)) refers to the key factors necessary to establish legal liability (at [39]);
4. Secondly, the expression 'ought to have known' means that the person should have enquired as to a fact. This must, in appropriate circumstances, include obtaining medical and legal advice and information: (at [37] and [57]-[58]);
5. Thirdly, s 50D(1)(c) requires a legal evaluative assessment, on the factual question of whether the injury was sufficiently serious to justify bringing an action, on the predicate that the person has available to him relevant legal and medical information to allow an informed professional judgement to be made (at [41]-[44]).
6. Baker-Morrison was affirmed by a differently constituted Court of Appeal, in State of New South Wales v Gillett [2012] NSWCA 83 (per Beazley P, with whom McColl, Campbell, Young and Whealy JJA agreed). There, the Court of Appeal interpreted what Basten JA had said in Baker-Morrison in two important respects: 1. the person had to 'know' (s 50D(2)) that the defendant's conduct was actionable and this involved the exercise of both legal and medical expertise (at [70]). 2. the requirement of 'knowledge' (in s 50D(2)), transposed to the relevant context (the 'fact' in s 50D(1)(c)), is whether that fact would have been ascertained if the person had taken all reasonable steps to ascertain it before the relevant date. This involved an enquiry into the steps actually taken by the plaintiff, if any, and whether those steps satisfy the court's determination of what were reasonable steps to take in the particular circumstances of the given case (at [104]).

Analysis

1. As a preliminary matter, although his subjective thinking is relevant to the question raised by the statutory provisions, I consider that it is not appropriate for me to address the proposition that had been put to Mr Best, under cross-examination, that the timing of the bringing of the claim may be explicable to the circumstances where Mr Best thought it might yield a financial outcome beneficial to Mrs Rosamond. In fairness, it appeared to me that when the proposition was put to Mr Best in cross examination, it was done so with the purpose of generally impugning his credit. Presumably that explains why the proposition was not objected to. But, in my view, the proposition could have given rise to a defence, for Mr Rosamond, of abuse of process, which defence would be required to be specifically pleaded (per r 14.14). Counsel for Mr Rosamond did not raise the matter in her final submissions as relevant to the limitations defence; or otherwise. In my view this was the proper thing to do and I will not consider this matter in my analysis of this defence.
2. Counsel for Mr Best conceded that Mr Best 'knew' of the matters in s 50D(1)(a) and (b) of the Limitation Act. It was common ground that the remaining issue was whether (for the purposes of s 50D(1)(c) of the Act) Mr Best's cause of action was 'discoverable' before the day, three years before he commenced his action, that is 17 August 2015. It was not disputed by counsel for Mr Rosamond that Mr Rosamond generally bore the onus of the requirement of s 50D(1)(c), that by 17 August 2015, Mr Best knew, or ought to have known, that his injury was sufficiently serious to justify the bringing of an action on the cause of action.
3. It is important to refer, first, to the pleadings. In his Reply to Mr Rosamond's raising of the limitations defence, Mr Best alleged that his action was "discoverable" only after 17 August 2015, when he discovered that the injury was sufficiently serious to justify bringing proceedings on the action "and/or discovered that the cause of action did not fall within the provisions of the Civil Liability Act."
4. I accept Mr Rosamond's submissions that Mr Best gave no evidence to indicate any awareness, whatsoever, that his action did not fall within the provisions of the Civil Liability Act. This consideration can therefore be put aside.
5. For the following reasons, I find that the defendant has made out the requisite fact in s 50D(1)(c). In summary, although he may not actually have known that his injury was sufficiently serious to justify the bringing of an action on the cause of action, that fact would have been ascertained, prior to 17 August 2015, if Mr Best had, as he ought to have done, taken reasonable steps to obtain legal and medical advice and information.
6. The steps that Mr Best took to ascertain whether he had an injury sufficiently serious to justify bringing an action, prior to 17 August 2015, were limited. He had undergone two instances of surgical treatment to his left eye. The effects from the eye injury continued to be suffered until August 2015: he referred, in his evidence in chief, to continuing to suffer double vision above 10-15 degrees; and a sensitivity to light and other ailments.
7. In July 2015, he gave a statement to the police. This involved him going twice to the police. Mr Best accepted that he was aware that there were prospective criminal proceedings against Mr Rosamond in train arising from the assault perpetrated upon him.
8. I interpret the evidence that Mr Best gave to the police in paragraph 7 of his statement of 4 July 2015 as betokening his understanding of his injuries as at 10 January 2015, the date of the assault. This included serious concerns that he had about a "permanently dilated left pupil" and "damaged nerves" in the left eye arising from the assault upon him.
9. In the report of Dr Martin prepared on 30 January 2018, Dr Martin noted Mr Best's concerns following the 'injury' (which, in context, was another way of saying 'assault'). I took that to be a reference to his appreciation of the injuries at a time contemporaneous with that assault. This included diplopia ('double vision'), floaters and a disturbance of sensation infraorbital nerve. Dr Martin then identified the 'problems' at the same time as including infra orbital paraesthesia (loss of sensation).
10. As at 6 February 2015, Mr Best was aware that he had suffered a "very serious injury". By then, he had undergone two instances of surgical treatment.
11. At least from 6 February 2015 until he saw Dr Martin again on 1 October 2015, although there were some improvements, he continued to experience double vision (on elevation) and restriction in elevation. I infer that the observations made by Dr Martin on 1 October were no less applicable in the period from 6 February to 17 August 2015. Put another way, insofar as his eye injury was concerned, there was no suggestion that the problems and difficulties that Mr Best had experienced in January and February 2015 had gone away by 17 August 2015.
12. In my view, Dr Martin's views on 30 January 2018, whilst they may have differed in degree, were not dissimilar from what he found in January and February 2015. Thus, a medical opinion, had it been obtained prior to 17 August 2015, would have supported a claim. I would add that, by January and February 2015, Mr Best had also complained of physical injuries to other parts of his body (although it appears that these problems had gone away by August 2015).
13. Mr Best contends that the effects or disabilities from his eye condition, as he had described them, had diminished his capacity to earn and his enjoyment of life. I do not regard those effects or disabilities becoming manifested for the first time only after 17 August 2015.
14. The nature of the cause of action was an intentional tort: assault. Absent unusual circumstances, so long as a claimant could prove (on the civil standard of proof) the intentional infliction of force (without consent), it was a relatively straightforward action to establish [2] . By 17 August 2015, after his second treatment for surgery on his left eye and with lingering complaints of physical injuries to other parts of his body caused by an assault, had Mr Best consulted a lawyer for advice about his rights to sue, in my view the lawyer would have informed him that, upon the assumption that his version of what had happened was accepted, he had (at least) a reasonably arguable action for damages for personal injury caused by an intentional tort [3] . Indeed, the strength of the prospects of success in establishing liability and proof of injury was assisted by Mr Best having taken contemporaneous photographs of his eye injury.
15. Further, as has ultimately occurred, Mr Best brings a claim for aggravated damages. That claim is centred only upon Mr Rosamond's conduct in perpetrating the assault. It is likely that a hypothetical lawyer consulted prior to 17 August 2015 would, acting on the basis of instructions, have taken the same view to Mr Best's subsequent lawyers (who filed this proceeding on his behalf) that it was also arguable that he might have a valid claim to aggravated damages. Certainly there was nothing that happened after 17 August 2015 to support a claim of aggravated damages that was not already apparent before that date. If that was so, then it could substantially inflate the damages award which Mr Best would ultimately recover.
16. I accept that, if I was to believe Mr Best's evidence that he began to struggle from the emotional impact of the assault only later in October 2015, his belief in the desirability of bringing a claim (embracing, perhaps, a claim of mental harm) would have developed. That may not have been apparent by 17 August 2015. If there were indications of symptoms of mental harm prior to that date, the hypothetical lawyer might have told Mr Best that there were some prospects, which needed to be confirmed, with the benefit of further investigations, of adding to the claim for damages a claim for mental harm; and that claim, if it was made good, carried the prospect of substantially increasing the amount of damages recoverable. But for reasons I have referred to, in my view, Mr Best already had enough knowledge (for the purpose of s 50D(c)) of the material facts to lead a reasonable person in his position to believe he had a potentially good claim for a not insubstantial sum of damages. A potential claim for a claim for mental harm, not known prior to 17 August 2015, may have inflated the quantum, but it did not detract from a finding that, Mr Best taken reasonable steps to obtain legal and medical advice prior to 17 August 2015, he would have known that his injury was sufficiently serious as to justify bringing an action on the cause of action which (by reason of his admission of the knowledge of facts in s 50D(1(a) and (b)) Mr Best knew was available against Mr Rosamond.
17. Mr Best says that, his knees, hands and ribs had cleared up not long after the assault and that he hoped that his eye injury would heal, with exercises that he had been given. But his evidence indicated that the symptoms and disabilities of his eye injury did not heal prior to 17 August 2015. He says it took a long time for him to understand what was happening and he tried his best to lead a normal life. He says it was only after approaching his current lawyers (in about August 2018) that he came to the realisation that he had a claim. He said that it was only about then that the severity of the injuries, and their lasting effects, had "dawn(ed)" upon him.
18. All of this goes to his subjective knowledge and must be weighed, but s 50D(2) indicates that knowledge is also to be assessed objectively. Prospective claimants for a civil suit might have a range of reasons not to seek professional advice as a reasonable prospective claimant would do. To take a hypothetical case slightly removed from Mr Best's circumstances, a claimant in Mr Best's position that, because of any sense of regret for his own conduct that gave rise to the infliction of the injury, his past friendship with the assailant (and any desire to repair the damage to that friendship) might delay bringing a claim. Closer to the present circumstances, a claimant may have a stoical desire to try to wait and see how the consequences of the injury may play out over an indeterminate period of time, and this may cause a claimant to refrain from obtaining legal advice as to rights associated with whether a claim was available.
19. In both of the above cases, to accept that subjective reasons of this kind for the omission to seek professional legal advice would lead a Court to find that the fact in s 50C(1)(c) was not known to the claimant would undercut the legislative prescription for knowledge in s 50D(2) and, effectively, convert the test into a subjective matter. As Basten JA noted in Baker-Morrison, at [37], with recourse to extrinsic material, the legislative policy in s 50D(2) is to give prominence to an objective standard. In this case, I am not satisfied that the omission of refraining to obtain legal advice was reasonable. Further, in my view, not only did Mr Best know that his eye injury was a serious injury prior to 17 August 2015, but he also knew of the enduring effects of the eye injury prior to that date which, on his own case (supported by medical evidence) have continued to this day. He was also possessed knowledge of fact which, to a reasonable prospective claimant, would make out a good claim to aggravated damages.
20. In my opinion, therefore, the fact in s 50(D)(1)(c) is also established. Mr Rosamond has made out his Defence such that Mr Best's claim must fail.
21. On the contingency that I am wrong, however, I will go on to consider Mr Best's claim and the other issues that arise.

Credit

1. The question of the credibility of each of Mr Best and Mr Rosamond is important on a number of levels. It is relevant to consideration of the extent of the assault, the extent of the injuries and disabilities occasioned by the assault, the expert evidence (especially that of the psychiatric evidence) based upon what he had told the specialists, and also Mr Best's claim for aggravated damages.

Mr Best

1. When he gave evidence Mr Best gave the appearance of an intelligent, articulate gentleman. But I did not regard him as being a satisfactory and reliable witness. He did not, for example, when he gave his evidence in chief, provide a full account setting out the context in which the assault occurred. It was only prised out of him during cross-examination that he at least accepted that he and Mrs Rosamond had been involved in a "brief intimate kiss". I did not regard this omission as accidental but rather an apprehension on his part that the context for the assault may not assist his case: it might, for example, show Mr Rosamond's behaviour in a (marginally) more sympathetic light. This concealing of relevant evidence was consistent, as I read his police statement, with his dealings with the police. He was very conscious of the effect of his evidence upon his interests. For example, after he had been essentially manoeuvred into the position, when under cross-examination, of indicating that he had little contact with Mrs Rosamond after the assault, and when he had been presented with objective evidence to falsify that position, he quickly tacked to the position that there may have been more contact than he had previously given evidence about. Sometimes, also, under cross-examination he added gratuitous and non-responsive commentary which I inferred was intended to further his interests. Because of these matters, I am not prepared to accept his evidence unless corroborated by other evidence or would otherwise be consistent with the probabilities.

Mr Rosamond

1. Mr Rosamond generally gave evidence in what I regarded as a measured and contrite fashion. He did not seek to (and, it must be said, could not realistically) hide from the facts of his conviction and punishment for his assault upon Mr Best. That said, I accept that he was somewhat evasive and certainly uncomfortable, when he was cross-examined about the extent of the assaults that he perpetrated upon Mr Best. This included the somewhat equivocal reliance by him upon the admitted circumstance that he had been intoxicated at the time of the assault. It appeared to me, that in relation to the evidence on the extent of the assault, he was straining to move away from admissions that he had made to the police. It is perhaps pertinent, to observe, that someone who is charged with criminal offences may have a range of reasons or motivations for entering into pleas and agreeing to statements of fact generated for the purpose of sentencing proceedings. It remains the case, however, that he voluntarily made those admissions; and they remain a powerful indicia for proof. Mr Rosamond was, I consider, trying to dilute the effect of those admissions. I note also, in this regard, that it was only on the date of the hearing that he was prepared to admit that he had assaulted Mr Best, and his approach, so it seemed to me, was to needlessly prolong the case on liability when it should have been readily apparent that he would have difficulties in mounting any reasonably arguable defence in that regard (save as to the time bar defence).
2. Nevertheless, certain objective circumstances that occurred after the assault indicated, including his early plea, his subsequent (albeit limited) contact with Mr Best without incident, his continued business dealings with his former wife at least for a further period of months despite the evidence that he slapped her, which matters were not seriously contradicted on Mr Best's behalf, suggested to me that he was genuinely contrite. There were no other matters, either before or after the assault, which Mr Best relied upon to indicate any discreditable conduct by Mr Rosamond which would cause me to doubt his credibility or reliability as a witness. Nevertheless, I am mindful of the potentially significant financial consequences for Mr Rosamond in the event of an unsuccessful defence of this proceeding which, I infer, he would also have been conscious of. In those circumstances, notwithstanding my generally positive view as to his reliability, I am cautious about accepting Mr Rosamond's evidence in the absence of corroboration, or unless it is consistent with the objective probabilities are.

Jones v Dunkel inference concerning Mrs Rosamond

1. Mr Rosamond's former wife did not give evidence. I was informed from the Bar table that she became divorced from Mr Rosamond in either March or September 2017: on either basis, well before Mr Best commenced this proceeding. It appears that they separated in about April 2015, only a few months after the assault.
2. There was evidence which certainly confirmed a 'closeness' (to use a neutral description) in the relationship between Mr Best and Mrs Rosamond after the assault: she subsidised a visit by both of them to the Blue Mountains; she arranged and paid for necessary accommodation for them to allow them to attend Derby Day at Flemington in November 2018; Mr Best was responsible for providing gifts to her children; and Mr Best had provided, at least, moral support for Mrs Rosamond in various legal proceedings which she has been involved since the events of this proceeding. It even emerged that Mr Best had dined with her a couple of nights before he gave evidence.
3. Counsel for Mr Rosamond submitted that I should draw a Jones v Dunkel inference against Mr Best for his failure to call Mrs Rosamond. She submitted that there were a number of important issues for which she had relevant evidence to give and, given the closeness of their association, it would have been expected Mr Best to have called her. These issues principally included (without limitation) the circumstances leading up to the assault. That would have an important impact upon the credibility of Mr Best which was, itself, bound up with his claims concerning the extent of his injuries and disabilities as well as his claim for aggravated damages.
4. Counsel for Mr Best submitted that it could not be said that Mrs Rosamond was solely in Mr Best's camp, that she was equally available to Mr Rosamond (she had been subpoenaed to attend) and that no adverse inference should be drawn against either party for the circumstances she did not give evidence.
5. Although it was not elaborated in any detail, it emerged (incidentally) throughout the hearing that Mrs Rosamond is currently the subject of very serious criminal charges relating to fraud that are currently before the Local Court. The Court is also not (or should not be) oblivious to the fact that those charges and indeed, Mrs Rosamond's arrest, have generated significant negative publicity for her.
6. It was also apparent, although again not touched upon in any detail, that relations between Mr Rosamond and Mrs Rosamond have not appeared to be amicable since their separation. During the trial, Mr Rosamond led evidence to the effect of his being excluded from the management of a number of the companies within the group controlled by Mrs Rosamond; that apprehended violence order proceedings had been raised against Mr Rosamond and they appear to have been involved in contested proceedings in the Family Court of Australia.
7. In Payne v Parker (1976) 1 NSWLR 191 at 201-2, Glass JA said that the rule in Jones v Dunkel cannot be applied to the non-calling of a witness unless it would be natural for the party to call the witness, or that the missing witness would be expected to be called by one party rather than another.
8. I note, also, that even if the conventional rules for establishing the inference are available, it remains a matter for the Courts' discretion as to whether the inference should be drawn.
9. I am not, in the circumstances, inclined to draw a Jones v Dunkel inference against Mr Best for his failure to call her as a witness. It seems to me that in the current circumstances, she was likely to have a clear partiality towards Mr Best as well as, conceivably, an antipathy towards her former husband. Under her current predicament, she would be a reluctant witness (hence the requirement for a subpoena for her attendance). She would very likely have been subjected to a vigorous attack on her credit in respect of whatever evidence she gave. This may in turn, have given some rise to prejudice as to her ability to defend the charges against her. In these circumstances, a plausable reason why Mr Best did not call her was because he may not have known what Mrs Rosamond might say [4] and/or whether she might be regarded as a credible witness.

Mr Best's evidence

1. Mr Best's evidence was that he had left the premises at about 3:30 AM. He intended to go home and to do so, walk to the end of spit Road to get a taxi. The Rosamond's premises were only a three minute walk away. Mr Best recalled leaving the premises and walking with Mrs Rosamond along the street. At about the point where he was about one house away, he recalled Mrs Rosamond calling out "Geoff!" At this point, Mr Best recalled that he was facing away from Mr Rosamond. He said he recalled turning around. Rosamond came towards him and hit him on the left eye. He said he was stunned. He said Mr Rosamond continued to hit him on his head. He recalled being hit on the back of his head. He recalled falling to the ground and being kicked by Mr Rosamond on his left side three or four times. He was left on the ground facing, or close to the Rosamond's house. He then saw Mr Rosamond approach Mrs Rosamond, struck her and kicked her to the ground.
2. He then recalled getting up before Mr Rosamond returned to him again to punch him in the face and kick him to the ground. After this, Mr Best recalled Mr Rosamond shouted at Mrs Rosamond. Meanwhile, Mr Best said he got out of the vicinity and moved down the road, sat down and then recalled passing out for a period of nearly three-quarters of an hour.
3. Thereafter he woke up, went to the Spit Road and managed to get the taxi home.

Mr Rosamond's evidence

1. Mr Rosamond's evidence was that he was proposing to go to bed in the early hours after the party and his former wife told him that she would be up straightaway. He accepted that he was intoxicated as a result of the consumption of liquor - he had been drinking since about 1 or 2pm on the previous day. After a period of time his former wife had not returned. Mr Rosamond explored where she might be within the home and couldn't find her. He noticed her shoes near the front door. He walked out to find her and went beyond the front gate and moved to a position a few houses along where he found his former wife in, what he had identified as a "sexual embrace", including "thrusting" by Mr Best and the movement of his hands. Mr Rosamond perceived that his former wife was in a distressed state. He said he waited for Mr Best to apologise. When that was not forthcoming he struck him.
2. He said he only struck Mr Best in the face once. He did not recall striking Mr Best on the back of the head nor did he recall kicking him on the ground numerous times. He disputed that he did these things without provocation although he accepted that he was not threatened by Mr Best. He said in cross-examination that he was not aware that by hitting Mr Best he would cause injury.
3. Mr Rosamond thereafter spoke to his then wife who said to him that she had simply received a "harmless kiss" from Mr Best. Mr Rosamond slapped her after this and recalled saying the words "not with him". Mr Rosamond recalled crying, running into the house where he found others and admitting that he had punched Mr Best and slapped his former wife. Thereafter, he said he left his home and ran, barefoot, through the bush to the Spit Marina, before spending the night on his boat.

Determination

1. I consider that the assault arose in circumstances where firstly, Mr Rosamond, still under the intoxicating effect of liquor, was looking for and concerned of the whereabouts of Mrs Rosamond. He had been told by Mrs Rosamond that she would shortly be joining him in bed, and when that had not occurred he looked in various places around the house. He saw her shoes at or near the front door. He ventured outside his home and walked along the street. It did not take him long to identify that his then wife was in a physical embrace with Mr Best, hitherto his closest friend and confidant. At the very least, he observed them kissing. This enraged Mr Rosamond. I think it is likely that as Mr Rosamond moved closer to his wife and Mr Best, his wife was startled and called out Mr Rosamond's name. At this point, Mr Best was still in an embrace with Mrs Rosamond and had his back turned to Mr Rosamond. Mr Rosamond perceived, rightly or wrongly, that his wife was 'distressed'. When Mr Best turned around, he was struck by Mr Rosamond in the front of the head. The reasons for Mr Rosamond's assault were not all that clear. It appears unlikely that Mr Rosamond could have perceived that his wife was the subject of any kind of sexual assault by Mr Best - from his vantage point, it would not likely have appeared that she was resisting Mr Best's embrace. It may have been some sense of jealousy. It may have been from a sense of betrayal in the conduct of his closest male friend. None of these possibilities were the subject of admission by Mr Rosamond beyond a generalised statement that he was shocked about what he saw.
2. I find that Mr Rosamond punched Mr Best at least once in his left eye. He also kicked him, when Mr Best had fallen to the ground. This is consistent with Mr Rosamond's admissions made to the police.
3. The question for present purposes remains whether he had punched Mr Best more than once, and kicked him more than once, in multiple sequences separated in separate, albeit, short, intervals.
4. I consider that Mr Rosamond did punch Mr Best more than once. I doubt that a single punch could have been sufficient to have caused the extent of the injury to Mr Best's left eye.
5. I am not, however persuaded, beyond this, that the events were fully as Mr Best described. This particularly relates to Mr Best's complaints of injuries to his knees and other parts of the body, including his left ribs, being caused by the assaults. Specifically, in circumstances where Mr Best did take the trouble to take a contemporaneous photograph of his left eye (presumably for the purpose of compiling proof of the assault), it is surprising that no such photograph or photographs were taken of other parts of his body.
6. Although I consider that the assault was perpetrated in circumstances where Mr Rosamond was intoxicated, I do not consider that he was so entirely bereft of his intellectual faculties to have so totally lost his self-control in a way which would cause the assault to be perpetrated over the different intervals of time identified by Mr Best.
7. In saying this, based upon his admission to the police, I accept that Mr Rosamond kicked Mr Best once when the latter was on the ground. But even in the enraged state of mind he was in, influenced as that state of mind was by his liquor consumption, I am not persuaded that he kicked Mr Best more than once.
8. This is not a criminal proceeding. Nevertheless, by the terms of s 140 of the Evidence Act, applicable for civil proceedings, a relevant consideration in determining the issue of the extent of the assault, is the gravity of the allegation. I consider it is necessary for there to be cogent proof by Mr Best of the particulars of the assault he says were perpetrated upon him by Mr Rosemond. That being so, and in view of my own previously expressed doubts about Mr Best's credibility, I find that the assaults by Mr Rosamond were confined to two punches and one kick to Mr Best's body.

Mr Best's evidence

1. Immediately after the assault, Mr Best recalled feeling huge pain on the front and back of his head. Specifically, he felt that his left eye was locked up. He felt pain in the left side of his body and recalled that his hands were grazed. When he woke up the next morning, he said that his hands were hurting and that he had bruised ribs on his left side, both his knees were hurting and he could not see out of his left eye.
2. On 15 January 2015 Mr Best attended the Sydney Eye Clinic. A CT scan of orbits was performed. It found a fracture involving the left orbit floor with herniation of the mid portion of the left inferior rectus muscle and an infraorbital fat into the left maxillary sinus. He was referred to an ophthalmic surgeon.
3. On 23 January 2015 Dr Peter Martin, an ophthalmic surgeon, operated on Mr Best to repair a blowout fracture of the left eye by installing mesh. He was discharged from the Sydney Eye Clinic the next day. Mr Best said in his evidence that by now, his knees and hands had started to heal; as was the case with the left side of his body (though that was still bruised).
4. But it remained the case that he was unable to move his left eye.
5. On 6 February 2015, Dr Martin operated on Mr Best again, to explore the left orbit and reinsert a medpore implant.
6. Following this, Mr Best said he continued to experience double vision; he was light -sensitive, experienced numbness and episodes of stabbing pain.
7. Mr Best consulted Dr Martin again on 1 October 2015. A CT scan was performed and it was suggested that he undertake further surgery to improve the articulation of his left eye. But Mr Best did not pursue this: he had decided to leave things and try to live with the injury. He said he had no problem with the rest of his body - it was his eye injury that was the only physical injury.
8. As to the future, Mr Best was asked whether he would undertake treatment. That was a reference to psychiatric treatment. He said he thought it would be wise to do so, but said he found it difficult to accept undertaking medication and further hospital treatment.

Dr Martin

1. Dr Martin, the ophthalmic surgeon who operated twice Mr Best in January and February 2015, prepared a report dated 30 January 2018. It was not, on its face, addressed to anyone, and there was a dispute as to the purposes for which it was prepared. There were no other reports prepared by Dr Martin in January or early February 2015, or notes prepared by him.
2. Dr Martin did record that when he first saw Mr Best, he had found diplopia, floaters, blurring of vision and a disturbance of sensation infraorbital nerve.
3. Dr Martin also noted a prior history of Lasik surgery in 2005. He inserted in his report the following reference: "visual acuity at one week post-surgery right 6/12 left 6/6 unaided. Traumatic Mydriasis."
4. Traumatic Mydriasis is what Counsel for Mr Rosamond (with the benefit of Webster's Medical Dictionary) identified as excessive or prolonged dilation of the pupil of the eye. There was conflict between the parties as to whether this reference by Dr Martin was a reference to a residue from the previous Lasik surgery in 2005 (as Mr Rosamond contended) or as a result of the surgery performed on 23 January 2015 (as Mr Best contended). The significance of the conflict is the question of whether any subsisting condition of traumatic mydriasis, was entirely attributable to Mr Best's eye condition prior to his assault and could in no way be regarded as being caused (or perhaps more accurately aggravated) by the assault on 10 January 2015.
5. Returning to Dr Martin, his observations, at the time he saw Mr Best in January 2015, was restricted elevation of the left eye and infraorbital paraesthesia. After further surgery had been performed in February 2015 (which have involved exploration of the orbital floor), Dr Martin observed downgaze diplopia on elevation. Floaters persisted but only occasionally in the left eye.
6. When he saw Mr Best again on 1 October 2015, a CT scan showed an implant was in good position with some tendering in the posterior orbit.
7. When Mr Best saw Dr Martin again on 30 January 2018, for an update of his clinical picture, Dr Martin noted that Mr Best's complaints were: (1) light sensitivity due to Traumatic Mydriasis (also called damaged pupil Sphincter); (2) problems with focusing for near; (3) double vision when looking up; (4) aware left eye droops and closes when tired; (5) black dot/floaters in peripheral vision left eye; (6) sharp pain and occasional dull pain around left eye occurring every three weeks; (7) disturbance of sensation in the region of the cheek and extending to the front teeth.
8. However, following his examination, Dr Martin summarised his observations as to Mr Best's concerns as being: 1. double vision, above the primary position; 2. sensory disturbance, where Mr Best had hypersensitivity; 3. the floater remaining a constant problem albeit that it rarely causes distraction; and 4. light sensitivity due to the Traumatic Mydriasis.
9. He positively said that he did not regard the issue of focus as being likely to have been concerned with the assault.

Dr Delaney

1. Dr Michael Delaney, an ophthalmic surgeon, examined Mr Best on 27 November 2018, more than three and a half years after the assault. It is fair to say, I think, that Counsel for Mr Best did not place a large amount of reliance upon Dr Delaney's opinion, other than to cite his diagnosis described as follows: "… The greater reduction in the uncorrected near vision of the left eye is due to the effects of the dilator to pupil caused (traumatic mydriasis) by the assault. Mr Best suffered a blowout fracture of the left orbit in the incident described above and this is the direct cause of the restriction of upward movement of the left eye resulting in the double vision noted above. The orbital fractures are also the cause of the traumatic infraorbital neuropathy resulting in altered sensation over the distribution of the infraorbital nerve. Mr Best's floaters are due directly to the changes in the vitreous gel caused by the assault. His pain over the left side of face has been caused by the traumatic infra orbital nerve neuropathy."
2. There was no cross-examination of Dr Delaney.

Clinical records of the Sydney Eye Clinic

1. These were put into evidence by the plaintiff; but neither party referred to them in their closing submissions. This was after I had indicated to Counsel that they should not assume that I would consider evidentiary material not specifically referred for my consideration. I do not consider it necessary to refer to them.

Mr Best's submissions

1. Mr Best referred me to the extent of his on-going problems with his eyes, as detailed in Dr Martin's report from January 2018. Specifically, he placed reliance upon Dr Martin's opinions concerning, among other things, the constant problem of double vision and frequently occurring pain around the left eye, as well as sensory disturbance in the region of his face and extending to his front teeth, as well as a hypersensitivity in the distribution of the infraorbital nerve; which was unlikely to recover below.
2. Counsel for Mr Best also referred me to the medico-legal opinion of Dr Delaney, an ophthalmic surgeon; who affirmed the continuing problems concerning double vision and altered sensation over the distribution of the infraorbital nerve.
3. Counsel for Mr Best submits that none of this medical evidence was challenged so I should find that Mr Best continues to suffer a significant ophthalmic condition and ongoing psychiatric condition.
4. In his submissions in reply, Counsel for Mr Best also submitted that, pursuant to authority such as Purkess v Crittenden, if Mr Rosamond sought to persuade the Court his problems with his eye were the result of pre-existing injury, prior to the assault, he bore the burden of 'dis-entangling' the true cause of the problem.

Mr Rosamond's submissions

1. Counsel for Mr Rosamond submits that the medical evidence, though not challenged by competing evidence, should be accorded little weight. If I was to find that Mr Best exaggerated the extent of the assault to which he was subjected, or the injuries occasioned by the assault, or histories, to any or all of the medical specialists, then their evidence had no foundation.
2. Secondly, she said that I should find many of the items of ongoing concern about his left eye problem identified by Dr Martin in his 30 January 2018 report (i.e. those numbered one, two, four and six) were, in fact, referable to pre-existing eye problems, were not attributable to the assault and, further, it was to Mr Best's discredit that he tried to allocate responsibility for those particular problems to Mr Rosamond.

Nature of the eye injury

1. It is common ground, and I accept, that the plaintiff continues to suffer disabilities with his left eye. There was no effective challenge to the accuracy of Dr Martin's findings of the current disabilities. The only real issue raised by the defendant was what was the cause of them.
2. On the discrete question of whether any Traumatic Mydriasis was a pre-existing condition in no way caused or aggravated by the assault, I find that it was not. First, I agree with the submission of Counsel for Mr Best that, in circumstances where there is clear prima facie evidence that it was the intentional assault that caused the eye disabilities, an evidentiary onus shifted to Mr Rosamond to persuade me that foreseeable consequences of the assault were caused by some pre-existing condition. Secondly, Mr Rosamond did not seek to have Dr Martin cross-examined on this (or any other) point. Thirdly, Mr Rosamond did not seek to have Mr Best examined by his own ophthalmic surgeon to consider this point.
3. It follows that I find that the cause of the particular complaint of light sensitivity is referable to the assault.
4. I give greater weight to the views of Dr Martin, which were expressed prior to the commencement of the proceeding and which canvassed information he had acquired from Mr Best back in January and February 2015, over those of Dr Delaney (where they diverged). Dr Delaney's report was prepared for medico-legal purposes in this litigation and his opinions would likely have been affected by information provided to him by Mr Best in that context.
5. I accept the views of Dr Martin as to his assessment of Mr Best's concerns, being: 1. double vision, above the primary position; 2. sensory disturbance, where Mr Best had hypersensitivity; 3. the floater remaining a constant problem albeit that it rarely causes distraction; and 4. light sensitivity due to the Traumatic Mydriasis.

Alleged psychiatric injury

1. On the matter of his psychiatric condition of PTSD, I note that Dr Clark, when conducting a psychiatric examination, said that Mr Best experienced no signs or symptoms of psychosis; with no experiencing of hallucinations, expression of delusionary beliefs but had normal thought systems. On an intellectual state examination, his general orientation, recent memory and mental rationalities were intact. The way that Mr Best gave his evidence before the Court tended to confirm these views: as I have indicated, I considered his mental faculties to be highly acute. But Dr Clark noted, in a very general way, that his "emotional" state belied the sense of normality with his intellectual state.
2. Not surprisingly, Dr Clark diagnosed PTSD with reference to the criteria from the DSM-5. He marked the relevant criteria in bold. However a difficulty with the presentation of the opinion in this way is that the reader of this report is not able to see what was the underlying factual basis upon which Dr Clark determined the application of each of the criteria. This is not something that, it would reasonably be expected, Counsel for Mr Rosamond would be expected to tease out in any cross-examination of Dr Clark.
3. To some extent, the information that Mr Best supplied to Dr Clark corresponded, broadly enough, with what he said in evidence before me (in chief): that he was not as sociable as he once was; that he was anxious about large crowds, that he continued to fear (or dream about) Mr Rosamond.
4. However, in my opinion, these internalised and subjective concerns of Mr Best were significantly falsified in cross-examination. I agree with Counsel for Mr Rosamond that it was inconsistent for him to profess a fear of large crowds at social occasions at which substantial liquor is consumed, whilst appearing to be happily photographed at Derby Day in Melbourne as part of the Melbourne Cup festival. I agree it is inconsistent to express fear of contact with Mr Rosamond, whilst being present, without incident or concern, in the latter's company for either social purposes or, even repeated Court attendances involving Mrs Rosamond. (In no way, to my observation, did he flinch at being in the same courtroom as Mr Rosamond at this hearing).
5. These events, which occurred prior to Mr Best seeing Dr Clark, do not appear to have been drawn to Dr Clark's attention. Had they were, I expect that they would have had a material effect upon the accuracy of the diagnosis that Dr Clark found.
6. I am also mindful that there was no indication of any objective assessment of any complaints by him, or concerns of professional service providers, for Mr Best's mental health prior to his assessment by Dr Clark on 14 February 2019, virtually 4 years after the assault. Mr Best himself called no evidence from those close to him to corroborate those complaints. To the contrary, to all appearances, and certainly in the way he gave his evidence in Court, he presented as a man confident and secure in himself.
7. I am conscious of the defendant's not putting on psychiatric evidence to match that of Dr Clark. But I am also conscious that in the field of psychiatry, so much of the accuracy and therefore the weight to be given to evidence of that kind depends upon proof of the history and views of the patient seeking the treatment. Where, as in this case, I have significant doubts about the credit of Mr Best, I am not persuaded that he has PTSD or another significant psychiatric condition.

Mr Best's evidence

1. Mr Best derived his working income from his business, called "Cummins Classic Cars Pty Ltd".
2. In his evidence in chief Mr Best was asked to describe the impact of his impaired vision upon his work. He said that it made certain jobs more difficult and some jobs impossible. By this he explained that in relation to the manual aspects of his job, such as rewiring the car, and having to get up behind a dashboard, he said he might have to close one eye and ordered in order to get some clarity and accuracy in what he was doing. He said that getting under a car cause problems for him: when he was looking at various components he would have to look up and this was a problem given his difficulties with double vision.
3. Mr Best did say that he had one mechanic who worked for him. He was the sole director. He said that in the business that he ran, essentially the restoration of classic cars, income could fluctuate: some of the jobs took a number of years to complete and cash flow issues may follow arising from a large amount of work in progress.
4. Under cross-examination, Mr Best said that he spent most of his working day doing clerical matters in the morning and then doing about half a day's work on the rest of the day. He explained that the majority of his company's profit was not in fact the sale of cars. There are three different profit streams: (a) labour; (b) sales of parts; (c) car sales.
5. It was put to him that given his longevity in the industry and the goodwill he had built up in his business, his disability with his eye would not affect his ability to sell cars. Mr Best accepted that he had a stable client base (at least for the repairs side of the business) - his clientele were persons who were independently wealthy and they were "good payers". To the extent that revenue may have diminished, it was the sale of his cars. Mr Best disputed that for the sale of the cars, this would be influenced by broader economic conditions: he said that there was only a finite supply for classic cars.
6. Mr Best did not adduce any expert or independent evidence as to future economic loss.

Tax returns and financial statements for the company

1. Profit and loss statements that were put in evidence in respect to the business showed the following gross income for the financial years ended 30 June 2012 to 30 June 2018. FYE Gross income 12 $256,819 13 $291,731 14 $280,983 15 $225,509 16 $229,002 17 $262,744 18 $177,569

Past out of pocket expenses

1. These are agreed between the parties as being $1,248.35.

Future out-of-pocket expenses

1. Counsel for the parties said very little about this head of damage. Counsel for Mr Best exclusively focused upon the prospect of future treatment for Mr Best psychological/psychiatric condition. As I have already indicated, I do not accept that Mr Best has suffered psychiatric injury. Further, Mr Best did not appear to have found significant benefit from the existing psychological treatment he had received to date, nor very receptive to seeking further psychological treatment.
2. In terms of his eye injury, Dr Delaney said that there was no further treatment possible. This was in a context where in 2015 Mr Best was offered, but declined, further surgical treatment having regard to the risks involved. There was no opinion offered by Dr Martin as to whether there would be a need for ongoing medication to assist him.
3. Counsel for Mr Rosamond, in her schedule of damages, submitted that an allowance for future out-of-pocket expenses should be made for $5,000.
4. I accept that this is an appropriate allowance for this head of damage.

Mr Best's evidence

1. Mr Best said in his evidence that the assault has affected his social life. He was nowhere near as sociable as he was before the assault. He feels 'hyper-vigilant' and fears violence. He said he experienced periods of depression. He said that bad dreams re-occurred; and that those dreams had featured Mr Rosamond.

Parties' submissions

1. The parties' respective Schedule of Damages showed that they were far apart on the award for General Damages. Mr Best claimed the sum of $350,000. Mr Rosamond submitted that this head of damages was worth $50,000.
2. Had the matter of compensation for this head of damage (differently described as 'non-economic loss') been determined under the Civil Liability Act, the legislative regime would authorise me to consider other cases in which such awards had been made (s 17A). Whilst cognizant of the circumstances that each case turns upon its own facts, I do not consider that I should be any less restricted in considering broadly comparable cases in evaluating an appropriate sum for this head of damage under general law. Accordingly, Counsel were invited to draw to my attention to any authorities that they thought may assist the Court.

Decision

1. General damages are generally taken to encompass the discrete heads of damage of pain and suffering, and the loss of amenities or enjoyment of life.
2. I have noted my findings that the assault occasioned serious and enduring physical injury to a man, at that point, in his mid-50s. The medical evidence, particularly that of Dr Delaney, indicates that the effects of the disabilities identified by Dr Martin are not now susceptible to further treatment. This will result in some loss of amenity and enjoyment of life. It will also diminish, to some degree the enjoyment that Mr Best derives from his work.
3. I have indicated my scepticism about Mr Best's claims of social anxiety and fear of Mr Rosamond. He strikes me as an affable and highly sociable man.
4. But I would not be surprised if this shocking incident would at least have left a legacy in Mr Best of wariness and apprehension that his person may not be subject to attack in the future. I am inclined to accept his evidence that, as a result of the assault, he has since preferred the social company of a smaller group of friends and associates.
5. I refer to the effects of the assault upon Mr Best's earning capacity below. It is important not to double compensate, in making separate awards for general damages and loss of earning capacity, as a result of any diminution of Mr Best's sense of fulfilment arising from the impairment of his working capacity. It is also important not to double compensate him in a general award for can compensatory damages and any award for aggravated damages, the latter of which I consider below.
6. In my view, the sum of $60,000 would be an appropriate amount for this head of damage.

Mr Best's submissions

1. Counsel for Mr Best submits that the plaintiff will suffer restrictions in his earning capacity, due to his inability to engage in the physical aspects of his work; particularly in areas where vision is either essential or important.
2. Counsel did not differentiate between an award for past economic loss or future economic loss. He submitted that a buffer sum should be awarded in the order of $150,000-$200,000 to reflect Mr Best's particular circumstances; including the circumstances that he is currently 59 years of age with a potential future earning capacity for another 11 years. This sum, he submitted, would factor in an allowance for loss superannuation. Counsel accepted that the award of a buffer sum would also factor in vicissitudes.

Mr Rosamond's submissions

1. Counsel for Mr Rosamond was brief in her submissions. The principal point she made was that there was no demonstrable loss for the past four years - there had been no significant variation in the income of the company over this period of time. She referred to Mr Best's evidence of a solid client base and that his eye injury did not affect his capacity to act as a salesperson.
2. She did not dispute that if any award was to be made this head of damage (past or future), it should be by way of a buffer sum. As to past economic loss, the final position was that a sum could be awarded for $10,000. For the future, she submitted that a figure of no more than $5,000 would be appropriate.

Determination

1. In my view, given his age, I do not consider that at this point of his career, Mr Best would be engaged in any serious manual work concerning the restoration of cars; particularly as he has a mechanic. There was little detail about the amount of physical labour he actually engages in. It would seem more likely to me that a person of Mr Best's personality and the reputation and goodwill he has built up over the years is more likely to see him having personal contact with clients and performing more of a supervisory role over the day-to-day running of his business. That said, I think it is likely that for someone like Mr Best, who appears to have a passion for the restoration of classic cars, at least some part of what he does in his business has involved a manual component. Following the injury to his eye caused by the assault, his ability, since the assault, and for the likely future, to engage in the more manual component of his work has been impaired.
2. Tax returns and other financial statements for the company, whilst relevant, are far from determinative to assessing the value of the impaired capacity, since the accident, and into the future.
3. I accept the submission from Mr Best's Counsel that an award for a buffer sum is appropriate. In determining the amount of that sum, I expect that not all of the problems associated with Mr Best's left eye, or physical working capacity generally, for the remainder of his working life, will likely have been caused by the assault; as distinct from the natural effects of the ageing process, or Mr Best's pre-assault eye condition. I am mindful, here, of indications in Dr Martin's report, when he saw Mr Best back in January 2018, that to some degree, the concerns which he complained were not, in Dr Martin's view, attributable to the assault.
4. Had it been necessary, I would have awarded Mr Best a sum, representing past and future diminution in earning capacity for the sum of $75,000.

Aggravated damages

1. This award of damages is made in situations where the defendant's conduct has caused insult or humiliation to the plaintiff's feelings: Lamb v Cotogno (1987) 164 CLR 1 at 8. In New South Wales v Riley (2003) 57 NSWLR 496, Hodgson JA emphasised (at [131]) that in cases where ordinary compensation for damages to injured feelings forms part of the award for pain and suffering, care must be taken to avoid double compensation under the award for aggravated damages. I have been especially mindful of this cautionary observation in determining the amount of award for general damages.
2. Counsel for Mr Best submitted that this was an attack made by Mr Rosamond upon Mr Best who at one stage was described as his best friend. Aside from the physical effects of the assault to Mr Best's left eye, including pain, he also suffered generally in the context of the assault: it arose in the context of the conclusion of a social and convivial occasion in early January in summertime Sydney. Whatever part that Mr Best had in causing the attack upon him, the assault must have come as quite a shock; and Mr Best had done nothing to threaten Mr Rosamond. The circumstance that, as I have found, he was not only punched, but also kicked on the ground clearly establishes hurt feelings and a profound sense indignity in him.
3. Counsel for Mr Rosamond submitted that it was relevant to an evaluation of this award as to the circumstances in which the assault was made. She also emphasised the closeness of the friendship but she also emphasised the generally good character of Mr Rosamond and his concern for his wife. She submitted, further, that allowance should be made to the circumstance that Mr Rosamond was provoked to commit the assault by what he saw had gone on, as between his wife and Mr Best.
4. In my opinion, the matters relied upon by Mr Rosamond consider this matter from his perspective, whereas the principle is to be seen from the perspective of the plaintiff: New South Wales v Ibbett [2006] HCA 57; 231 ALR 485 at [34].
5. I would have awarded Mr Best the sum of $40,000 under this head of damages.

SUMMARY & ORDERS

1. The defendant has established its time bar defence, which means that the plaintiff's claim fails.
2. Had I found that the limitations defence was not made out, I would have awarded the plaintiff damages in the total sum of $181,248.35, comprising the following amounts: Past out of pocket expenses $1,248.35 Future out of pocket expenses $5,000 General damages [5] $60,000 Loss of earning capacity (past and future) $75,000 Aggravated damages $40,000
3. I make the following orders: 1. Verdict and judgment for the Defendant. 2. The Plaintiff is to pay the Defendant's costs. 3. Liberty to apply on 7 days' notice should there be any application to vary the costs order. Such liberty is to be exercisable by the applicant sending to my Associate a short outline of written submissions (not exceeding 3 pages, attaching any relevant documentation; with the respondent to such application having the opportunity to respond (in the same fashion) within a further 3 days. Such application will thereafter be determined on the papers.

Endnotes

1. Wardley v Western Australia (1992) 175 CLR 514 at 533.
2. Counsel for both parties agreed that 'recklessness' was a sufficient mental state to establish the tort.
3. The focus would no doubt have been compensation from the effects of an eye injury. It would also be relevant to a claim for compensation, for at least general damages, that on Mr Best's version, it was relevant also that had been here then assaulted in a way which had injured other parts of his body.
4. see also Fabre v Arenales (1992) 27 NSWLR 437 at 449-50
5. This component does not include any interest on general damages, which, because of the ultimate outcome, need not be calculated here.

Amendments 24 July 2019 - Catchwords - addition of word 'time' in 'whether the plaintiff is time barred by limitation period' 24 July 2019 - Removal of typing error in paragraph 13 quotations. 25 July 2019 - Paragraph 37 - addition of words "might delay bringing a claim." DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 July 2019