Carlos Sawa v Fairfield City Council

NATURE OF PLAINTIFF CASE

1. The plaintiff claims personal injury damages. The plaintiff was assaulted by a third party on 14 December 2016, during his attendance at Fairfield Leisure Centre (the Centre), being a swim Centre operated by the defendant. He suffered facial swelling extending down to the neck on the left side, loss of teeth, disruption of his mandible causing difficulty and discomfort when opening and closing his mouth and a fractured left thumb caused by its impact with the ground when he fell during the assault. The plaintiff claims also for aggravation of his pre-existing mental health ailments which include depression and anxiety.
2. The plaintiff frames his case on occupiers liability for negligence, breach of contract, conduct that was misleading and deceptive in breach of sections 18, 33 and 34 of Schedule 2 of the Competition and Consumer Act 2010 (Cth) (ACL), failure to provide the services of the Centre with due care and skill in breach of section 60 ACL, and failure to provide safe swimming pool premises fit for the purpose in breach of section 61 ACL. Except during opening and closing, little was said concerning the actions pursuant to the provisions of the ACL. Principally the case was run in negligence.
3. The defendant complained that the plaintiff case opened, was not pleaded. The plaintiff had opened on accepting his burden to prove a special relationship in order for there to be a duty of care owed by the defendant. By consent, the plaintiff supplemented its pleading by adding particulars of his claim of special relationship, in the three-page handwritten document identified as Addendum 2 to the Statement of Claim.
4. The plaintiff adopted the Chronology exhibit H, as accurate. The plaintiff court bundle also included: exhibit E containing medicolegal reports of the plaintiff's treating psychiatrist Dr Benjamin dated 8 August 2018, oral maxillofacial surgeon Dr Bowler dated 2 August 2018 and a medicolegal report of orthopaedist Dr Giblin dated 8 October 2018; exhibit F containing post-event clinical notes; and exhibit G which contained documents of the defendants protocols and policies and police documents relevant to the incident. Defendant Exhibit 1 was voluminous and included mainly medical clinical notes commencing 2006. Exhibit 1 also contained the medicolegal reports of orthopaedist Dr F J Harvey, dated 13 March 2019 and of Psychiatrist Dr Leonard Lee, dated 18 April 2019.
5. Only the specific parts of the exhibits contained within the plaintiff court bundle and defendant Exhibit 1 to which the court's attention was directed were admitted into evidence. These reasons do not address other parts of that literature.

INCIDENT

1. At a time of day which the plaintiff does not precisely recall (T p 25 line 20) he attended the Fairfield Leisure Centre ("Centre"). Police records in exhibit G include the COPS event record which times the event at 12:30 PM on 14 December 2016. It is common evidence that the plaintiff spoke to the police.
2. Because the plaintiff relies on the defendant protocols which refer to availability of security services after 1pm, it is of limited significance that the evidence does not support finding that the assault occurred after 1 pm. Those services were not available.
3. The plaintiff travelled to the Centre by motor vehicle with his friend Mr Eddie Giorgis (for efficiency and without meaning any discourtesy to Mr Giorgis, I will refer to him by his first name "Eddie"). It was a hot day. They arrived in the car park to the Centre and walked to the turnstiles where they paid the entry fee. The plaintiff was provided with a blue card on payment (exhibit A). He was also given an entry ticket. On entry they were asked to provide personal identification and the plaintiff's photograph was taken. From the entry counter the plaintiff and Eddie walked through gates, past the indoor pool to the outdoor pool area. Exhibits B and C are aerial photographs of the Centre. Plainly there was a partially sun-shade covered, large grassed area beside the outdoor pool and more grassed area at the back of the pool, the opposite end from the building complex. External to the building complex and at a different angle there was a children's play pool area. The evidence described a gymnasium also being within the building complex. The plaintiff had previously visited the Centre on a few occasions.
4. After entering the outside pool area the plaintiff and Eddie initially sat at the place marked X on exhibit B. The plaintiff described that place as "a grassy hill": T p 27 line 20. After about 5 to 10 minutes the plaintiff decided to enter the outside pool for a swim. He did so by using the stairs at the location O marked on exhibit B [Note: In fact the plaintiff mistakenly wrote X on Exhibit B. The stairs are also identified at C on Exhibit C]. When he was about 5 metres away from the stairs he observed a group of about 8-10 young men who were doing bombs and putting each other on shoulders and doing back flips into the pool. The plaintiff estimated there would have been "well over 150 people" in the pool (T p 27 line 49) and that the Centre was "packed" with people including families, children and there was a school carnival in operation: T p 28 line 01 to line 19.

SPECIAL RELATIONSHIP

1. During opening counsel for the plaintiff referred the court to paragraphs [112], [117] and [118] of the decision of Hayne J in Modbury Triangle v Anzil (2000) 205 CLR 254; [2000] HCA 61 and conceded that the plaintiff must prove a special relationship in order to establish that the defendant, as occupier of the Centre, owed the plaintiff a duty of care: T p 4 line 30 to line 42. The plaintiff case was put on the basis that "the defendant is in control of the circumstances, in control of the situation where the assault occurred, and further where the occupier has failed to control the continued presence [of the assailant] on the premises": T p 10 line 45 to p 11 line 4. At [111] Hayne J said in Modbury: "The occupier of land has power to control who enters and remains on the land and has power to control the state or condition of the land. It is these powers of control which establish the relationship between occupier and entrant 'which of itself suffices to give rise to a duty ... to take reasonable care to avoid a foreseeable risk of injury' (authority cited) to the entrant. It is the existence of these powers which lies behind both the particular conclusion in (authority cited) that occupiers of land owe a duty to take reasonable care in respect of fire or other hazards originating on the land and general statements, of the kind made by Lord Nicholls of Birkenhead in his dissenting speech in (authority cited), that '[t]he right to occupy can reasonably be regarded as carrying obligations as well as rights'."
2. In Modbury, the High Court held that the duty of care of the shopping centre land owner, as occupier, did not extend to preventing physical injury to the shop worker resulting from the criminal behaviour of third parties in the car park in the circumstances of the lighting having been turned off at night. At [112], Hayne J applied his above statement of principle to the facts of that case, finding: "[the shopping centre owner] did not control what happened to[the shop worker]. It is not enough to say that the[shopping centre owner] had power to act in a way that may have made the occurrence less likely (by leaving the lights on). That is doing no more than restating, in other words, a conclusion about foresight or, perhaps, causation. The conduct which caused the [shop worker's] injuries was deliberate criminal wrongdoing. By its very nature that conduct is unpredictable and irrational. It occurs despite society devoting its resources to deterring and preventing it through the work of police forces and the punishment of those offenders who are caught. That is, such conduct occurs despite the efforts of society as a whole to prevent it. Yet [the shopworker's] contention is that a particular member of that society should be held liable for not preventing it."

EXHIBIT G: DEFENDANT PROTOCOLS AND PROCEDURES - CONTROL

1. The plaintiff did not rely on alternative operational procedures to those of the defendant or submit that the defendant protocols and procedures were defective. The plaintiff relied on the defendant's documented protocols and procedures relating to operation of the Centre in order to establish the existence of a duty of care, the scope of any duty of care owed and breach of duty of care pursuant to the provisions of section 5B Civil Liability Act 2002 (NSW). Management of patrons by lifeguards and utilisation of police services was not a matter of common sense and had the plaintiff submitted alternative protocols; then the plaintiff would have required evidence supporting the point: Vozza v Tooth & Co Ltd (1964) 112 CLR 316; [1964] HCA 29 per Windeyer J at 321-322; Neill v NSW Fresh Food and Ice Pty Ltd (1963) 108 CLR 362; [1963] HCA 4 at 369-370; Swain v Waverley Municipal Council (2004) 220 CLR 517; [2005] HCA 4 at [14]-[17] per Chief Justice and at [40] per McHugh J.
2. The plaintiff's argument was that the documents proved foreseeability of the risk of criminal assault, the power to control the risk of that behaviour and the reasonable response to the risk of harm.
3. The plaintiff took the court to the following documentary evidence within exhibit G which limited entries, according to my ruling for admission of evidence, compose that evidence:

Risk Assessment/ Process Task Analysis (last reviewed 16 March 2016)

• At page 44 passages relating to "Dealing with a difficult aggressive customer" and "Calling Security or Senior staff": It is to be noted that on the facts of this case none of the hazards for which responses are there identified, were proved. There is no evidence that the lifeguard was aware of threats to any person, or physical violence to any person prior to the assault; as would be required on the plaintiff case, at or before the time when the plaintiff and Eddie reached the point marked E on exhibit C and were informed by the lifeguard that police had been called. On the facts of this case, none of the triggers identified in this document for the lifeguard to have requested the group of young men or any of them to leave occurred. The evidence does not prove that the lifeguard ought have been aware that any of the group of young men had become uncontrollable. The document makes plain that the lifeguard was "never to touch" an offending customer.

Notice of Terms and Conditions of Entry

• At page 45 the Notice of Terms and Conditions of Entry included agreement of the defendant's right to refuse entry to any person and to remove any person who engaged in "disruptive or disorderly conduct including, but not limited to: any conduct which adversely impacts on the other Patrons or damages property; verbally or physically threatening staff or other person; swearing aloud; and gaining or attempting to gain unauthorised and/or wrongful access". As will be seen, the defendant's protocols and procedures provided for "minor breaches" into which the offending behaviour of the group of young men, which was observed by the lifeguard, fell. Taking the protocol and procedure documentation as a whole, the conduct of jumping into the pool, tumbling and bombing did not warrant the lifeguard to contemplate eviction from the Centre unless it continued after the final warning given as the end of a "three strikes you're out" practice. There was no evidence that it did. Even then the lifeguard was to exercise his judgment as to what action to take: see below, the protocol was to consider advising of the possibility of eviction for repeated disobedience of "minor breach" warnings.

Quality Management - Pool Surveillance and Lifeguarding

• At pages 46-48 and 54-55, this document provided that the lifeguards were required to hold qualifications in pool safety and first-aid and their primary function was identified as accident prevention. Their primary concern was identified as, supervision, safety and well-being of patrons in, and around the vicinity of the water. Lifeguards were required to not stand in any one place for too long; but rather to keep moving around to ensure full coverage of the pool water, especially in peak times. During periods of high patronage, such as in this case, a minimum of two lifeguards were to be on duty. There is no evidence that less than two lifeguards were on duty at the Centre. The plaintiff did not submit inadequate provision of lifeguards.
• At page 58, the defendant's pool admission policy included payment of an entry fee and provision of photo identification for patrons of 13 years and older, and the creation of a customer file with photo attached on the issue of a pool patron card. It will be recalled that the plaintiff was issued a small blue card, exhibit A.
• At pages 60-65 entitled "Dealing with Difficult Customers" the procedure for dealing with aggressive or angry patrons or where violence seemed to be imminent, required lifeguards to trust their instincts and exercise their individual judgement and never to put themselves at risk when speaking to the troublesome patron. The lifeguard was never to touch that patron. Specifically, in circumstances of a patron behaving aggressively the lifeguard was to stay in public view and call management or police if necessary except where violence seemed to be imminent or offered, in which case the lifesaver was to call police or security guards. In all of those circumstances the terms and conditions of entry permitted expulsion of the troublesome patron. The lifeguard observed only bombing, jumping and tumbling into the pool. The page 62 "minor breaches" procedure was applicable. The lifeguard was required to inform the group of young men that they could remain but if they failed to curb the behaviour they would face the possibility of expulsion. The policy and procedure adopted a "Three strikes and you're out" approach. It will be recalled that the lifesaver gave the group of young men a warning on account of their jumping, tumbling, and bombing into the pool. On the evidence the group of young men had not re-entered the pool or continued that conduct. They had not failed to comply with the pool behaviour warning. Page 62 then sets out the eviction procedure. In the event that the behaviour of the young men had satisfied a trigger for eviction (there is no evidence of the lifeguard having observed such behaviour preceding the assault). In such event, the lifeguard was to obtain video footage for identification of the troublesome patrons for staff and for police and to complete an Incident Report. In the event of the patron refusing to leave following the lifeguards eviction direction (at page 63) the lifeguard was to advise the patron that further action may be taken including calling the police.

Other Internal Defendant Documents

• Pages 66-68, 70-75 and 79 contain various internal documents of the defendant. On 31 August 2010 it was recorded that at leisure centres "We currently have a large element of patrons who are disruptive, aggressive and threatening to staff and other customers, they also cause vandalism in change rooms, car parks and other areas, attempt to enter the premises illegally (i.e. over the fence)". These documents show that a policy was adopted by the defendant in response to those risks commencing six years prior to the subject incident. The purpose of creation of Incident Reports was described as for liaison between staff and police in circumstances where the incident required action above the giving of a warning. The expressed endeavour was to work within the resources of the defendant and the police so as to best identify "Hot spots" (T p 71) to assist in the most efficient direction of resources. Again, the job prescription of lifeguard was predominantly supervision of pool safety and first responder services for the provision of medical aid, albeit monitoring security of Centres was included. The lifeguard's key responsibilities, listed at page 73, all described pool and aquatics safety.

Leisure Centres Standard Operating Procedure dated 29 October 2018

1. Pages 76-85: Obviously this document postdates the subject incident by approximately two years. Page 79 of the document identifies the normal start time for security guards as 1 PM.

CONSIDERATION - LIABILITY

1. By Statement of Claim filed 28 May 2018 the plaintiff sues the defendant as occupier with "responsibility for the care, control and management" of the Centre: [2]. At [8] to [12] the plaintiff identified the relevant risk of harm as him being assaulted, battered and trespassed upon by one or more perpetrators, being a risk of harm which the defendant knew or ought to have known, which risk of harm was not insignificant for the purposes of s 5B CLA. In addition, the plaintiff pleads that his presence at the Centre was pursuant to a contract between him and the defendant, for reward pursuant to which the defendant would provide swimming pool services with due care and skill and provide a safe and secure environment so as to avoid foreseeable risk of injury which was not insignificant including the protection of the plaintiff from harm perpetrated by other patrons of the pool; which contract the defendant is said to have breached by the same acts and omissions described in the particulars of negligence.
2. The plaintiff alleges breach of representations implied by law, pursuant to the provisions of ss 18,33, and 34 ACL and breach of ss 60 and 61 ACL for failure to provide goods and services with due care and skill and fit for purpose. Putting aside the typographical error of reference to particulars of breach of contract pleaded in paragraph 18 of the Statement of Claim, which particulars are in fact pleaded in paragraph 21; each of those breaches of representation and failure to provide goods and services are identified with the particulars of negligence pleaded in paragraph 17 and indeed the case was run in the style of a suit in negligence.
3. The single omission which the plaintiff, in closing the case, submitted to be the breach basing all causes of action pleaded, was that the lifeguard did not instruct the group of young men to leave the Centre at the point when the plaintiff and Eddie were at position E on Exhibit C. To establish a standard of care, the plaintiff relied on the defendant's documents in exhibit G, the essential submission was that those documents established that the defendant since at least 2010 had foreseen the risk of exactly what happened to the plaintiff and proved that the defendant had the requisite control of a special relationship, extending the occupier duty of care to include protection of the plaintiff from that risk of harm.

CONTROL

1. To this point, I have endeavoured in these reasons to decide the question of duty of care on the bases the parties contested. The plaintiff's assertion that the defendant was responsible for control of criminal conduct by patrons at the Centre deserves further comment.
2. As these reasons already observe, the defendant Council was not under obligation of statutory duties associated with minimisation of harm in the operation of a nightclub such as were examined on the question of liability in the Adeels Palace Case supra. Here, the defendant Council, it is to be reasonably assumed, was the occupier of a variety of recreational lands and premises. Amongst them would have been parks for which no admission was charged and this Centre, entry to which required payment of a fee, and which Centre provided a variety of recreational precincts including the outside swimming pool.
3. As the matter commenced, the plaintiff Statement of Claim pleaded a cause of action purely in occupiers liability for condition of the premises. Paragraph 2 provided: "The Defendant is a Local Government Authority pursuant to the Local Government Act 1993 (NSW) and is the occupier of and responsible for the care, control and management of the Fairfield City Leisure Centre, including the swimming pool and surroundings."
4. In consequence of the defendant during oral opening submissions identifying that the plaintiff case as pleaded did not describe the special relationship which as recognised in the Modbury Case was required for there to be found a duty of care to protect against the criminal conduct of a third party, the plaintiff amended the Statement of Claim by addition of the Addendum said to provide particulars to paragraphs [4]-[6], which paragraphs pleaded that the plaintiff was assaulted by a patron at the Centre. The case thereafter proceeded on the plaintiff's acknowledgment that he had to establish the special relationship. The plaintiff acknowledged, by reference to the Modbury Case paragraphs earlier set out in these reasons, that control is an essential element to be proved in order to establish a special relationship upon which the defendant Council might owe a duty of care to protect patrons against criminal actions by other patrons, in this case, assault and battery of the plaintiff.
5. Proprietors of Strata Plan 17226 v Drakulic [2002] NSWCA 381 considered the special relationship and particularly the element of control in circumstances of a claim brought purely upon the basis of occupiers liability of the body corporate for the criminal attack by a third party upon a resident in the foyer of the building in circumstances of the occupier having for an extended period not rectified a defective lock to the door. The allegation in that case was that but for negligent failure to maintain a lockable door, the intruder would not have been in the foyer and this would have avoided attack of the resident. The Court of Appeal decided that the body corporate did not owe that duty of care and that the failure to rectify the lock could not be said to have caused the attack.

BREACH - NEGLIGENCE AND CONTRACT

1. I have found that the defendant did not owe a common law duty of care to protect the plaintiff from the criminal conduct of the assailant. My reasons to this point recognise that the terms and conditions of entry, upon which the plaintiff relies for his claim in contract, did not prescribe a different standard of care. The particulars of breach of contract and of the pleaded provisions of the CLA are identical to those of negligence.
2. Applying the principles of s 5B(1) CLA: 1. It was not contested that the unpredictable risk of criminal behaviour between patrons including violent assault by one patron upon another which in this case involved the plaintiff, was foreseeable; 2. The risk of harm from violent assault was plainly not insignificant; and 3. Whether or not, in the circumstances, a reasonable defendant in the position of the defendant through its lifeguard failed to take precautions is the contested issue.
3. Firstly, my reasons to this point find that a reasonable defendant "in the position" of the defendant Council was not required to take the precaution of directing the group of young men to leave. That is a full defence to the allegation of breach: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7.
4. Before proceeding to determination of whether or not the precaution of directing the group of young men to leave, which is proposed by the plaintiff, was reasonable pursuant to s 5B(2) CLA; the starting point is to remember that the plaintiff case was not based upon an allegation or evidence that the defendant's terms and conditions of entry or its protocols and procedures were inadequate.
5. Rather, the plaintiff case was that the failure of the lifeguard to instruct the group of young men to leave the Centre at the time the lifeguard standing at position A spoke to Eddie and the plaintiff who were at position E on Exhibit C, was not reasonable in the circumstances. Employing s 5B(2), I have found that the evidence only proves on the balance of probabilities that the lifeguard witnessed the group of young men at the time they were jumping, bombing and tumbling in the pool and that none of that behaviour gave cause to reasonably expect that violence of any character occurring was a significant possibility. I have found that the lifeguard did not observe any act of violence against the plaintiff or Eddie prior to them reaching position E on Exhibit C. The evidence of that behaviour seen by the lifeguard did not include anything suggestive of violence to follow. Accordingly, at the time the lifeguard spoke to the plaintiff and Eddie at position E, the probability that the harm would occur was minimal, the seriousness of harm by violent assault was not likely. His was a response in full compliance with the protocols and procedures appropriately to be applied in that scenario. For those reasons, on the evidence as I find it, the defendant did not breach its duty of care. It was not negligent.

CAUSATION

1. Applying the provisions of s 5D(1) CLA, and assuming that a reasonable response required the lifeguard to tell the group of young men to leave, as is the allegation of breach made by the plaintiff; then, in my opinion, that omission was not a necessary condition of the criminal assault which followed, nor was it appropriate for the scope of the defendant's liability to extend to that harm. This is because the confrontation was diffused and the assault followed approximately ten minutes later. Indeed, on the plaintiff's evidence the assault appears to have been a spontaneous action. I say this because the plaintiff described the assailant's walk toward him as not instilling in the plaintiff any concern and the initial approach was enquiry not challenge.
2. For the plaintiff to succeed on the question of causation, it is not enough to say that if the lifeguard had directed the group of young men to leave, that it may have made the criminal assault less likely: Modbury Case supra, per Hayne J at [112].
3. That interruption of time of approximately ten minutes and distance of approximately 50 metres means that an omission of the lifeguard to have directed the group of young men to leave cannot be said to be part of a set of conditions or events leading to the assault. In my view, the chain of causation had been broken.
4. The chain is not completed by the proposition that had the young men been evicted from the premises, the assailant would not have been present to assault the plaintiff. That proposition is entirely speculative and in my opinion no more likely than had the lifeguard voiced a direction of eviction, the young men might have assaulted him or the plaintiff and Eddie then before exiting over the back fence of the Centre. The lifeguard was not yet accompanied by a police officer. He could not, alone, have done anything to prevent the assault.
5. Further, that interruption of time and distance and the apparent spontaneity of the action of assault mean that it is not appropriate in this case for the scope of the defendant's liability to extend to the harm: See also s 5D(4) CLA.

ACL Causes of Action

1. It follows from the above reasons that I find the defendant did not engage in conduct that was misleading and deceptive in breach of ss 18,33 and 34 ACL. The representation as pleaded at Statement of Claim [26] that the Centre would be "safe and free of risk of injury" is in the circumstances of it being a Centre open to the public, a representation which it would be implausible to find. Amongst the members of the public there is always a unpredictable risk of criminal conduct. Even the physical premises could not be entirely safe and free of risk of injury. That the breach in [27] is not better particularised than that the swimming pool premises "were not safe, nor were they risk free" likewise does not plead a relevant breach of representation. In response to Statement of Claim [28] I have found against the proposition that the swimming pool premises were not provided with due care and therefore, a representation to that effect, not otherwise explained in the running of the case, was not breached. For the reasons I have given, the defendant did not fail to provide services of the Centre with due skill and care and therefore did not breach s 60 ACL nor did it breach the warranty under s 61 ACL that it provide "safe swimming pool premises for the purpose for which they were provided" as pleaded in Statement of Claim [32].
2. I repeat that in each of those allegations for breach of contract and of provisions of the ACL, the particulars of breach are identical to the particulars of negligence.

CONCLUSION ON LIABILITY

1. I conclude that the defendant did not owe the duty of care alleged and was not negligent, did not breach the terms and conditions of contract and that the plaintiff has failed in its causes of action under various provisions of the ACL. There will be judgment on liability for the defendant.

DAMAGES

1. I now move to consideration of damages which I would have awarded had the plaintiff succeeded on liability.

Oral Evidence

1. The plaintiff's case for damages is principally based upon the fracture to his thumb suffered when he fell to the ground during the assault and upon exacerbation of his significant preinjury mental health condition. The plaintiff was not working before the incident and had not worked for 11 years, consequent of his mental illness suffered following the stabbing in February 2006.
2. The plaintiff was born on 6 September 1982 and migrated from Iraq to Australia as a refugee with his family at age 7, in April 1990. His education commenced with primary school in Iraq and concluded in 1999 at the end of year 10 at Fairfield High School. The plaintiff achieved his Year 10 Certificate.
3. The plaintiff worked in manual jobs after leaving school.
4. He receives the Disability Support Pension because of his chronic mental illness.
5. According to his chronology, as early as 12 June 2003, when he would have been 20 years of age, he attended Dr Kandhar at Fairfield Chase Medical and Dental Centre on referral from Professor O'Sullivan regarding his THC (Cannabis) dependency. On 19 December 2005 the plaintiff attended Dr Knapik, Fairfield Station Medical Centre where he obtained a referral to the Drug and Alcohol Clinic in Liverpool Hospital because of his THC dependency.
6. The plaintiff suffered a life changing assault on 25 February 2006. He was stabbed in the lower abdomen and received injury to his kidney. His injuries required his admission to Liverpool Hospital for 12 days (25 February 2006 to 9 March 2006). He said that afterward he healed physically but not mentally. He has received mental health focused medical treatment from 5 December 2006 for diagnosed Post Traumatic Stress Disorder, Depressive Disorder and anxiety.
7. Commencing 16 October 2007 he came under the care of Dr Benjamin, psychiatrist and he has remained under Dr Benjamin's care.
8. I interpose, that the clinical notes of Dr Benjamin's consultation with the plaintiff on 14 April 2008 record "… was shot in [right] leg". There is no further or other entry of that event or its sequelae. Neither the event nor that clinical note entry was put to the plaintiff during his oral evidence. Dr Benjamin was not called. Dr Benjamin made no reference to it in either of his medicolegal reports, upon which the plaintiff relies. Dr Leonard Lee, psychiatrist, retained by the defendant for these proceedings, included in his report dated 18 April 2019 under the heading in which he discussed the nature and extent of the plaintiff's pre-existing or unrelated psychiatric problems, "I understand that he was previously diagnosed with Posttraumatic Stress Disorder and Major Depressive disorder and has not worked since 2006, that he was apparently shot in the leg in 2008, and is said to have been a heavy cannabis user …". That treating medical practitioners do not create clinical notes with a mind to providing an accurate chronology for the purposes of court proceedings such as these, is an observation well reported: see Elayoubi v Zipser [2008] NSWCA 335 at [86]; Mason v Demasi [2009] NSWCA 227 at [2]; The Nominal Defendant v Cordin [2017] NSWCA 6; and Simoes v Kel Campbell Pty Limited [2018] NSWCA 284 at [15]. Particularly because the plaintiff did not have the opportunity of confirming or rejecting the event of being shot but also because the entry is anomalous to the consistent history concerning the 2006 stabbing event; it is not fair or reasonable, in my opinion, to accept as a fact that the plaintiff was shot in 2008. The report of Dr Lee is to be considered accordingly.

Pre-Existing Situation - Clinical Notes

1. Since commencing treatment with Dr Benjamin in late 2007 the plaintiff has continued on medications including, from time to time, Efexor, Seroquel, Valium, Minipress and others. Each counsel submitted that I should draw conclusions as to whether or not the plaintiff's pre-incident and post-incident condition worsened on the basis of consideration of adjustment of medication and of dosage of medications. In the absence of expert opinion evidence and particularly in the circumstances of Dr Benjamin having not been called for oral evidence; I declined to make that determination. In my opinion it is a matter quintessentially limited to expert medical evidence, most suitably in the specialist fields of pharmacology and psychiatry.
2. The plaintiff gave his evidence in a generally honest way and I accept him as generally a witness of truth. My overall impression was that there was little real substance of inconsistency between the plaintiffs generalised description of his medical history and the more precise historical record contained in the clinical notes. Mindful of the considerations listed in Mason v Demasi [2009] NSWCA 227 at [2] by Basten JA, where his oral evidence of the course of his treatment and of his condition differed from that contained in the clinical notes, I prefer the accuracy of clinical notes. In particular, I am mindful of the plaintiff's lack of fluency in English. On the other hand, Dr Benjamin's clinical notes provide a written record spanning approximately 12 years of regular treatment. Over that period of time, it is reasonable to assume that Dr Benjamin struck a rapport and adequate communication with the plaintiff.
3. On referral to Dr Benjamin, by letter dated 16 October 2007, Mr Marando, psychologist, reported that he had been seeing the plaintiff since December 2006 and "Throughout this time I continued to see [the plaintiff] even though his mood failed to improve." Since the stabbing the plaintiff had received psychiatric treatment on a six weekly basis from a psychiatrist with the Liverpool Mental Health Team, been prescribed numerous antidepressant medications, at one point experienced suicidal ideation, and felt that the treatment he was receiving was not assisting in his management of his depression. The plaintiff reported worsened symptoms of depression including suicidal ideation on a regular basis by October 2007. He had no plan or intent of suicide. He reported that he had nothing to look forward to and that he was constantly ruminating about his then current situation and losses. He suffered extremely poor motivation and poor sleep and appetite. (Exhibit 1, page 129).

After the Incident

1. After the assault and speaking to Centre staff and the police, the plaintiff went home. After a couple of days, hand pain caused him to attend a doctor. An X-ray revealed the fracture. He suffered cuts to the inside of his lip. He went to the dentist and loose teeth were pulled from his mouth. He attended physiotherapy at Fairfield Hospital for his thumb. His thumb/hand cast was removed after about six weeks. He said that he could not drive for the six weeks. After his thumb was out of the cast he was in a lot of pain when he attended the physiotherapist. He underwent one injection of steroids and after a few weeks a second injection from which he received no pain relief.
2. He described his grip, presently, as "okay". His thumb still hurts sometimes
3. He still suffers some clicking of his jaw and pain when chewing. He claimed that after the injury his anxiety is worse and that he thinks a lot about everything and even the smallest things drive him crazy. He complained that his sleeping is not good in that he suffers a lot of nightmares. He feels vulnerable all the time.
4. He at first described in general terms, his inability to clean his two bedroom apartment for the first few months after his injury and that this was performed by his sister. He said that he could not shop and he also received the assistance of his sister in this regard. He said that he could not maintain his small lawn because he could not operate his whippersnipper due to the stiffness and pain in his thumb. He said that his brother and sister helped him with maintaining his small area of grass. He said that his sister provided food. He estimated that his brother and sister, taking turns, attended about twice weekly whilst his thumb was in a cast. He timed the ceasing of this assistance received from his brother and sister with when he had his teeth removed. He estimated that his sister and brother provided 7 to 8 hours assistance per week until then. He said that he is still missing four teeth on the left side and that he has not received any crowns or prostheses. He attends his GP when needed and psychiatric treatment continues.
5. With his typical frankness, in cross examination; the plaintiff agreed that he could drive from removal of the cast at six weeks post-incident and was able to shop for himself from that point. The plaintiff did not say that at any point he was unable to basically care for himself. He conceded that he was able to change his sheets weekly and to wash clothes daily. He did not leave everything to his sister and brother. From the time of removal of his cast he did all his own washing and cooking. He agreed that he was able to take care of his lawn once the cast was off.

Assessment - Pre and Post Incident

1. During evidence in chief, the plaintiff gave the following frank description of his pre-incident mental health being up and down: "Q. Explain to his Honour how your mental health had progressed from 2006 to 2016? A. It's never progressed in one line straight, it's always been up and down. I mean, the smallest thing bothers me and affects me. I don't know how to, I mean, explain to you. It just, I don't know, made it worse for me, it just did. Q. Let me ask you this question then. Before this incident that happened at Fairfield, compared to how you were emotionally after the stabbing, were you in a better state mentally? A. Before the stabbing? Q. After the stabbing and before this incident, were you mentally in a better state? A. I would have been, yeah, cause I mean, two years ago I tried to get my truck licence, and I was thinking of getting a job, and yeah."
2. The plaintiff did get his truck licence but the work which a friend had indicated might be available, did not eventuate. He also looked into driving concrete trucks but that avenue was not available to him because he lacked experience.
3. The plaintiff frankly stated during his evidence in chief that before the incident, as part of the ongoing effect of the 2006 stabbing, he could "barely sleep" and "barely eat": T p 25 line 01 to line 10. He disagreed that before the incident he was unmotivated. He did agree that before the incident he felt that life was hopeless.
4. Dr Benjamin's first clinical note recording the subject incident of assault, is dated 2 February 2017, seven weeks post-incident. Dr Benjamin recorded "recurring nightmares since assault at the pool on 14/12/16": Exhibit 1, page 195. On 27 April 2017, Dr Benjamin recorded a reduction in nightmares and on 8 August 2017 that the plaintiff had "been better". The plaintiff continued to grind his teeth. The plaintiff had visited his uncle in Melbourne which he found enjoyable and wanted to do again: Exhibit 1, page 196. On 8 November 2017, approximately one year post-incident, Dr Benjamin reported that the plaintiff had again travelled to Melbourne to visit his family. Dr Benjamin recorded that the plaintiff's mood swings persisted, that he experienced paranoid thoughts and irritability, which conditions, according to his clinical note of 14 March 2018, were reduced: Exhibit 1 page 197

CALCULATION OF DAMAGES

1. Non Economic Loss: The plaintiff and defendant Schedules of Damages identically submit 27% of a most extreme case. I would award that assessment on the evidence. Both parties misstated the sum at $54,500.00. I would allow the sum as adjusted from 1 October 2019 in the amount of $66,000.00.
2. Past Out of Pocket Expenses: These are agreed in the sum of the Medicare payback. I would allow the agreed figure of $1,373.60.
3. Future Out of Pocket Expenses: The plaintiff's ongoing mental health would have required him to seek specialist assistance up to a frequency of bi-monthly in any event, as well as consultations with his General Practitioner. It is not possible to precisely quantify the extra medication which exacerbation of his mental health, caused by the incident, has resulted in; however, it is reasonable to allow compensation for increased medication, at least for a period of two years as opined by Dr Benjamin. After that period, his mental illness will have plateaued at an exacerbated level. The plaintiff's un-united fracture of his left thumb is agreed by Doctors Giblin and Harvey to continue to give him problems gripping a broom or a mop and causing pain when it is bumped. I accept Dr Giblin's opinion of a 5% risk of arthritis developing in the thumb joint and that there is some prospect of him succumbing to MCPJ arthrodesis. In the past, the plaintiff travelled to Iraq in order to achieve tooth implants. Even though he is not a candidate for that treatment in Australia because of his smoking, he has not taken the interim step of acquiring lower partial dentures. Dr Bowler estimated the implant procedure would cost $21,200.00 and the denture would cost between $1,200.00 and $1,500.00. The plaintiff suffers compromised chewing and discomfort with his chewing. It is reasonable to allow for future treatment in order to remediate his difficulties suffered because of the loss of four teeth. There is nothing in the evidence which permits me to estimate when the plaintiff might require surgery on his thumb or require treatment for his missing teeth.
4. In their respective Schedules of Damages, the parties joined in seeking compensation by way of buffer. The plaintiff proposed $30,000.00 and the defendant proposed $15,000.00. In this course each of them adopted the following identical inclusions for future treatment expenses: reviews by General Practitioner; ongoing physiotherapy treatment, particularly during periods of flare-ups (thumb); periodic reviews by specialist orthopaedic surgeon, possibility of surgery to left thumb to unite the fracture site; a 5% chance the plaintiff will develop MCPJ arthritis and require arthrodesis; periodic radiological investigation to assess the state of the plaintiff's (thumb); treatment plan with an oral and maxillofacial surgeon working in conjunction with a specialist; dental implants to replace missing four teeth; prosthodontic reconstruction; pain killing and anti-inflammatory medication; periodic counselling and psychiatric are; anti-depressant medication

ORDERS: 1. Judgment for the defendant against the plaintiff; 2. Plaintiff to pay the defendant's costs; and 3. The exhibits be returned.

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: 17 October 2019