Dickson v Chaffey & Anor

Supreme Court of NSW|2012-10-23|Before: Beech-Jones J

EX TEMPORE Judgment 1On 18 September 2012, I entered judgment for the plaintiff, Mr Steven George Dickson, against the first defendant, Russell Peter Chaffey, for an amount to be assessed (Dickson v Chaffey & Anor (No 3) [2012] NSWSC 1135 (Dickson No 3). This followed a hearing at which Mr Chaffey had chosen not to appear. 2After giving judgment, I made directions for the service of material concerning quantum upon Mr Chaffey, for the notification to him that the matter would be re-listed today and for him to have the opportunity to make submissions. Mr Chaffey was duly served, but has again chosen not to appear. Accordingly, I proceeded to determine quantum in his absence. 3In Dickson No 3 at [18] I found that Mr Chaffey had unlawfully assaulted Mr Dickson on 2 December 2007. At [19], I rejected the existence of any defence under s 52 of the Civil Liability Act 2002 (the "CLA"). 4As a proper characterisation of Mr Chaffey's conduct involved him engaging in an intentional act with the intention to cause injury to Mr Dickson, it follows from s 3B(1)(a) of the CLA that, with the exception of s 15B and ss 18(1)(c), the restrictions on damages found within that legislation have no application to any assessment of Mr Dickson's loss. Sections 15B and ss 18(1)(c) have no relevance to Mr Dickson's case.

Mr Dickson's Medical Condition 5In Dickson No 3 at [16], I stated: "There was also tendered before me a neurological report from a Dr Michael Fearnside dated 13 May 2011, and a report from a clinical psychologist Dr Pauline Langeluddecke dated 6 May 2011. As I am not addressing issues of quantum it is not necessary to describe these reports in much detail. Suffice to state that their reports indicate that the blow to the plaintiff's head and the subsequent fall to the ground inflicted significant injury. He was unconscious for a number of days. He underwent surgery which either included or consisted of a right frontal temporal craniotomy with drainage of a haematoma. He was managed in the intensive care unit with intubation and ventilation. He spent three months in a rehabilitation centre before being discharged home." 6I have now received further material that expands upon that analysis. 7At the time of the assault, Mr Dickson was fifty years of age. He was working as a carpenter and handyman at some residential units in Oxford Street. He had two children from previous relationships and he had grandchildren. He had no particularly adverse health issues. By all accounts, his relations with his family were good. 8Immediately after the assault, he was admitted to hospital. As I have stated, he underwent a craniotomy. He was managed in intensive care, then transferred to the Brain Injury Unit in Ryde on 12 December 2007. He was then transferred to Royal Rehabilitation Hospital Sydney on 19 December 2007. He was discharged on 22 February 2008. He was reported as suffering from post-traumatic amnesia for eleven days. 9At the hearing on quantum, I was provided with a statement from Mr Dickson. Mr Dickson stated that following his discharge, he attempted to live at home but this proved too difficult. Instead, he stayed with his daughter, Carly, for six to eight months. I will return to discuss this later. After living with her, he returned to his rented premises in Darlinghurst. One advantage of this was that it was near St Vincent's Hospital where a number of his treating doctors were located. 10Soon after his release from hospital, Mr Dickson began to suffer seizures. Despite receiving medication, they have continued. 11In July 2008, a neuropsychological assessment was undertaken on Mr Dickson by two neuropsychologists from the Sydney Area Health Service. Their report indicates that the results of their neuropsychological assessment were as follows: "The results indicate that Mr Dickson shows the following difficulties: Speed of information processing is slowed, whereby he may require longer to understand or analyse information; Visuospatial skills are impaired, eg his ability to construct things and analyse visual information. He will likely find it difficult to understand visual information such as maps, routes and diagrams; Memory is reduced for visual information such as pictorial scenes and visual designs; New learning and memory for more complex verbal material such as a word list is slightly reduced with respect to his ability to retain the information over time; Higher level (executive) functioning is impaired, such that he will likely have difficulty generating solutions to problems, working out the steps in a task, have trouble organising his thoughts and planning ahead, and will have problem-solving and self-monitoring difficulties; There are reductions in attention and concentration, possibly in part due to Mr Dickson's reported stress, anxiety and mood related adjustment difficulties given his concerns about the future and his financial situation." 12In March 2010, Mr Dickson was required to undertake further surgery to replace a bone flap that had been removed after the assault. He states that, following the surgery, he began to suffer dizziness, frequent uncontrollable seizures and poor balance. He describes the effect of the seizures as affecting his day to day functioning because he does not know whether he will suffer one at any particular moment. As a result, he is largely confined to his one-room studio apartment. 13He also states that he suffered further injuries in the form of burns to his arms on an occasion when he fell onto a water heater after suffering a seizure. Due to the muscle spasms caused by the seizure he could not let go of the heater. Not surprisingly, he describes this as a very traumatic experience. 14He states that he has experienced somewhere in total between fifteen to twenty seizures since the accident and that they usually come without notice. 15In October 2011, Mr Dickson was assessed by Dr Phillips, a consultant psychiatrist. Dr Phillips identified a number of ongoing physical, psychological and cognitive symptoms suffered by Mr Dickson: "Mr Dickson has failed to make a satisfactory recovery. He remains symptomatic and he cannot work. He identified ongoing physical, psychological and cognitive symptoms. The plaintiff's ongoing physical symptoms include difficulties with balance, poor coordination generally, impaired manual dexterity, severe headache (which will tend to keep him awake at night) and intermittent epilepsy. Mr Dickson's ongoing psychological symptoms include difficulties with sleep (initial insomnia in particular) feelings of depression (with negative ruminations), episodic nihilistic thinking, impaired patience and a tendency to be irritable. [Mr Dickson] also suffers from fatigue which probably reflects a combination of physical and psychological problems. Mr Dickson's ongoing cognitive problems include difficulties with the articulation of words, impaired concentration, impaired memory (particularly short term memory) and difficulties making decisions." 16Dr Phillips also diagnosed Mr Dickson as having an adjustment disorder with mixed anxiety and depressed mood, as well as having an irreversible cognitive disorder. Dr Phillips was fearful he could injure himself as a result of his seizures. Dr Phillips considered it was unlikely that any of Mr Dickson's symptoms would be assisted by psychiatric treatment. Dr Phillips concluded: "Essentially, the incident of 2 December 2007 has been a watershed in Mr Dickson's life. Prior to that time he had coped reasonably well. The situation became completely different after that time. He now has a very high level burden of symptoms. He will not make further recovery." 17Mr Dickson was also assessed by Dr Pauline Langeluddecke, a clinical psychologist. In her report dated 6 May 2011, she diagnosed Mr Dickson as follows: "Diagnosis: Mr Dickson demonstrates significant, wide-ranging cognitive impairment and unfavourable changes in emotional, personality and behavioural functioning in keeping with neurological impairment. These impairments/changes are primarily, if not solely, attributable to the severe traumatic brain injury which he sustained when assaulted on 2 December 2007 and post-traumatic epilepsy. I am unable to totally exclude heavy alcohol use as a possible contributor to some of the cognitive deficits but on available evidence consider it relatively minor. Cognitively, there is a fairly global decline in functioning due to the adverse effects of Mr Dickson's brain injury on his attentional capacity and ability to adequately monitor and control cognitive and behavioural processes. Visuospatial attention, memory, intellectual and executive abilities are significantly more severely affected than verbally-based skills, in keeping with greater involvement of his right cerebral hemisphere. Behaviourally, Mr Dickson demonstrates a significant decline in drive, initiative, and stamina. Social judgment/intuition and self-monitoring/control are also significantly reduced. The changes indicate involvement of frontal brain networks. Mr Dickson's emotional functioning is significantly affected, with heightening of negative affects (e.g. anger, depression, irritability) and impaired monitoring and control. Post-traumatic epilepsy is likely to be a major factor in Mr Dickson's persistent anxiety and depressive symptoms which are slightly more pronounced on present testing than was the case eight months post-brain injury." 18Dr Langeluddecke stated that no treatment was likely to prove effective in ameliorating Mr Dickson's cognitive and behavioural difficulties. 19A report has also been provided from a Dr Davis from the Occupational Health Assessment Centre. It bears the date 3 October 2012. I will return to consider other aspects of the report, but I note the following as the description of Mr Dickson's ongoing difficulties: "Mr Dickson reports poor short term memory and is now very clumsy and tends to knock things over. He also suffers with mood swings, he is very short tempered and easily irritated. His sleep patterns are poor and he reports having no energy and becoming tired throughout the day. He also reports that he develops intermittent shaking in his left hand, and has poor coordination and difficulties with balance. He is unable to drive a motor vehicle on medical advice. Frontal headaches are also of continuing concern." 20As I have stated, a statement from Mr Dickson has been tendered before me on the hearing as to quantum. In that statement, Mr Dickson describes the effect of the injuries on his life. A statement was also provided from his daughter, Carly Dickson, confirming Mr Dickson's statement. 21I have already described Mr Dickson's evidence concerning the seizures he suffered following his release from hospital, and then again after his operation in March 2010. 22In his statement, Mr Dickson describes how, during his rehabilitation, he had to learn again how to walk and talk and control his bodily functions. I interpolate that this was at the age of fifty. He states that his life following the accident was focused solely on his medical treatment and rehabilitation. He says that a further aspect of his stress and anxiety about his seizures was that it has accelerated his social withdrawal. He described himself as having become a social recluse and having lost confidence. He is concerned about the maintenance of personal and family relationships. 23In addition to the seizures, one of the effects of the assault has been a significant emotional impact. He describes himself as now having a short temper and being "generally grumpy", and at other times experiencing tearfulness. This is confirmed by his daughter's statement. He states that he has in difficulty dealing with loud sounds from children. This is having a consequential effect upon his relationships with his grandchildren. 24Consistent with the reports that I have summarised, Mr Dickson describes having difficulty talking and maintaining conversation, as well as reading and writing. 25Mr Dickson also states that he suffers recurrent headaches. He describes a significant issue with memory loss which is affecting a number of aspects of his day to day functioning. It is causing difficulties with cooking, cleaning and personal hygiene. He also states that since the assault, he has been found to be medically unable to manage his own affairs, a circumstance that he finds frustrating. Thus, in addition to all the pain and suffering, one further consequence of the assault is a significant loss of personal sovereignty.

General Damages 26As I stated at the commencement of this judgment, the assessment of Mr Dickson's general damages is not restricted by any of the provisions of the CLA. I have described the medical and lay evidence, which I accept, concerning the terrible consequences for Mr Dickson of Mr Chaffey's assault. He suffered a severe traumatic head injury which required surgery, hospitalisation and rehabilitation. Upon his release, he has suffered reoccurring seizures. His memory, concentration and speed of brain functioning have been and continue to be significantly impaired. He has difficulty in speaking and decision-making and all other aspects of cognitive functioning. His ability to care for himself is significantly affected, ranging from matters affecting his personal hygiene to managing his financial affairs. He is depressed, unhappy and has become socially withdrawn. He is listless, prone to headaches and has difficulty sleeping. 27No doubt all of this has had a significant impact on his relationship with family and friends. Sadly, there is very little prospect of improvement for the balance of his life. 28Prior to the assault, he was a person of reasonably good health. He was aged fifty and could have looked forward to enjoying a significant number of years of an active and healthy life, with satisfying personal and family relationships. The prospects of all of this are now extremely bleak. In my view, a considerable award for general damages is warranted. 29In the submissions provided by the plaintiff which were served on Mr Chaffey, the figure of $496,000 was nominated for general damages. This was calculated by reference to 90% of the most serious case, as described in s 16 of the Civil Liability Act. As I have stated, that provision is not relevant to the assessment that I am in fact undertaking. 30The mere fact that the plaintiff has nominated that figure in the submissions it provided to Mr Chaffey does not restrict the amount that I can grant. Mr Chaffey has been notified of the existence and progress of these proceedings on a number of occasions and on each and every occasion he has chosen not to appear. 31All things considered, I consider that an amount of $500,000 for general damages is justified by reason of the devastating effect of the assault on Mr Dickson's life. 32I will allow an amount of $150,000 for non-economic loss for the past period of almost five years, and a further $350,000 for the future. On my calculations, interest at the rate of 2% which is to be allowed on the figure for past damages totals $14,704.41.

Economic Loss 33I have already stated that, as at the date of the accident, Mr Dickson was working as a carpenter and caretaker at a set of residential apartments in Darlinghurst. He completed secondary education at high school in New Zealand to what is described in that country as "Fourth Form Level", but which is equivalent to Year 10 in New South Wales. Prior to coming to Australia, he worked as a commercial fisherman in New Zealand. He worked in that industry for a period of thirty years. He arrived in Australia in February 2004 and obtained employment as the handyman/carpenter at the residential premises in Darlinghurst. 34He has not been able to return to any form of employment since the time of the assault. I am satisfied that his inability to do so was a result of the injuries he sustained during the assault. 35For the financial year 1 July 2007 to 30 June 2008, his anticipated net earnings, had he not been injured, would have been $59,717.32. His actual earnings, representing his earnings for the period up to the date of the accident, were $25,265, resulting in a loss for that financial year of $34,452.32. As he has not worked since the date of the assault, it follows that for subsequent years he has had no earnings. Mr Roberts SC for Mr Dickson submitted that the application of the CPI index was an appropriate proxy for the likely increase in his wages in the period since the assault. I accept that approach. 36The relevant CPI figures were 4.5% for the financial year 2008/2009, 1.5% for the financial year 2009/2010, 3.1% for 2010/2011, 3.6% for the financial year 2011/2012, and 1.9% for the period from 1 July 2012 to 23 October 2012. Applying these increases to his net rate of pay for the financial year 2007/2008 and then adding the results to the loss calculated for that year, leads to a figure of $314,369.50. I will allow that amount and a further amount of 11% for the loss of superannuation contributions, which totals an additional $34,580.64. 37Accordingly, I allow a total amount for past economic loss of $348,950.14.

Future Economic Loss 38I have already described Mr Dickson's educational and work history. In summary, he has worked in semi-skilled labour. The medical practitioners are uniformly of the view that Mr Dickson will never be able to work again. Dr Phillips stated that Mr Dickson is unemployable and will remain so into the future. Dr Langeluddecke is of the same view. Dr Davis stated that he did not "believe that he will ever return to any form of formalised employment". Professor Fearnside, a neurosurgeon, stated that: "Noting his relatively frequent epileptic seizures, it is unlikely that he will return to any form of employment for which he is reasonably qualified." 39I am satisfied that, absent the assault, Mr Dickson could have continued in his role as a handyman/carpenter or a similar style occupation, earning at approximately the same level until retirement at the age of sixty-seven. He is currently fifty-five. 40I will allow for future economic loss at the postulated rate for his last position until age sixty-seven and apply a discount rate of 3% (see Todorovic v Waller [1981] HCA 72; 150 CLR 402). This results in a figure of $698,540.00. 41I will also allow superannuation in the amount of 14% applied to his net earnings, to account for the increase in employer contributions from 9% to 12%. This yields an additional figure of $97,795. 42Adding those two figures together, and allowing a 15% deduction for vicissitudes, the amount allowed for future economic loss comes to $676,885.00.

Past Out of Pocket Expenses 43I will allow an amount claimed of $1,029.90 for medication expenses for the period 25 July 2008 to 10 October 2012.

Future Out of Pocket Expenses 44As a result of the assault, Mr Dickson seeks amounts for his ongoing treatment and rehabilitation. The amounts sought are as follows. 45First, an amount is sought for the cost of regular attendances upon his general practitioner. The amount sought assumes twenty-four attendances per year at a cost of $65 per consultation. I will allow that amount. It seems to me that, given the complexity of his medical condition, especially his psychological symptoms and his random seizures, that an attendance upon a general practitioner approximately every fortnight is a prudent course. Allowing for a 3% discount rate and a life expectancy of a further 30.5 years, the relevant multiplier is 1038.1. This equates to $31,143.00. I return to the question of vicissitudes below. 46The next claim is for the cost of attending upon a neurologist twenty-four times per year at the cost of $200.00 per consultation. For the same reasons, I consider that that is appropriate. This results in a figure of $94,788.91. 47The next claim is for the cost of ongoing assistance from an occupational therapist twice per month involving three hours per session, with travel. There is no evidence justifying this expense. Given the prognosis as to his likely vocational prospects which are reflected in his claim for future economic loss, I will not allow this claim. 48The next claim is for a home needs assessment in order to assess potential risks of further injury, and any relevant aids required to enable him to conduct his day to day domestic activities. The stated cost of the assessment is $5,000.00. I consider this appropriate in light of the demonstrated medical afflictions, especially the concern about seizures. I will allow that amount. 49There is a further claim for a buffer for the likely aids that would be required to assist him in carrying out his day to day activities. A figure of $30,000.00 has been nominated. There is no particular science associated with that figure and it is very much a speculative claim but nevertheless I will allow $10,000.00 for that item. 50Next is a series of claims for future medication costs. The medications nominated are Accuretic at one per day, Epilim at two tablets per day, Sodium Valproate at three tablets per day, Metohexal at one tablet per day, and Keppra at one per night. These medications are primarily to deal with seizures, but also migraine headaches. Given the potential threat posed to Mr Dickson from his seizures and the fact that none of the doctors has any reason to believe that they will at some point cease, I consider these amounts are appropriate. The total cost of these medications on a weekly basis is $34.41. Using the multiplier of 1038.1 yields a combined figure of $35,721.02. 51The total amount that I have allowed to this point for future out of pocket expenses comes to $176,652.93. Allowing for 15% for vicissitudes yields a rounded figure of $150,155. I will allow that amount.

Past Care 52I have referred to the plaintiff's living arrangements in the period following his release from hospital. In his statement, he describes how his daughter provided him with care and assistance in the period in which he was living with her. He states that she cooked all his meals, washed and cleaned his clothes, performed shopping duties on his behalf and assisted him with remembering medication. He said she drove him to doctors' appointments and he recalls her driving him to hospital on one occasion after he suffered a seizure. 53The claim made in respect of this period, which was for approximately eight months, is for an amount of three hours per day for seven days a week at the rate of $23 per hour. This claim is more than justified by the evidence. I will allow an amount of $15,456 for past care.

Future Care 54It is submitted on behalf of Mr Dickson that as a result of his injuries he will require ongoing domestic and attendant care assistance. He seeks an amount for this on a commercial basis. 55In his report, Dr Davis states as follows: "Whilst Mr Dickson himself reported that he is quite independent in domestic care, it is possible that he under-estimates any such requirement and it would not be inappropriate for him to undergo a formalised Home Needs Assessment by an appropriate qualified occupational therapist. Certainly, anything undertaken at height which requires him to climb ladders would be contra-indicated, such as cleaning gutters or undertaking various general repairs and refurbishments, and I believe, in the absence of a formalised needs assessment, there is a requirement to provide him with at least 2 hours of paid commercial domestic assistance per week for those activities." 56In her report, Dr Langeluddecke recommended the undertaking of a home care needs assessment and further stated that: "I would certainly expect Mr Dickson to have considerable difficulties travelling in areas which are not familiar to him, given the marked difficulties with visuospatial memory and reasoning found on testing." 57Dr Fearnside stated: "He lives in a small unit and seemed to be able to manage his affairs. He would have required domestic assistance for 6-8 months following the assault and subsequent hospital treatment, on balance. At the present time, he seems to be coping. Of some concern is the frequency of his seizures, requiring admission to hospital. However, he does not require regular supervision." 58Mr Dickson's claim for future care is for two hours per week for domestic assistance and two hours per week for assistance in travelling to visit his daughter, at the cost of $35 per hour. Notwithstanding Professor Fearnside's opinion, I consider that this claim is justified. 59Overall, Mr Dickson's difficulties are such that it is very difficult to see him coping without some assistance in organising himself at home, and some assistance in ensuring that he maintains contact with his family. 60I will allow the amount sought for the rest of his life, discounted at 3%. This results in a figure of $145,320.00. However, from this must be deducted an amount of 15% for vicissitudes, yielding a figure of $123,522.00.

Conclusion 61Accordingly, I will award the plaintiff: (1)$500,000.00 for general damages apportioned $150,000 for the past and $350,000 for the future; (2)interest on past general damages in the amount of $14,704.41; (3)past economic loss of $348,950.14; (4)future economic loss of $676,885; (5)past out of pocket expenses of $1,029.20; (6)future out of pocket expenses of $150,155.00; (7)past care costs of $15,456.00; and (8)future care costs of $123,522.00. 62I will shortly make orders for a verdict for Mr Dickson against the first defendant in an amount which reflects the awarding of these amounts. 63There will also be an order that any amounts that are paid pursuant to the judgment be paid to the New South Wales Trustee and Guardian. 64The question of what is to occur in relation to Medicare and Social Security pay-back is problematic. It is not anticipated that Mr Chaffey will have anywhere near sufficient funds to meet the verdict, if he has any at all. Therefore, unlike the position where there is an insurer, the question as to whether amounts need to be retained does not at this point seem to arise. 65In my view, the appropriate course to deal with this is to reserve liberty to apply, and to otherwise leave these matters in the hands of the NSW Trustee and Guardian to address in case moneys are paid in. 66Accordingly, the Court makes the following orders: (1)judgment for the Plaintiff against the First Defendant in the sum of $1,830,701.70; (2)any amount paid pursuant to the judgment be paid to the New South Wales Trustee and Guardian to hold on behalf of the Plaintiff; (3)that the First Defendant pay the Plaintiff's costs of the proceedings; (4)there be liberty to apply in respect of the matter noted in [64] of this judgment on three days' notice.

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: 26 October 2012

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