[2001] NSWCA 305
Miller v Jennings (1954) 92 CLR 190
[1954] HCA 65
Paff v Speed (1961) 105 CLR 549
Source
Original judgment source is linked above.
Catchwords
[2011] HCA 21
Eric Preston Pty Ltd v Euroz Securities Ltd (2011) [2011] FCAFC 11
Lamb v Cotogno (1987) 164 CLR 1[1987] HCA 47
Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705[2001] NSWCA 305
Miller v Jennings (1954) 92 CLR 190[1954] HCA 65
Paff v Speed (1961) 105 CLR 549[1961] HCA 14
Paric v John Holland Constructions Pty Ltd [1985] HCA 58
Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1[2015] NSWCA 90
Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362[1975] HCA 27
Ramsay v Watson (1961) 108 CLR 642[1961] HCA 65
State of New South Wales v Riley (2003) 57 NSWLR 496[2003] NSWCA 208
State of NSW v Moss (2000) 54 NSWLR 536[2000] NSWCA 133
Taub v R (2017) 95 NSWLR 388
Judgment (17 paragraphs)
[1]
Background
The background to the matter may be summarised briefly as follows.
Mr El Assaad asserted that he had been involved in a previous physical altercation with Mr Al Haje's brother on 31 December 2020, in which Mr El Assaad's front teeth were damaged, and that Mr Al Haje's father, Alan Al Haje, had subsequently agreed to pay for his teeth to be repaired (see primary judgment at [50]-[51]). That incident was not reported to police.
The primary judge referred to evidence of text messages between Mr El Assaad and Mr Al Haje's brother on the subject of payment for "the teeth" (primary judgment at [50]) and accepted that Mr El Assaad's motivation for attending Mr Al Haje's property on that occasion had been to obtain "recompense" ([39]-[40]).
The incident leading to the proceedings in this Court occurred on 24 January 2021 when Mr El Assaad went to Mr Al Haje's property at about 9am (primary judgment at [61]). There was CCTV footage of his arrival at the property. Mr El Assaad entered the house (where he could not be seen on the CCTV). Mr Al Haje alleged that Mr El Assaad struck him in the face while inside the house ([62]). (This was not disputed, the issue being as to whether it was in self defence.)
The CCTV footage (which I have reviewed) showed Mr El Assaad emerging from the house a short time later, followed by Mr Al Haje (and his father). Mr El Assaad appeared to grab the side mirror of a car in the driveway. Again, Mr El Assaad does not dispute that he did so. Mr Al Haje's evidence was that he heard Mr El Assaad yell when he left the house "I am going to smash your car" (primary judgment at [65]).
Mr Al Haje and his father then pursued Mr El Assaad towards the street, with Mr El Assaad clearly backing away from them; and Mr El Assaad then punched Mr Al Haje in the face again.
Mr Al Haje was transported by ambulance to Bankstown Hospital. He later had surgery on 3 February 2021 at Liverpool Hospital, being surgery to his jaw (an open reduction internal fixation of the right "ZMC fracture", using metal plates and screws to secure the multiple fractures) (see [81] of the primary judgment). Mr Al Haje consulted with various doctors (his general practitioner, Dr Matter; a psychologist, Dr D'Silva; and a psychiatrist, Dr Pilsky) after the incident, reporting psychological symptoms after the incident. I refer to the medical evidence, including that of the psychiatrist who reviewed Mr Al Haje on instructions from Mr El Assaad's solicitors (Dr Sherman) in more detail below but simply note here that the diagnosis of both psychiatrists was that Mr Al Haje suffers from PTSD (primary judgment at [91]-[95]).
Mr Al Haje commenced proceedings against Mr El Assaad on 2 August 2021, claiming damages (including aggravated and exemplary damages) for assault.
[2]
Primary judgment
As adverted to above, the primary judge, rejected Mr El Assaad's assertion that he was acting in self-defence ([79]) and there is no appeal from that finding.
His Honour's overall perception of Mr El Assaad as a witness was that he was a belligerent person ([41]). His Honour found Mr El Assaad to be an unsatisfactory witness who, while always displaying respect to the court, "seemed to treat some of the questions with disdain and aggression" ([48]). At [49], his Honour referred to the "overwhelmingly negative perception" that he had formed of Mr El Assaad. His Honour preferred the evidence of Mr Al Haje to that of Mr El Assaad where there was a conflict in their evidence ([78(1)]).
As to the altercation, his Honour said that the punch that could be seen on the CCTV (the second punch) was targeted at Mr Al Haje's face and forceful ([103]). His Honour noted that the description of the first punch (which could not be seen on the CCTV footage) was very similar in that it reflected a forceful punch to the face.
At [77], the primary judge found that, based on his analysis of the CCTV footage, Mr El Assaad had been the aggressor since he came down the stairs from the house and his Honour considered that this continued outside the house "even though he was moving backwards". Of the second punch, his Honour said that Mr El Assaad "might well describe his strike as pre-emptive. I would describe it as an attack to ensure the already injured [Mr Al Haje] remained the underdog" ([77]).
For the reasons set out at [78], including that his Honour preferred Mr Al Haje's (and his father's) version of what had occurred over that of Mr El Assaad, his Honour rejected the claim of self-defence ([79]).
The primary judge then considered, in the section headed "After the incident" some of the evidence as to the injuries that had been sustained by Mr Al Haje, noting (at [82]) that Mr Al Haje said he still had a faint scar on his cheek but that he (the primary judge) was not asked to observe, nor were any photographs tendered, of it ([82]). His Honour considered that Mr Al Haje's overall appearance seemed to have been well restored by the surgery that he had undergone. His Honour seems to have accepted that Mr Al Haje still had pain in his jaw together with some restricted movement ([82]) (although this may simply have been a summary of Mr Al Haje's account).
[3]
Grounds of Appeal
By his Notice of Appeal filed on 28 August 2024, Mr El Assaad challenges the finding that Mr Al Haje suffers from chronic PTSD, the assessment of general damages, the assessment of past economic loss and the assessment of future economic loss. I address those as follows.
[4]
Ground 1 - The trial judge erred in finding that the Respondent suffers from chronic PTSD
The thrust of the challenge by Mr El Assaad to the finding of chronic PTSD (of "less than moderate" severity) is his complaint that the primary judge should not have given any weight to the diagnoses by Mr Al Haje's treating medical practitioners or Dr Sherman. There is also a complaint (but no express ground of appeal) as to the lack of reasons for his Honour's finding (at [97]) that the diagnosis of PTSD remained valid and that the condition was chronic, notwithstanding that his Honour accepted that Mr Al Haje's post work history coupled with capacity to do tasks at home tended to favour the downgrading of the severity of the PTSD (see above). Mr El Assaad submits that the lacuna in reasoning in this regard is relevant to the determination of Ground 1.
Mr El Assaad submits that no weight should have been given to the medical evidence (including that which he had himself adduced from Dr Sherman) because he says that the doctors were not provided with all of the relevant facts upon which to base their respective opinions (relying on what was said in Taub v R (2017) 95 NSWLR 388; [2017] NSWCCA 198 (Taub) at [21]-[23] (Simpson JA, Walton and Button JJ agreeing), which I consider in due course).
The relevant facts that Mr El Assaad says were not considered by the practitioners are: Mr Al Haje's care for his mother since June 2020 for 50-60 hours per week without difficulty; Mr Al Haje's work history after the incident; and the fact that Mr Al Haje's father suffered a cardiac arrest in July 2022 which Mr Al Haje found to be "very stressful and upsetting".
Mr Al Haje does not accept that the so-called "relevant facts" were not considered by the respective doctors but in any event submits that those facts were not material to the diagnosis of PTSD reached by Drs Sherman, Pilsky and D'Silva. Mr Al Haje contends that there was no opinion before the primary judge from any expert in the mental health field that did not support a diagnosis of PTSD and emphasises that Mr El Assaad made the forensic decision not to require Dr D'Silva or Dr Pilsky for cross-examination nor to call Dr Sherman.
[5]
Medical evidence
It is convenient here to summarise the relevant evidence as to Mr Al Haje's psychological injuries.
[6]
Dr D'Silva
Dr D'Silva is the clinical psychologist to whom Mr Al Haje was referred in 2021. Mr Al Haje first saw Dr D'Silva on 9 February 2021 (primary judgment at [89]). Dr D'Silva recorded that Mr Al Haje was experiencing, among other symptoms, "nightmares of the assault", "panic attacks", "high levels of anxiety", "flashbacks to the traumatic assault", "depressive symptoms", "social isolation", and "extreme feelings of disappointment and embarrassment" (Ex K).
Dr D'Silva had a consultation with Mr Al Haje again on 22 February 2021 and his notes record that Mr Al Haje reported that he "wakes up often during the night due to nightmares", experiences "flashbacks to the assault", "excessive worry about family being hurt" and "depressive symptoms" (Ex K).
In his report dated 25 June 2023, Dr D'Silva stated that Mr Al Haje reports "psychological symptoms that point to the diagnosis of Post-Traumatic Stress Disorder (DSM V Diagnosis) coupled with symptoms of depression, anxiety and panic attacks"; and said that:
This diagnosis of PTSD is also consistent with the diagnosis given by Consultant Psychiatrist Dr Alex Pilsky. Mr Al Haje has also been prescribed Endep 12.5mg nocte by Dr Pilsky to assist in coping with symptoms of insomnia, panic and significant facial pain.
[7]
Dr Pilsky
Dr Pilsky is a consultant psychiatrist who has treated Mr Al Haje since April 2023. In his report dated 13 April 2023, Dr Pilsky diagnosed that Mr Al Haje suffered from chronic PTSD as a result of the assault.
In that report, Dr Pilsky recorded that:
Since the assault Wisam reported significant physical complaints including jaw dysfunction, changes in his voice and pain amongst others.
With regards to psychiatric symptom Wisam complained of constant anxiety; frequent flashbacks of the event, frequent nightmares of being assaulted and stabbed, significant initial insomnia, reduced sleep of no more than 5-6 hours per night, significant ongoing hypervigilance particularly in his area, constant ruminations about the event, dysphoria and irritable mood and negative view of his future.
Dr Pilsky also recorded the following history elicited from Mr Al Haje as to his work history: that his acting career had "suffered significantly"; and that he was "previously a very successful actor having starred in a number of popular shows and potentially in line to take on even greater roles in Hollywood produced movies". Dr Pilsky noted Mr Al Haje's account that "[t]his has mostly come to an end due to his physical and mental difficulties since the accident" and that Mr Al Haje had tried to pick up a number of lesser roles, but that this had been "sporadic at best" and that he "has disengaged from his agent".
[8]
Dr Sherman
Mr El Assaad tendered two expert reports from Dr Sherman, a consultant psychiatrist, being reports dated 11 December 2023 and 15 March 2024, respectively.
In his first report (11 December 2023), Dr Sherman diagnosed Mr Al Haje as suffering from PTSD. Dr Sherman identified the DSM-5 diagnostic criteria which he said were fulfilled by Mr Al Haje's symptoms (see his report under the subheading (c) under "the Plaintiff's condition on examination and your diagnosis"). In that section of the report, Dr Sherman stated that "[t]he disturbance has caused clinically significant impairment in occupational functioning". (Pausing here, it is clear that in this section of the report Dr Sherman is addressing each of the diagnostic criteria in DSM-5 and has found that each was met.)
Dr Sherman's assessment of Mr Al Haje's condition was that:
In my opinion, he continues to describe significant symptoms of Post-Traumatic Stress Disorder, suggesting that the condition remains moderately severe and is affecting him on a day-to-day basis, with an impact on his work and personal life.
Significantly, for the purposes of Ground 4, Dr Sherman's opinion was that Mr Al Haje "ought to be able to resume his pre-incident occupation following another six months of appropriate psychotherapeutic treatment".
For the purposes of his expert report, Dr Sherman noted that he had been provided with various documents including a "supplementary letter" containing information on photos.
Pausing here, there were in evidence two letters of instruction to Dr Sherman prior to his first report: a letter dated 16 November 2023 and a letter dated 22 November 2023, the latter containing some photographs. In the letter of instruction dated 22 November 2023, Mr Al Haje's solicitor instructed Dr Sherman as follows:
It has come to our attention that the aforementioned medical professionals may not have been apprised of certain key facts, including but not limited to:
1. Mr. Al Haje's ongoing pursuit of professional roles and attendance at auditions.
2. His active participation in social functions and public outings, documented and promoted online.
3. His consistent engagement in gym activities, including weightlifting.
These revelations prompt inquiries into the veracity of Mr Al Haje's asserted psychological injuries, as elaborated in our previous letter of instruction and supplementary letter providing documentation.
[9]
Determination as to Ground 1
As noted above, the complaint by Mr El Assaad goes to the weight that could be attached to the diagnoses by the relevant doctors that he suffers PTSD in circumstances where Mr El Assaad says that those opinions were based on incorrect assumptions as to Mr Al Haje's ability to care for his mother after the incident, his post incident work history and the lack of information as to stress suffered as a result of his father's heart attack.
In this regard, it is significant in my opinion that, even when Dr Sherman's attention was drawn to the History Data, Dr Sherman maintained his diagnosis of PTSD (simply downgrading his assessment of its severity).
There is no doubt that expert evidence which is based upon particular assumptions which are incorrect or not ultimately proved in evidence has been said to be "of little or no value" or "irrelevant" (see Ramsay v Watson (1961) 108 CLR 642 at 649; [1961] HCA 65 (Dixon CJ, McTiernan, Kitto, Taylor and Windeyer JJ); Eric Preston Pty Ltd v Euroz Securities Ltd (2011) [2011] FCAFC 11 at [171] (Jacobson, Foster and Baker JJ); and Paric v John Holland Constructions Pty Ltd [1985] HCA 58 (Mason ACJ, Wilson, Brennan, Deane and Dawson JJ)), as well as Taub, to which Mr El Assaad has referred.
In Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21, the explanation of the so-called "basis rule" was that expert opinion evidence resting on assumptions not backed by primary evidence was irrelevant because the expert's conclusion then lacks a rational relationship with the facts proved (see [90] per Heydon J). See also Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 where Heydon JA, as his Honour then was said (at [64]) that in circumstances where "other admissible evidence establishes that the matters assumed are 'sufficiently like' the matters established 'to render the opinion of the expert of any value', even though they may not correspond 'with complete precision', the opinion will be admissible and material".
In the present case, addressing the three topics in respect of which Mr El Assaad complains that the medical practitioners did not address relevant facts, I do not accept that those matters (even if not considered by or not fully before the doctors) render the conclusion as to PTSD of no weight.
First, as to the level of care that Mr Al Haje said he provided without difficulty for his mother (20/05/2024; T 30.34-44; T 31.10-21), about which there is no reference in Dr Pilsky's report and which is recorded only briefly in Dr Sherman's first report (namely, that he had to "spend time looking after his mother, helping her with chores and helping her to dress"), a matter which Mr El Assaad submits would clearly be significant to the question whether the symptoms were actually causing impairment in social, occupational, or other important areas of functioning. Mr Al Haje argues that it has not been established that the ability to provide care for his mother at the level he did is incompatible with the diagnostic criteria for PTSD. Mr Al Haje says that the highest that this goes is that Dr Sherman's report does not reflect knowledge of the number of hours of care that he provided to his mother.
[10]
Ground 2 - The trial judge erred in assessing general damages in the sum of $150,000
Mr El Assaad challenges the assessment of general damages on two bases: first, he contends that the primary judge erroneously relied upon the finding of PTSD in assessing general damages (the subject of his unsuccessful challenge in Ground 1 ) and, second, he contends that, even with a finding of PTSD, the amount of damages awarded was so inordinately high that it was a wholly erroneous estimate of the damage suffered.
In light of the conclusion reached as to Ground 1, it is only necessary to focus on the second of Mr El Assaad's contentions. The complaint in this regard is that the primary judge approached the assessment of general damages placing significant emphasis on the diagnosis of PTSD, as opposed to considering the effect of the PTSD on Mr Al Haje.
Mr El Assaad points to the notes of Professor David (following his examination of Mr Al Haje in November 2023) to which I have already referred. The findings of Professor David are consistent with those in Associate Professor Mitchell's report dated 23 August 2021 (on which Mr Al Haje relied).
Mr El Assaad notes that Mr Al Haje did not require any surgical intervention to his right TMJ and Professor David considered that, with appropriate conservative management of his right TMJ pain and dysfunction, he should continue to improve suggesting treatment to continue for a further one to two years. Mr El Assaad further points out that, while Professor David thought that Mr Al Haje's overall prognosis with respect to ongoing bruxism and right TMJ pain and dysfunction was guarded, it was dependent on the effective management of his PTSD.
Mr El Assaad also refers to his Honour's finding that Mr Al Haje's ongoing problems seemed to be more in the realm of psychological than physical ([85]) and to Dr Sherman's opinion (at a time before he downgraded his diagnosis from moderately severe to mild PTSD) that Mr Al Haje ought to be able to resume his pre-incident occupation following another six months of appropriate psychotherapeutic treatment.
Thus, Mr El Assaad submits that this is a case where the award of general damages was excessive such that appellate intervention is justified because "the disproportion between injury and award of damages is so great as to make the award quite unreasonable" (citing Wilson v Peisley (1975) 50 ALJR 207 (Wilson v Peisley) at 209 per Barwick CJ). Further, Mr El Assaad submits that the fact that the primary judge also made an award for aggravated damages which are compensatory in nature (see Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47 at [8] (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ)) meant that it was necessary to avoid double counting with the award of general damages (citing State of New South Wales v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208 at [130]-[131] (Hodgson JA, Sheller JA and Nicholas J agreeing)).
[11]
Determination as to Ground 2
As Mr El Assaad has noted, the purpose of the award of general damages is to compensate an injured plaintiff for non-pecuniary losses including loss of amenities or enjoyment of life and pain and suffering (see Paff v Speed (1961) 105 CLR 549 at 559 (Fullagar J); [1961] HCA 14). However, at common law, general damages for pain and suffering resulting from personal injury were "almost entirely [a] matter of impression and of common sense, and only subject to review in very special cases" (see Miller v Jennings (1954) 92 CLR 190 at 195 (Dixon CJ and Kitto J); [1954] HCA 65). The caution as to appellate review in relation to such an award is well-known (as indicated in the authorities to which Mr Al Haje has referred).
I do not accept that the primary judge acted on a wrong principle of law, as Mr El Assaad submits he did (i.e., as to the weight to be attributed to the opinions of the doctors who diagnosed PTSD). This has been addressed in Ground 1 above.
I accept that, in light of Dr Sherman's opinion to the effect that the PTSD symptoms with appropriate management would permit a return to the pre-incident work after approximately six months, it might well be said that the sum awarded for general damages was generous. However, taking into account all the circumstances (including Mr El Assaad's emphasis on the professed ability of Mr Al Hage to care for his mother for so many hours a week without difficulty) I am not persuaded that the award was so inordinately high as to be a wholly erroneous estimate of the damage suffered, as Mr El Assaad contends.
For completeness, I add that, while Mr El Assaad emphasises the need to avoid double counting when noting that there was an award made for aggravated damages, it appears that at [128] his Honour was mindful of the need to do so, having regard to his statement that the award for general damages includes an element of damages for hurt feelings. I cannot discern any basis for a contention that there was in fact any double counting. The award for aggravated damages was joint with the award for exemplary damages and his Honour indicated that the former "should be limited" ([128]).
Therefore, I have concluded that Ground 2 is not made good.
[12]
Ground 3 - The trial judge erred in assessing past economic loss in the sum of $75,000
[13]
Ground 4 - The trial judge erred in assessing future economic loss in the sum of $175,000
These grounds were dealt with together by the parties in their respective submissions.
As to Ground 3, the award for past economic loss (in the sum of $75,000), his Honour considered that the best approach in this case was by way of a buffer "which recognises both [Mr Al Haje's] pre-incident earnings and the uncertainties of what work he might have obtained", as well as recognising the factors that his Honour considered were relevant to be taken into account in the assessment (see primary judgment at [109]- [110]).
Mr Al Haje notes that he claimed damages for past economic loss from the date of the incident on the basis of his average weekly earnings in the previous two years and that the primary judge's approach when assessing this claim was to apply a discount to Mr Al Haje's pre-assault earnings to reflect those relevant factors that were unrelated to the assault that may have diminished Mr Al Haje's earnings from the pre-assault earnings.
Mr El Assaad contends that the primary judge ought to have found that Mr Al Haje had not suffered any diminution in his earning capacity that was productive of financial loss.
Mr El Assaad says that the first three of the factors identified by his Honour at [109] all weighed against a finding that Mr Al Haje had established any entitlement to past economic loss. Those factors were that: acting work is notoriously uncertain and there were never any guarantees that Mr Al Haje would obtain any particular roles, or in fact any at all ([109(1)]); that Mr Al Haje has been occupied by, and remunerated in respect of the care given to his mother ([109(2)]); and that Mr Al Haje's work as a Master of Ceremonies (MC) was a benefit arising from Mr Al Haje's role in "Meet the Habibs" (which benefit may have diminished as the show was not continued and perhaps faded from the public's memory) ([109(3)]).
Mr El Assaad says that the sporadic nature of Mr Al Haje's earnings was established by the tax returns filed for Coin Jungle (the company through which Mr Al Haje provides his acting services) and for him personally; and he argues that, based on his personal tax returns, Mr Al Haje declared more income post-incident in the 2022 financial year, than in the two financial years prior to the incident.
[14]
Determination as to Grounds 3 and 4
I do not accept that his Honour erred in awarding the buffer that he did for past economic loss. In circumstances where there were a number of uncertainties as to what the quantum of the past economic loss suffered as a result of the incident, a buffer was appropriate.
The suggestion that his Honour should have found that no economic loss had been sustained is untenable in circumstances where there was a demonstrated pre-incident earning capacity. There is no doubt that the physical injuries suffered meant that there was at least a period of time during which Mr Al Haje was unable to work, and the finding of PTSD has not been disturbed.
Ground 3 is not made good.
As to Ground 4, the unchallenged opinion of Dr Sherman stands as the only evidence as to the likely duration of any future lack of earning capacity, which Dr Sherman assessed to be, with appropriate treatment, a period of six months from the date of his report (1 December 2023). The primary judge did not refer to that evidence. Ironic as it may be (where Mr El Assaad challenges the finding of PTSD based on Dr Sherman's analysis) Dr Sherman's conclusion as to the duration of the impact of that psychological condition, in the absence of any other evidence to challenge that, should have been accepted. There was no basis for a finding of loss of future earning capacity for, in effect, the duration of Mr Al Haje's working life. The buffer that was allowed in that regard was inordinately high.
In all the circumstances, I consider that only a modest buffer should have been allowed for loss of future earning capacity that, on the evidence, was likely to have been resolved within 6 months. In that regard, I would allow a buffer of $20,000.
[15]
Costs
The effect of the above conclusions is that the award of some $454,000 will be reduced by $155,000. That is a substantial success for the appellant and one that would not have been achieved but for the appeal. Therefore, notwithstanding that there has been mixed success on the appeal, I think the appropriate order is that Mr Al Haje pay 50% of Mr El Assaad's costs of the appeal. However, as noted, Mr Al Haje sought an opportunity to make submissions in the event that the appeal were partially to succeed. Therefore, directions will be made to permit that to be determined on the papers.
[16]
Orders
For the above reasons, I propose the following orders:
1. The appeal be allowed in part.
2. Set aside the award made for future economic loss (in the amount of $175,000) and in lieu thereof award the sum of $20,000 for future economic loss.
3. Direct the respondent to file and serve any brief submissions as to costs (not exceeding 3 pages) by 10 January 2025 and the appellant to file and serve any brief submissions in response (not exceeding 3 pages) by 24 January 2025, with a view to determining the issue of costs on the papers.
BALL JA: I agree with Ward P.
PRICE AJA: I agree with Ward P.
[17]
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: 20 December 2024
[This headnote is not to be read as part of the judgment]
At an altercation at the respondent's residence in January 2021, the appellant punched the respondent twice in the head (a fact the appellant did not dispute). The respondent claimed that he suffered both physical and psychological injuries. The respondent brought proceedings against the appellant in August 2021, claiming damages (including aggravated and exemplary damages) for the assault. The primary judge, rejecting the appellant's defence that he was acting in self-defence, awarded damages totalling $454,340.95.
The appellant did not cavil with the findings as to liability, nor with certain of the awards of damages (including damages for past and future medical expenses and exemplary damages). However, the appellant did allege error in the finding that the respondent suffers from chronic post traumatic stress disorder (PTSD), and the assessment of general damages, past economic loss, and future economic loss.
Held allowing the appeal in part (Ward P, Ball JA and Price AJA agreeing):
(1) The complaints made by the appellant as to the accuracy and completeness of certain of the history or assumptions on which the medical experts' reports were based did not lead to the conclusion that no weight should have been placed on the diagnosis of chronic PTSD (Ward P at [60], [72], Ball JA at [125], Price AJA at [126]).
(2) At common law, general damages for pain and suffering resulting from personal injury are almost entirely a matter of impression and common sense; the caution as to appellate review of such an award is well-known (Ward P at [84], Ball JA at [125], Price AJA at [126]). The award of damages was not so inordinately high as to be a wholly erroneous estimate of the damage suffered, nor was there any basis for a suggestion that there was double counting in relation to the award of aggravated damages (Ward P at [84]-[85], Ball JA at [125], Price AJA at [126]).
Miller v Jennings (1954) 92 CLE 190; [1954] HCA 65 applied.
(3) In circumstances where there were a number of uncertainties as to the quantum of the past economic loss suffered as a result of the assault, a buffer was appropriate; there was a demonstrated pre-injury earning capacity and there is no doubt that the physical and psychological injuries suffered meant that there was at least a period of time during which the respondent was unable to work (Ward P at [118]-[119], Ball JA at [125], Price AJA at [126]).
(4) The only evidence as to the likely duration of any lack of earning capacity was provided by a medical expert (Dr Sherman), who estimated the duration as a period of six months from 1 December 2023. In the absence of other evidence, there was no basis for the primary judge's finding of loss of future earning capacity for, in effect, the duration of the respondent's working life, and the award of damages for future economic loss should be reduced from $175,000 to $20,000 (Ward P at [121]-[122], Ball JA at [125], Price AJA at [126]).
JUDGMENT
WARD P: The appellant, Mohammad El Assaad, appeals from a decision by Elkaim AJ awarding various heads of damages in favour of the respondent, Wisam Al Haje, for physical and psychological injuries resulting from a physical altercation between the two men at the respondent's residence on 24 January 2021 (Al Haje v Elassaad [2024] NSWSC 689, the primary judgment).
Relevantly, his Honour found (and Mr El Assaad did not in fact dispute) that Mr El Assaad punched Mr Al Haje twice (forcefully) in the face. His Honour rejected Mr El Assaad's defence that he was acting in self-defence (pleaded both as a common law defence and in reliance on ss 52-53 of the Civil Liability Act 2002 (NSW) (Civil Liability Act) - see defence to amended statement of claim at [1]; [8]-[9]) (see primary judgment at [3]; [62]).
Mr El Assaad also relied in his defence on s 54 of the Civil Liability Act (on the basis that any injury or damages suffered by Mr Al Haje occurred at the time of or following conduct that constituted a serious offence on the part of Mr Al Haje and where that conduct contributed materially to the injury or damage) but it appears that at the hearing Counsel for Mr El Assaad agreed that the only defence was that based on self-defence (see [3] of the primary judgment).
Mr Al Haje particularised the injuries he suffered as including: a severe comminuted fracture to the right eye socket and the right cheek bone, a fractured nose, lacerations to the right eye lid, severe nervous shock, paraesthesia to the face, and Post Traumatic Stress Disorder (PTSD) (see Amended Statement of Particulars filed 10 October 2023 at [3]). He particularised numerous continuing disabilities (Amended Statement of Particulars at [5]).
The primary judge appears to have accepted that Mr Al Haje suffered from the physical injuries that were particularised in his claim (although there was no express finding to that effect) but rejected a suggestion that Mr Al Haje suffered a spinal cord lesion (see at [101]). The main debate before his Honour (which is also the subject of challenge in this Court) was as to whether Mr Al Haje suffers from chronic PTSD. His Honour found that he did, though not to the extent that Mr Al Haje asserted (primary judgment at [123]).
His Honour awarded damages under various heads, totalling $454,340.95 on 6 June 2024. The judgment sum included amounts awarded for past and future medical expenses; and an award of exemplary damages (from which there is no appeal). The damages in contention on this appeal are: the award of general damages ($150,000); the award for past economic loss ($75,000) and the award for future economic loss ($175,000).
In a subsequent judgment on 28 June 2024, his Honour ordered that Mr El Assaad pay 50% of Mr Al Haje's costs of the proceedings assessed on an ordinary basis up to and including 29 April 2024 and the whole of Mr Al Haje's costs of the proceedings after 29 April 2024 assessed on an indemnity basis (Al Haje v Elassaad (No 2) [2024] NSWSC 794), that special costs order being on the basis of the rejection or non-acceptance of a Calderbank offer that had been made in the sum of $250,000 plus costs.
His Honour referred to the observations made by Professor David, a craniomaxillofacial surgeon, in his 23 November 2023 report, including that Mr Al Haje had a hardly noticeable scar over his right forehead and eyebrow, and Professor David's evidence that Mr Al Haje had a pre-existing nasoseptal deformity and that the CT scan taken at the hospital did not refer to the nose being fractured ([82]). His Honour noted that Professor David had diagnosed "right TMJ pain and dysfunction" (a reference to the temporomandibular joint), "Bruxism [grinding of teeth] secondary to PTSD and a soft issue damage of the right TMJ" and "minor dysasethesia over the prominence of the right cheek" ([83]).
At ([85]) his Honour concluded that Mr Al Haje's ongoing problems seemed to be "more in the realm of psychological than physical", indicating that this meant that Mr Al Haje's future would be mostly affected by the non-physical injuries.
Pausing here, there was no express finding as to the physical injuries other than his Honour's finding that he was not satisfied that Mr Al Haje suffered a spinal cord lesion (as had been suggested by one of the neurologists, Dr Teychenne) ([101]). However, it may be assumed (from the fact that the primary judge made awards for the payment of various of the medical expenses relating to physical injuries) that certain of the particularised physical injuries had been established as resulting from the incident. In any event, there is no complaint as to his Honour's treatment of the claim in relation to the physical injuries.
As to the contentious issue as to whether Mr Al Haje suffered from PTSD, his Honour concluded that he did, but not to the extent that Mr Al Haje asserts ([123]).
In addressing that issue, his Honour noted the submission by Mr El Assaad that Mr Al Haje was grossly exaggerating his symptoms to the extent that the presence of a PTSD could not be accepted ([85]) and expressly rejected Mr El Assaad's further submission that Mr Al Haje was, with his acting background (see below), acting out a scenario of psychological ill-health ([86]). In that regard, his Honour says that Mr Al Haje was not histrionic, not tearful, and did not make extravagant assertions about his condition.
His Honour regarded as unusual a submission made for Mr El Assaad as to Mr Al Haje only having relied on the reports of treating doctors, his Honour expressing the view that a treating doctor's report will always be particularly valuable because of the greater knowledge that the doctor will have of his (or her) own patient ([87]).
The primary judge then went on to consider some of the medical evidence (from [88]) including the two reports from Dr Sherman (who concluded in the second report that Mr Al Haje does suffer from PTSD as a consequence of the alleged assault but that the severity of his symptomology was mild, as opposed to his earlier view that it was moderately severe (see at [95])).
Referring to the cross-examination of Mr Al Haje as to his work history following the incident, his Honour considered that Mr Al Haje "was perhaps not as housebound and incapable of work as he initially suggested" ([96]). At [97], the primary judge said that Mr Al Haje's "post-incident work history coupled with his obvious capacity to do tasks at home" tended to favour the "downgrading" of the severity of the PTSD to less than moderate but his Honour was satisfied that the "diagnosis [of PTSD] remains valid, and the condition is chronic".
His Honour proceeded, from [102], to assess the damages to be awarded.
As to the award of general damages, the primary judge's assessment was based on three matters: the severity of the initial injury requiring surgery and the insertion of internal fixation, the continuing facial pain, and the diagnosis of PTSD, even if less than moderately severe ([105]).
Dr Sherman in his first report recorded Mr Al Haje's work history, including Mr Al Haje's account that he "last worked a few months ago when he had a small role on stage and did not have to walk audition [sic]" and that "as a result of the facial injury, as well as the psychological impact, he has missed out on a lot of opportunities".
Dr Sherman noted that Mr Al Haje had completed the PCL-5 (PTSD Checklist for DSM-5) and said that:
He scored 63 out of a possible 80, with sufficient criteria endorsed in each of the 4 categories to support the diagnosis of post-traumatic stress disorder. The PCL- 5 is a psychometrically sound test supported by multiple sources of evidence.
Dr Sherman, responding to a request that he set out any other matters considered relevant, stated in his report that:
I questioned Mr Al Haje at length about his recent work history as revealed by the information provided in your supplementary letter of 22 November 2023. He pointed out that the series called '100% Wolf: Book of Hath' was largely filmed before the incident of 2021. He said he is able to produce documentation to prove this. He explained that occasionally actors might be called back to re-film the odd scene and that this might have happened after the alleged assault. Regarding the stage play 'King of Pigs', he did not deny that he had occasional work; however, he stated that the amount of work he had been able to obtain after the incident had greatly diminished which he attributes to his inability to prepare for auditions, as described above.
Whilst this, and the other information you provided regarding his balance and gym activities, might lead one to question the veracity of some of his information, I am satisfied on the balance of probabilities that he is suffering Post-Traumatic Stress Disorder as a result of the incident on 24 January 2021, and that there is sufficient information to support this diagnosis.
He sustained significant physical injuries in the incident, necessitating surgery and with ongoing issues to do with facial sensation and nasal function,.
It would therefore not be unexpected that he would also sustain a psychological injury, which is Post-Traumatic Stress Disorder.
Dr Sherman was then asked to provide a further report in the matter. That second report (dated 15 March 2024) referred to letters of instruction dated 16 November 2023, 22 November 2023 and 12 March 2024 (the last was not included in the appeal books). In that report, Dr Sherman stated his opinion as follows:
Having reviewed all the documentation you provided me with, in particular, the document "Sam Al Haje's History Data" from In Entertainment, it is my opinion that there was a considerable degree of embellishment of Mr Al Haje's symptoms and incapacity in the history that he gave me when I interviewed him on 28 November 2023.
It appears that he applied for and indeed obtained, significant amounts of work as recently as January 2023 (when the document ends). This does not accord with the history he gave me which suggested that he had been unable to secure employment in the time following the alleged assault.
My opinion continues to be that he does suffer from post-traumatic stress disorder as a consequence of the alleged assault, however, that the severity of his symptomatology at the time that I assessed him was mild as opposed to moderately severe, as I opined in my first report before I had access to the most recent information concerning his work history.
The document "Sam Alhaje's History Data" appears (from its footer) to be a document prepared by Mr Al Haje's then agent (Catherine Poulton) recording appointments or submissions as to proposed work in the entertainment industry (History Data). Mr Al Haje says that Dr Sherman was also provided with a series of photographs obtained from social media, his "IMDB History", and extracts of what appear to be online searches in relation to him (but those or some of those appear to be what was included in the 22 November 2023 letter of instruction).
It does not matter that the actual level of care that Mr Al Haje provided to his mother was a key assumption on which Dr Sherman's report was based, having regard to the analysis by Dr Sherman of the diagnostic criteria for DSM-5 (in which care for Mr Al Haje's mother does not directly arise - it being at best an aspect of the conclusion as to "occupational functioning") and having regard to the weight clearly attached by Dr Sherman to the diagnostic criteria and the completion by Mr Al Haje of the PTSD checklist.
While I accept that the ability of Mr Al Haje to care for his mother at the level he says he did (which the primary judge himself considered seemed excessive) might lead one to conclude that Mr Al Haje had embellished the impairment to his occupational functioning, it does not lead me to conclude that this (in isolation or collectively with the other matters) should have led the primary judge to accord no weight at all to Dr Sherman's opinion. It is not necessary to consider the fact that it is not recorded in Dr Pilsky's opinion since Dr Sherman's opinion (tendered by Mr Al Haje himself) suffices to establish that Mr Al Haje suffers from chronic PTSD at a mild level of severity.
As to the second of the matters to which Mr El Assaad points (the evidence as to Mr Al Haje's post incident work history), the submissions by the respective parties here descend into the minutiae of Mr Al Haje's acting roles after the incident and the detail or lack of detail as to those matters in the relevant reports.
So, for example, there is debate in the submissions as to how much work was done by Mr Al Haje on season 2 of the animated children's show '100% Wolf' (21/05/2024; T 94.20-26). Mr El Assaad emphasises that Mr Al Haje's evidence was that he only did "slightly more" work on that series before the incident compared with after the incident (20/05/2024; T 73.12-17, 21/05/2024; T 95.18-21) whereas, when questioned by Dr Sherman, Mr Al Haje is reported as having said that the series was largely filmed before the incident but that he may have had to re-film "the odd scene" after the incident.
Mr Al Haje submits that the simple explanation for there being no reference to Mr Al Haje's work in Dr Pilsky's treating reports is that Dr Pilsky was treating Mr Al Haje for PTSD and as such, would not be concerned with a particularisation of the PTSD's impact on Mr Al Haje's earning capacity; and he says that Dr Sherman was aware of Mr Al Haje's involvement in the series (as he clearly was, having regard to the first report, albeit that there was some doubt as to the level of work on the series post incident).
Similarly, there is a dispute between the parties as to when Mr Al Haje commenced rehearsals for the stage production "King of Pigs" (Mr El Assaad in submissions putting this as occurring in February 2021; Mr Al Haje stating that it was from February 2022 - the difference being as to whether it was in the weeks after the incident or more than 12 months after the incident). Moreover, insofar as Mr El Assaad points to the lack of reference in the reports to Mr Al Haje travelling out of Sydney to perform in that production, Mr Al Haje says that it has not been established why or how the ability to travel out of Sydney over a period of less than one month (a year after the incident) is inconsistent with a diagnosis of PTSD.
The third example of post incident work history to which Mr El Assaad refers is the small stage role for which Mr Al Haje did not have to audition to which Dr Sherman refers in his report. Here the complaint seems to be that Dr Sherman was not told that there were approximately eight to ten performances of the play ("Once Upon a Time in Lebanon") in 2023 (21/05/2024; T 88.33-40). Mr Al Haje disputes that there is any material difference in what Dr Sherman was instructed and what Mr El Assaad asserts he should have been told but in any event points to the fact that he disclosed this information in his 12 October 2023 Evidentiary Report, which was in the possession of Mr El Assaad at the time Dr Sherman examined Mr Al Haje on 28 November 2023.
Mr Al Haje further says that the History Data does not show that Mr Al Haje applied for significant amounts of work, nor does it show that Mr Al Haje obtained any work as late as January 2023. Rather, it is said that the History Data shows that, from 1 January 2022 to 12 January 2023, Mr Al Haje sent out 12 self-tapes and attended one general audition. Mr Al Haje received a first recall in relation to one of those auditions, but the History Data does not establish that Mr Al Haje obtained that role.
As to these matters, I do not consider that the fact that certain of the reported work history may have been incomplete or understated is something that can be said materially to affect the conclusion reached by Dr Sherman based on the diagnostic criteria and PTSD checklist. Dr Sherman was aware that Mr Al Haje had undertaken some stage and television work after the incident. It is by no means apparent that Dr Sherman's opinion would have been materially different had the matters to which Mr El Assaad refers been directed to his attention. It does not warrant the rejection of Dr Sherman's diagnosis as a whole (which is in effect what Mr El Assaad here contends when he asserts that no weight should have been given to that diagnosis).
Finally, as to the third of the topics that Mr El Assaad says was not before the doctors (the fact of Mr Al Haje's father's cardiac arrest in July 2022 and the stress and upset that had caused Mr Al Haje) it is noted by Mr Al Haje that Dr Sherman did record in his initial report that Mr Al Haje's father had sustained a cardiac arrest (and that Mr Al Haje confirmed in cross-examination that he had told Dr Sherman about this). In those circumstances, the complaint as to non-disclosure of this matter goes nowhere.
In conclusion on this ground, I do not accept that (taken individually or in combination) the complaints that Mr El Assaad makes as to the accuracy (or, more precisely, completeness) of certain of the history or assumptions on which Dr Sherman's report is based lead to the conclusion that no weight should have been placed on Dr Sherman's diagnosis of chronic PTSD. That diagnosis, maintained in circumstances where Mr El Assaad's solicitors had drawn Dr Sherman's attention to matters that Dr Sherman accepted might lead to questions as to the veracity of some of the information he had been given, was sufficient to establish that Mr Al Haje suffered at the time from chronic PTSD. His Honour did not err in so finding.
Ground 1 is not made good.
Mr El Assaad submits that the award of general damages in the sum of $150,000 should be set aside and, in lieu thereof, an award of no more than $50,000 should be allowed.
In his submissions in response, Mr Al Haje points to authority for the proposition that the assessment of non-economic loss is an "evaluative process in respect of which minds may reasonably differ" (Woolworths Ltd v Lawlor [2004] NSWCA 209 at [14] (Beazley JA, as Her Excellency then was; Hodgson and Tobias JJA agreeing)) and that an appellate court will not interfere with the assessment of damages "simply because it would have awarded a different figure had it tried the case at first instance" (Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362; [1975] HCA 27 per Gibbs J at [4]). Mr Al Haje also notes that, in assessing the proportion of a most extreme case, a court is not required to arrive at an unrealistic level of precision provided the percentage falls within a reasonable range of assessment (citing Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 per Basten JA).
Mr Al Haje submits that there was ample evidence of the injuries and disabilities that he sustained (that are not the subject of challenge in this Court) which are relevant to an assessment of general damages; and he notes that the primary judge rejected the submission made by Mr El Assaad at first instance that he was grossly exaggerating his symptoms as to PTSD.
Mr Al Haje invokes the "settled rule" referred to in Wilson v Peisley and applied in Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90 at [232] (Barrett and Gleeson JJA, Tobias AJA) to the effect that an appellate court will not disturb a primary judge's award of damages for personal injury unless it is convinced that the judge has "acted on a wrong principle of law or that he has misapprehended the facts or that the amount of damages awarded is so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered". Mr Al Haje submits that this is not such a case.
In response to this, Mr Al Haje says that the submission that those first three factors weigh against a finding that he had established any entitlement to past economic loss is inconsistent with relevant authority in respect of the assessment of damages in situations that include an element of uncertainty (referring to what was said in State of NSW v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133 by Heydon JA at [87] to the effect that where earning capacity has unquestionably been reduced but its extent is difficult to assess, it is for the court to form a discretionary judgment "by reference to not wholly determinate criteria within fairly wide parameters" as to the loss (even where no precise evidence of relevant earning rates is tendered)), his Honour there describing this as the "assessment of the value of a chance".
In relation to the particular submissions by Mr El Assaad in relation to the first three factors, Mr Al Haje says that: the fact that there were never any guarantees that he would obtain any particular roles supports the primary judge's approach that his post assault earnings could not necessarily be equated with his pre assault earnings, as does the comment by his Honour as to the diminishing benefit of the MC work; and he argues that his role as his mother's carer does not show error in the finding that he suffered an interference in his earning capacity as an actor.
Mr Al Haje says that his personal tax returns in 2020 and 2021 do not reflect the extent of his earnings in those years because the majority of his income was generated through Coin Jungle, and when the returns are combined, he declared far more overall income in those years than in 2022.
As to the fourth factor, (the finding that Mr Al Haje "did have a reasonably steady income derived either from his acting or his tutoring of acting, both of which have steadily diminished to the point where he no longer derives any income from these sources") (primary judgment at [109(4)]), Mr El Assaad says that is inconsistent with Mr Al Haje's evidence. Mr El Assaad refers in this regard to Mr Al Haje's evidence that, prior to the incident, his earnings from acting were not regular and he would not get the same pay cheque from week to week (20/05/2024; T 38.23-25) and that, while he also taught at The Actors Pulse studio on a causal basis earning $150 per class (20/05/2024; T 39.44-47), that work ceased towards the end of 2019 as "COVID had hit and classes had stopped" (20/05/2024; T 40.14-15). Mr El Assaad says that the fourth factor also ignores Mr Al Haje's acceptance that COVID-19 was a factor in the reduction of his income from teaching (see [107] of the primary judgment); and that, despite Mr Al Haje's submission that work would have become more available, no evidence was adduced in that regard.
Mr Al Haje says there was no error in this finding; that the fact that he did not earn the same pay each week does not mean that he did not have a reasonably steady income; and that his tax returns (which speak for themselves) support the conclusion that he had a regularly steady income. As to the import of COVID-19, Mr Al Haje says that his Honour did not attribute the decline in his earnings solely to the assault; rather his Honour was identifying his current circumstances. Mr Al Haje says that the fact that his Honour did not award damages for past economic loss at the same rate as the pre-assault earnings demonstrates that his Honour allowed for multiple factors contributing to the reduction (one of those being the assault). Mr Al Haje says that it was open to his Honour to find that work opportunities that were disrupted by the pandemic would return following the lifting of the pandemic related restrictions.
In reply submissions, Mr El Assaad emphasises that Mr Al Haje's own evidence was that Coin Jungle was the corporate vehicle used to generate all of Mr Al Haje's income for 2019-2021 (21/05/2024; T 106.11-14); that in 2019, Coin Jungle's revenue was generated in four ways (teaching work at The Actors Pulse studio (20/05/2024; T 41.12-14, 30-32), other teaching work, acting services and MC work (21/05/2024; T 108.37-43)); and that the significant increase in the 2020 financial year was "largely due to the coaching work that the company was doing… The MCing, and other acting work." (T 111.19-2).
It is noted that Mr Al Haje stopped all teaching work at The Actors Pulse studio before the incident (20/05/2024; T 40.13-15) and also ceased doing any other teaching work and MC work before the incident (21/05/2024; T 109.13-17; T 112.22-33). Mr El Assaad says that the cessation of those income producing activities for reasons unrelated to the incident, explains the difference in Coin Jungle's declared income between the 2020 and the 2021 financial years.
It is noted that the primary judge did not make any finding about Mr Al Haje returning to or being incapacitated from returning to teaching work at The Actors Pulse studio, other teaching work or MC work and that no evidence was adduced in that respect. Mr El Assaad submits that there is no basis to find that Mr Al Haje's particular work opportunities would have returned.
As to the fifth factor (that Mr Al Haje had clearly suffered a loss in the regard held of him in the "industry") (primary judgment at [109(5)]), Mr El Assaad says that the evidence did not establish this. In particular, Mr El Assaad says that the email from Mr Al Haje's former agent, Catherine Poulton Management, terminating his representation was not for any reason connected to the incident. Mr Al Haje submits that this argument is misconceived; and that it was open for his Honour, having found that he sustained injuries and disabilities as a result of the assault, to find that he had suffered a loss in the regard held of him in the entertainment industry (as supported by his agent terminating the agency). Mr Al Haje says that it was not necessary for Catherine Poulton to have made specific reference to the assault as the reason for termination of the agency.
In reply submissions, Mr El Assaad maintains that the primary finding in terms of the fifth factor was entirely speculative and not open on the evidence.
As to the sixth factor (Mr Al Haje's loss of confidence), Mr El Assaad says that even if it was open to find that Mr Al Haje's loss of confidence is a characteristic which must be relevant to an acting career (primary judgment at [109(6)]), it did not stop Mr Al Haje attempting or obtaining acting work. It is noted that Mr Al Haje continued to apply for roles up until his representation was terminated by Catherine Poulton Management in December 2022 (20/05/2024; T 69.48-49). Mr El Assaad points out that Mr Al Haje's 2023 personal tax return recorded a small amount of income from his work as a "performing artist" and he emphasises that there was no evidence that Mr Al Haje had even tried to get another agent.
Mr Al Haje says this submission is inconsistent with his evidence as to feeling "shattered and devastated" when his agent terminated the agency and to his feeling that he had lost momentum and confidence. Mr Al Haje submits that the fact that, while he has continued to apply for roles, he has only recorded a small amount of income, supports the finding of economic loss; and says that the reason he did not attempt to retain another agent is his loss of confidence. In reply submissions, Mr El Assaad says that this submission as to loss of confidence ignores the cross-examination of Mr Al Haje (at 20/05/2024; T 70.1-31; T 77.27-49). Mr El Assaad says that that cross-examination clearly established that he had continued to apply for a significant number of roles after the incident, despite Mr Al Haje's submissions to the contrary.
Overall, Mr Al Haje points to his demonstrated earning capacity before the incident (as established by his personal tax returns and those of his corporate vehicle, Coin Jungle) and says that in those circumstances, when there is no challenge on appeal to the fact that he sustained physical injuries that required surgery and a period of recovery from that surgery, and continued to experience symptoms of those physical injuries as at the time of the hearing, the submission by Mr El Assaad that the primary judge should have not awarded any damages for past economic loss is unsustainable. Mr Al Haje submits that the approach to the assessment of past economic loss that was adopted by the primary judge was open to him when considering competing factors that were relevant to Mr Al Haje's claim for past economic loss.
As to the award of $175,000 for future economic loss as a buffer, his Honour said (at [114]), that this was "roughly equivalent to $175 per week on the 3% tables for 37 years less 15% for vicissitudes" (I read this not as being that his Honour calculated the buffer in that way but more as an indication that he considered it was reasonable having tested it against such a calculation).
Mr El Assaad complains that Mr Al Haje adduced no independent evidence about the acting industry or as to his acting ability (as noted by the primary judge at [108]), noting that Mr Al Haje bore the onus of establishing this alleged loss. Mr El Assaad also points out that Mr Al Haje has not pursued any teaching or coaching work since the end of 2019 (such as he used to carry out at The Actors Pulse studio) and that his earnings in the acing industry were very sporadic. Mr El Assaad again points to the fact that Mr Al Haje has not sought to obtain an agent since his agreement with Catherine Poulton Management was terminated, noting that Mr Al Haje had a previous agent before being represented by Catherine Poulton Management (20/05/2024; T 37.5-11).
Insofar as the primary judge considered that the fact that Mr Al Haje had not sought to obtain another agent was "indicative of the lack of confidence he asserts in his capacity to be an actor" (at [98]); having earlier noted that Mr Al Haje had said that he had not engaged another agent "because he lacked momentum and confidence in his acting ability" (at [16]), Mr El Assaad points to the fact that Mr Al Haje continued to apply for a significant number of roles and in fact obtained work after the incident up until December 2022 (and that since 2022 he had been the registered carer for his mother).
Mr El Assaad also refers to the observation by the primary judge in the subsequent costs judgment at [13(2)] that the "income of an actor is dependent on many things, ranging from the technical aspects of acting to the simple popularity of the actor" and that Mr Al Haje did not call any evidence to substantiate his potential (his Honour there pointing to the potential for his agent to have given evidence of his possible career path; or that other actors could have spoken about his ability as an actor).
Mr El Assaad also emphasises that Dr Sherman's opinion was that Mr Al Haje ought to be able to resume his pre-incident occupation following another six months of appropriate psychotherapeutic treatment and that Professor David opined that Mr Al Haje's dento-facial injuries did not affect his capacity for employment as an actor at that time.
Mr El Assaad thus submits that the evidence did not support "anything like the size of the buffer" awarded by the primary judge and that his Honour should have found that Mr Al Haje failed to discharge his onus in establishing any compensable future economic loss.
Mr Al Haje says that the submissions based on his work history are based on a continued misreading of the document entitled "Sam Al Haje's History Data"; and that the alleged inconsistency between him acting as a registered carer for his mother and him lacking momentum and confidence in his acting ability is not explained nor justified by Mr El Assaad.
Mr Al Haje submits that there was evidence sufficient for the finding as to future loss of earning capacity and that it should not be disturbed.
As to the submission of Mr El Assaad based on Dr Sherman's opinion that he ought to be able to resume his pre-incident occupation following another six months of appropriate psychotherapy, Mr Al Haje says that this is inconsistent with Mr El Assaad's submission that the primary judge ought to have made a nil allowance for damages for future economic loss.
In reply submissions, Mr El Assaad says that Dr Sherman's opinion that Mr Al Haje ought to be able to resume his pre-incident occupation following another six months of appropriate psychotherapy was unchallenged and ought to have been accepted. Further, Mr El Assaad says that this opinion is not inconsistent with his submission that the primary judge ought to have found that Mr Al Haje would not suffer any ongoing diminution in his earning capacity that was productive of economic loss. It is noted that Dr Sherman examined Mr Al Haje on 28 November 2023 and the primary judge was assessing damages more than 6 months later, in circumstances where Mr Al Haje continued seeing Dr Pilsky for treatment (21/05/2024; T 165.28-29).
For the reasons that follow, grounds 1, 2 and 3 are not made good. Where his Honour did err, however, was in assessing Mr Al Haje's entitlement to future economic loss at $175,000 in circumstances where the only evidence as to the likely duration of his inability to work was that he ought to be able to resume his pre-incident occupation "following another six months of appropriate psychotherapeutic treatment" (see report dated 11 December 2023 of Dr Ian Sherman, psychiatrist at (i)).
The primary judge's award for future economic loss should be set aside and in lieu thereof there should be an award of damages in Mr Al Haje's favour for future economic loss in the sum of $20,000. As there has been mixed success on the appeal, my provisional view is that there should be an order that Mr Al Haje pay 50% of Mr El Assaad's costs of the appeal. However, as Mr Al Haje indicated in submissions that he wished separately to address the question of costs if the appeal were to be dismissed or (as is the case) only partially successful, directions should be made for brief submissions on costs with that issue to be dealt with on the papers.