Elliott v Kotsopoulos

Del Ponte v Del Ponte [1987] 11 NSWLR 498 Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 CASES CITED: State of NSW v Ibbett [2005] NSWCA 445 State of NSW v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496 Uren v John Fairfax & Sons Pty Ltd [1996] HCA 40; (1996) 117 CLR 118 Varmedja v Varmedja [2008] NSWCA 177

PARTIES: Cara-Lee Elliott (Plaintiff) Peter Kotsopoulos (Defendant)

COUNSEL: Mr A Campbell (Plaintiff) There was no appearance for the defendant

SOLICITORS: Gerard Malouf & Partners (Plaintiff) The defendant was not represented by a solicitor

The plaintiff claims damages for the intentional torts of assault and battery committed upon her by the defendant on 9 June 2006. Following the entry of default judgment the proceedings were set down for the assessment of damages. The limiting provisions of the Civil Liability Act 2002 do not apply to the assessment of damages in this case: s 3B(1)(a). Common law principles therefore apply to the assessment of the plaintiff's entitlement to damages.

The plaintiff's statement of claim was filed on 16 March 2009. The statement of claim was served on the defendant on 8 April 2009. The plaintiff obtained default judgment on 26 May 2009. On 1 June 2009 the court notified the defendant of the date set for hearing, namely 30 June 2009. The defendant did not appear at the hearing and the matter proceeded to a hearing for the assessment of damages on 30 June and 1 July 2009. This judgment is delivered in the absence of a transcript of evidence.

A total of twelve claimed heads of damage required assessment. These are listed below together with paragraph references:

Head of Damage Paragraphs (a) General damages [39] - [41] (b) Interest on past general damages [42] - [43] (c) Past loss of earnings [44] - [48] (d) Interest on past loss of earnings [49] - [53] (e) Future loss of earning capacity [54] - [58] (f) Past loss of superannuation [59] (g) Future loss of superannuation [60] (h) Future treatment expenses [61] - [66] (i) Past out-of-pocket expenses [67] (j) Interest on past out-of-pocket expenses [68] (k) Exemplary damages [69] - [70] (l) Aggravated damages [71] - [73]

The plaintiff was born in 1982. She and the defendant are residents of Victoria. She completed her schooling and university entrance examinations in Victoria in 2000. She completed a tertiary diploma in business law and subsequently obtained employment as a legal clerk with a firm of solicitors for one year. She met the defendant in late 2003. In 2004 she was recruited to work as a senior law clerk with the Victorian Law Institute.

In 2004 she commenced living with the defendant in a de-facto relationship. In 2005 she left her employment with the Victorian Law Institute and pursued a three week period of employment with a large Melbourne law firm following which she determined that her future employment prospects lay in industry rather than in the legal profession. She was subsequently recruited and went to work for a large international recruitment agency, Hays Recruitment.

Before the occurrence of the events that are the subject of these proceedings the plaintiff was in good health and had a happy disposition. She was very confident, high spirited and had a bubbly outgoing personality. Since childhood the plaintiff occasionally did photographic modelling work and was obviously an attractive young woman with good social skills and employment prospects.

During the period when the plaintiff and the defendant were together in a de-facto relationship they lived and worked in Melbourne. The defendant operated a landscaping business. The plaintiff described the relationship as being fine in the beginning but later the defendant began to drink to excess, he started to stay out frequently and he began to exhibit nasty behaviour towards her. That relationship continued until late March 2006 when a pivotal incident occurred which led to the termination of their relationship.

The plaintiff described an incident that occurred whilst she was at home with the defendant one evening in late March 2006. The plaintiff was in bed asleep whilst the defendant was using her lap-top computer in an adjoining room. She awoke to the sound of the defendant speaking loudly whilst he was intoxicated and in an apparent state of frustration over the workings of the computer. She got out of bed, went into the next room and there she saw the defendant misusing her lap-top computer. She then approached the defendant and sought to take her computer away because she was concerned about it being used and damaged whilst it was in the vicinity of drinks the defendant had placed nearby.

The plaintiff described how, as she was walking from the room, the defendant kicked her very hard from behind in her lower back which caused her to be thrown forward, a distance of about four feet, into the corridor in front of her. She was aware of laying on the ground with the defendant standing over her. She said she lay there quietly without moving. At the time she was afraid that the defendant would kick her in the head.

The plaintiff described these circumstances as a life-changing event for her which ended the relationship between them. She said she then made arrangements for the defendant's possessions to be sent to his mother's home. He moved out and from that time they were separated in their relationship.

The plaintiff described how this first incident resulted in some bruising to her lower back. She described how, over the ensuing few weeks she started feeling the bruising and she began to experience respiratory problems. On 7 April 2006 an ambulance was called and she was taken to the Royal Melbourne Hospital for investigations. There, she was in initially x-rayed and then sent home but was later called back by the hospital after her x-rays had been re-read and it was realised that she had a traumatic pneumothorax.

The plaintiff's second presentation to the Royal Melbourne Hospital was on 8 April 2006. This resulted in three very painful procedures being performed upon her over the course of the ensuing five days. This resulted in the drainage and re-inflation of her collapsed lung.

During the course of her evidence the plaintiff's attention was taken to the hospital clinical notes concerning this hospital admission. Somehow, the defendant became aware of the plaintiff's admission to hospital. The hospital notes contained an entry that suggested the plaintiff's injury was caused by being pulled into a fence by her large dog which she had been walking. In her evidence in these proceedings the plaintiff explained that this version of events was incorrect and had been given in response to pressure applied to her by the presence of the defendant who came to the hospital and had expressed his concern over being arrested and charged over the events that led to her hospitalisation. She said she could not now remember whether she or the defendant gave that version of events.

I am satisfied that the plaintiff has given a truthful and accurate account of these events. I accept that in this first incident the plaintiff was callously assaulted by the defendant in a cowardly manner when he kicked her viciously and with substantial force from behind without any provocation from the plaintiff.

The evidence does not disclose the length of time the plaintiff took off work in respect of this incident.

In late April 2006 the plaintiff commenced her employment with Hays Recruitment. That employment later required her to attend a three day training seminar in Sydney between 6 and 8 June 2006 in connection with her work. The defendant became aware of the plaintiff's travel itinerary for that trip and followed her to Sydney.

The plaintiff described how during the course of dinner on the evening of 8 June she received a number of mobile phone text messages from the defendant asking for the opportunity to speak to her with the object of reconciliation of their relationship. Having gained the impression that the defendant was conducting himself reasonably she later acquiesced and allowed the defendant to visit her at the apartment hotel where she was staying and sharing a room with a work colleague, Miss Miller. She said this occurred in the late evening at about 11.00pm. She described how on this occasion the defendant seemed to initially interact normally with her and her work colleague but after a glass of wine and a few minutes of small talk his demeanour changed completely. She described him muttering, calling her names and walking around the apartment in circles. She said he then became violent and threw a glass at her, cutting her leg.

She said that she and her colleague then fled the room and locked themselves in an adjoining bedroom and waited for about 2 hours until they thought the defendant had left the premises. She was very scared by his erratic behaviour. She said she was convinced that the defendant had left the premises so she then opened the bedroom door with the intention of ringing the police only to find that the defendant was still there and was waiting for her. She said that what then followed was that the defendant grabbed her by the hair and dragged her around the room whilst she tried to get away from him.

She described how he chased her around the apartment and punched her hard in the face which resulted in the walls, ceiling and mirrors being covered with her blood. She described herself as screaming. She described her perception of her face feeling as if it had exploded. She was aware of one of her upper central incisor teeth hanging out of her mouth by a thread of tissue. She was aware that another tooth had become dislodged and her lower lip had been penetrated by her upper teeth, she was missing a chunk of flesh below her lower lip. She said her face was bleeding, swollen and she felt horrible. There were multiple full thickness facial, mouth and lip lacerations. She also had bruising and abrasions to the skull and her right knee was lacerated. The plaintiff described these events tearfully but without embellishment.

I accept the plaintiff's evidence describing the occurrence of this terrifying second incident.

The plaintiff wrapped her bleeding face in a towel, took a taxi and presented herself to the emergency department at St Vincent's Hospital in Sydney at about 1.30 am on 9 June. There she was attended to by a cosmetic surgeon who sutured the lacerations to her lower face. She was also provided with an emergency dental splint to hold her loosened remaining upper front teeth in place. She was then discharged from hospital at about lunch time on June 9 in order to enable her to travel back home to Melbourne. She found she was unable to speak on the day, which was influential in her not going to see the police about the incident whilst in Sydney.

The plaintiff consulted her general practitioner in Melbourne. She said she was in a great deal of pain. Her face was significantly swollen. Her upper lip was so swollen that the inside of her upper lip was in contact with the tip of her nose. She required Panadeine forte for strong pain relief. She said she required remedial dental surgery which included bone and skin grafts. She developed severe infections, abscesses and inflammations in her mouth and gums. She also required extensive remedial treatment from a dentist, a prosthodontist and an orthodontist. She was later provided with an additional and more aesthetic dental splint to hold her teeth in place. She could not eat solid food for a year. She had to eat mashed foods for fear of losing her teeth if she attempted to eat hard foods.

The plaintiff paid for her remedial dental treatment. She was recommended to have counselling for the emotional sequelae of her injuries but could not afford to do so. She described how the effect of her injuries required that she had to learn to speak in a different way and she had to try not to laugh so as not to expose the facial defect around her mouth and teeth. She said she sometimes covered her mouth with her hand out of embarrassment.

The photographs of the plaintiff's swollen and injured mouth and face that were taken in the days and weeks after her injury are indicative of severe facial trauma.

The plaintiff's mother has stated that the plaintiff is no longer a confident person and has lost her spirit. The plaintiff is no longer exuberant and has lost her get up and go. She is no longer a happy person and her personality has changed.

I accept the evidence of the plaintiff and her mother concerning the foregoing matters. I also accept the descriptions of the plaintiff's injuries, treatment and the residual effects of these injuries as described by the medical and allied examiners whose reports have been tendered in these proceedings.

The plaintiff has significant residual and disfiguring scarring to her face and lower lip which causes her stress and embarrassment. She said that for the first 6 months she was unable to bring herself to look into the mirror. She is very self-conscious of her cosmetic defect. She does not smile as readily and she avoids smiling. She avoids exposing her upper teeth and gums when laughing and talking. She has a dental implant and is in the process of arranging to have an artificial tooth cemented onto the post that has been implanted into her upper jaw. There is some evidence that the implant is in the process of being rejected which gives rise to the prospect that it may have to be replaced at some stage. Her remaining upper central incisor tooth is mobile. Her two maxillary central incisors have been permanently splinted together. Her left mandibular central incisor is undergoing necrosis and both of her lower incisors are chipped.

She has chronic pericoronitis of the mandibular third molars. She has anterior periodontitis of the gingiva of her maxillary incisors. These problems all combine to cause her significant loss of masticatory ability and efficiency.

The prognosis for her damaged maxillary central incisor tooth is poor and dental opinion is that she will probably lose this tooth over time. She obviously has a lot of remedial dental treatment ahead of her.

She stated that the front of her face is painful and this is exacerbated in cold weather conditions. She has lost feeling in the areas of her injured teeth and gums. Her lower lip feels numb and she has the sensation of drooling and feels embarrassed in front of clients. Testing has shown she has a 1cm area of paraesthesia and anaesthesia around the external scars on her lower lip. She has sustained damage to the seventh cranial or facial nerve. This has adversely affected her muscles of facial expression. She has been recommended to have an attempted repair of this facial nerve. Her embarrassment over her appearance has precluded any further involvement by her in sporadic photographic modelling activities in which she had participated since childhood.

She has lost confidence generally and has lost trust in men. She does not go out on dates and had not bothered with relationships. She has been adversely affected by her injuries in many ways. She is less outgoing than she used to be. She is largely housebound and is in a low mood. She is anxious. She fears losing her teeth. She has been damaged psychologically and suffers from a significant and persistent post-traumatic stress disorder. She does not feel very safe in Melbourne even though the Victoria Police have assisted her to obtain an intervention order prohibiting the defendant from approaching or harassing her. She is scared that the defendant will turn up and harm her. She is frightened of going out because she might encounter the defendant or his many friends. She has recurring nightmares and impaired sleep since the defendant assaulted her. Simple events trigger her bad memories of the events. She feels her life is out of control.

The assault of 8 June 2006 has had a profoundly debilitating effect on the plaintiff and most of the activities of her daily life have been adversely affected. A wide range of her activities have been restricted. I accept that the quality of her life and the enjoyment of life has been severely and significantly reduced and this will continue for some significant time into the future. She is only 27 years of age.

She is intending to pursue further cosmetic surgery on her facial scars and she plans to pursue psychological counselling that had been recommended to her for the post-traumatic stress disorder from which she undoubtedly suffers. All of the foregoing matters stem from the assault by the defendant on 8 June 2009.

Fortunately for the plaintiff she was able to keep her job with Hays Recruitment despite her initial concerns that she may lose her job. She said that she lost a total of 21 working days from her work with Hays as a result of her injuries and her need for treatment. She continued to work for Hays until mid-2007 when she changed her employment to work with an organization entitled People Bank. She said she changed her employment in the hope of reducing the pressure and stress of her work. She said she felt less able to cope with the stresses of her work whereas before the assault in question she had no such difficulty. She said she felt less confident which in turn affected her work.

Although her work with People Bank was less stressful than her former position she still had similar difficulties in her new position as an account manager. Her work with Hays and People Bank was account based and involved dealing with people effectively to earn commission income. She felt under excessive pressure that affected her ability to cope so in late 2008 she left that employment to work as a recruitment co-ordinator for Victoria Electricity. This position was an internal paid position where she was not required to obtain external commissions to maintain her income. Her expectations were that in this position she would be better able to cope, with her post-injury stresses. She said that she lost a total of some 40 working days away from her work with People Bank.

Her new employment also turned out to be stressful and she felt mounting emotional pressure that eventually came to a head in late March 2009. This led her to leave her work and take some time out of the workforce. She did so because she said she was not coping at work. She found she was crying a lot without apparent reason. She said she felt run down and exhausted, including emotional exhaustion.

I accept the plaintiff's evidence and the evidence within the expert reports tendered concerning her work difficulties and stresses which I find were directly due to the effects of the injuries inflicted upon her by the defendant on 8 June 2009. I find that the plaintiff would not have had the need for absences from work or felt the need to change her employment or leave her employment if she had not been assaulted by the defendant as she was on 8 June 2009.

I now turn to an assessment of the individual heads of damage claimed by the plaintiff.

The plaintiff suffers from physical complaints of ongoing facial pain and discomfort. She has had to alter her facial expressions and avoids smiling and laughing. Her choice of food is affected and limited. Her facial appearance has changed. She is significantly embarrassed and psychologically affected by post-traumatic stress disorder. Her personality has changed. She requires ongoing dental, nerve repair and cosmetic surgery. She will be cosmetically affected for life and her dentition will never be normal again. The face and mouth are the central focus for visual communication and she will continually encounter embarrassment in addition to pain and discomfort. In my view these matters call for a significant award of general damages for pain, suffering and loss of amenity of her life. These matters are unlikely to abate and she will have daily reminders of the terrible events that led to her disfigurement. This will occur when she looks in the mirror, applies make-up or lipstick, each time she eats and when she cleans her teeth. There is limited scope for palliative reduction of such daily reminders and the associated embarrassment and humiliation. These matters of cosmesis are relevant to the assessment of general damages. Del Ponte v Del Ponte [1987] 11 NSWLR 498 per Kirby P at 501 [D] - 502 [A].

The Plaintiff's counsel submits that the appropriate range for general damages in this case is between $100,000 and $150,000. Whilst that may be so I am obliged to temper and moderate my award of such damages in the light of my assessment of aggravated damages which are also compensatory in nature. Accordingly, I assess the plaintiff's entitlement to compensatory general damages in the sum of $120,000.

The above award makes no allowance for the assault that occurred in late March 2006 when the plaintiff was kicked in the back and later suffered a post-traumatic pneumothorax. That required surgical intervention. That matter was opened by the plaintiff's counsel but the plaintiff is precluded from claiming in respect of that event because that claim was not pleaded. If I were assessing general damages for that event I would have awarded an additional amount for general damages in the sum of $25,000.

I apportion 40 per cent of the plaintiff's general damages to the past, namely $48,000. I assess the plaintiff's entitlement interest on general damages of $48,000 at 2 per cent over 3.06 years between 8 June 2006 and 30 June 2009 in the sum of $2,937.

If I were apportioning past general damages for the first incident in respect of the kick to the back and the post-traumatic pneumothorax, I would assess 90 per cent of such damages to the past, namely $22,500. I would have then commensurately assessed interest on past general damages of $22,500 at 2 per cent over 3.24 years between 1 April 2006 and 30 June 2009 in the additional sum of $1,458.

There are three components to the claim for past loss of earnings.

The first component comprises 21 days loss of income in the employ of Hays Recruiting where the plaintiff was employed at an annual salary of $43,000 gross which I estimate from the published tax scales to be the equivalent of $630 per week or $126 per day net. I assess the first component of past loss of earnings in the sum of $2,646 net.

The second component comprises 40 days loss of income in the employ of People Bank where the plaintiff was employed at an annual salary of $55,000 gross which I estimate from the published tax scales to be the equivalent of $800 per week or $160 per day net. I assess the first component of past loss of earnings in the sum of $6,400 net.

The third component comprises 2 weeks loss of earnings from the end of March 2009 to the end of June 2009 at the gross annual rate of $60,000 which, after applying the published tax scales is revealed to be the equivalent of about $850 per week net. I assess the third component of past loss of earnings in the sum of $10,200.

The total of these three components is $19,246. Accordingly, I assess the plaintiff's entitlement to damages for past loss of earnings in the sum of $19,246.

The plaintiff is entitled to interest on her damages for past loss of earnings. There are three components to the calculation of interest in respect of such damages.

The first such component relates to the claim for the 21 days lost earnings in the net sum of $2,646 about mid-2007 to date, i.e. $2,646 at 3 per cent over 2 years, namely $158.

The second such component relates to the claim for the 40 days lost earnings in the net sum of $6,400 from about the end of 2008 to date, i.e. $6,400 at 3 per cent over 0.5 years, namely $96.

The third such component relates to the claim for three months lost earnings in the net sum of $10,200 from the end of March 2009 to date, i.e. $10,200 at 3 per cent over 0.25 years, namely $76.

The sum of these three calculations is $330. Accordingly, I assess the plaintiff's entitlement to interest on damages for past loss of earnings in the sum of $330.

The plaintiff is currently not working. I find that due to the assault on 8 June 2006 the plaintiff has acted reasonably in taking time off from work in March 2009 to seek to re-integrate herself without the added stress of work which I find has hitherto caused her a delayed recovery from the psychological effects of her injury. I find that the plaintiff's future loss of earning capacity has been significantly impaired by the impact of psychological factors that have been caused by the effects of her physical injuries sustained on 8 June 2009. These effects include the humiliation of the occurrence, the embarrassment at her appearance and the accumulation of resultant stress.

I therefore propose to allow damages for future loss of earning capacity in two component parts.

First, I assess the plaintiff's future loss of earning capacity in the coming 12 months in the net amount of $850 per week for the whole of the 12 month period. This yields the sum of $44,200. I consider that this loss, due to absence from work, will be reasonably incurred whilst the plaintiff attends to her psychological needs, including the need for intensive counselling and psychological recuperation generally. There is no indication that this sum should be discounted on account of vicissitudes. In my view the probability is that the plaintiff will also utilise this time off work to attend to her other treatment needs. This counter-balances any indication for discounting of such damages.

Secondly, I consider that over the remainder of her working life the plaintiff will have to take time off work for occasional dental treatment and for occasional follow-up or maintenance consultations with a psychologist or counsellor. The evidence is she has dental pathology and she will eventually lose a tooth which will require further prosthodontic and dental treatment that I find will probably cause her to take time from work. It is not possible to assess this avenue of future loss precisely. Doing the best I can to be fair to the plaintiff and not unfair to the defendant I assess an economic buffer on account of these latter factors in the sum of $5,000.

Accordingly, I assess the plaintiff's entitlement to damages for future loss of earning capacity in the sum of $49,200.

Consistent with my finding that the plaintiff has lost earnings in the sum of $19,246 net it is necessary to assess the value of the past loss of employer funded superannuation benefits. The convention is that in the absence of actuarial evidence of that loss, 11 per cent of the net sum awarded for past loss of earning capacity is taken to represent the loss for this head of damage. Accordingly, 11 per cent of $19,246 is the equivalent of $2,117. Accordingly, I assess the plaintiff's entitlement to damages for past loss of superannuation benefits in the sum of $2,117.

Consistent with my findings in respect of past employer funded superannuation losses it is necessary to assess the value of the loss to the plaintiff of future employer funded superannuation benefits, I apply a similar convention of 11 per cent of the net sum awarded for the fist period of damages assessed for future loss of earnings but not the added buffer. Accordingly, 11 per cent of $44,200 rather than $49,200 is the equivalent of $4,862 and I therefore assess the plaintiff's entitlement to damages for future loss of superannuation benefits in the sum of $4,862.

The plaintiff makes a claim for future treatment. I accept that her injuries occasioned on 8 June 2006 have given rise to a need for future treatment within a number of distinctly separate modalities. I find that the plaintiff's damages for future treatment expenses should include three components, the first being the completion of the recommended dental treatment, the second being an allowance for future revisionary cosmetic surgery and nerve repair surgery to try and alleviate the embarrassment the plaintiff experiences over her facial function and scarring, and thirdly, an allowance for ongoing psychological counselling.

The plaintiff has yet to complete her dental treatment which I find will comprise further bone grafting around the implant site, a further implanted crown and two porcelain faced teeth. The plaintiff's dentist has provided a letter estimating these remaining costs at $8,300. I allow that sum as being reasonable for the treatment of the plaintiff's ongoing dental impairments. I consider this amount to be modest especially as no claim is made for the likely cost of future treatment in the event of foreshadowed future tooth loss and other restorative dental work due to her facial injuries.

The plaintiff makes a claim for $5,500 for revisionary cosmetic surgery and nerve repair surgery for her facial scarring and lower lip numbness. I accept the oral surgeon's estimate of the likely cost of such procedures. I accept that it would be reasonable for the plaintiff to have these procedures as a result of her injuries and I allow the suggested sum of $5,500 to address this need. I do not discount this sum as I consider the plaintiff should have this treatment soon.

The plaintiff has been recommended to have ongoing psychological counselling at the rate of $200 per hour twice per week or $400 per week. The plaintiff is obviously severely affected by her psychological distress and post-traumatic stress disorder and this is obviously deeply ingrained. This was evident from the evidence of her mother whom I accept gave unembellished evidence concerning this aspect of the plaintiff's problems.

The plaintiff's psychological distress was also evident when she gave her evidence concerning her ongoing problems, at times tearfully. I consider that a reasonable allowance for such counselling treatment for this problem would be to allow for two sessions per week for a period of one year in the total sum of $20,800. I consider that one year will be required for this treatment because of the severe nature of her post-traumatic stress disorder, the delayed treatment of it to date due to her impecuniosity and because I consider that she has a better chance of successful treatment whilst she is away from the work environment. I infer this to be so from her own evidence as to her need to take time away from the workforce due to things building up and coming to a head psychologically, leading to her becoming mentally exhausted and run down.

The total of the foregoing allowances amounts to $34,600. Accordingly, I assess the plaintiff's entitlement to damages for future treatment in the sum of $34,600.

The plaintiff makes a claim for past out-of-pocket expenses in the sum of $23,770 of which the amount of $15,270 has been paid by the plaintiff during the course of the treatment on the various dates set out in the schedule of out-of-pocket-expenses within Exhibit "B". I accept that claim for out-of-pocket expenses with the exception of the sum of $794 referrable to the cost of ambulance transport on 7 April 2006 which counsel for the plaintiff acknowledges cannot be the subject of a claim on the present state of the pleadings. Accordingly, I assess the plaintiff's entitlement to damages for past-out-of-pocket-expenses in the sum of $22,976.

The plaintiff has paid for past out-of-pocket-expenses in the sum of $14,476 on varying dates from June 2006. I do not propose to undertake a precise attempt to calculate interest on such payments. Taking a broad approach, I allow interest at 3 per cent on $14,476 over 3.06 years and accordingly, I assess the plaintiff's entitlement to damages for interest on past-out-of-pocket-expenses in the sum of $1,328.

I consider that the conduct of the defendant, in dragging the plaintiff by the hair around the room and delivering such a damaging blow to the plaintiff's face, constituted egregious and deliberate conduct in contumelious disregard of the plaintiff's rights deserving of punitive censure : Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1. In assessing such damages I am conscious of the need to avoid double counting in assessing damages overall : State of NSW v Ibbett [2005] NSWCA 445 per Spigelman CJ at [83] - [89]. Accordingly, I assess the plaintiff's entitlement to exemplary damages in the sum of $30,000.

I also consider that the defendant's conduct in kicking the plaintiff in the back, on 7 April 2006, which caused the plaintiff a traumatic pneumothorax was also conduct in contumelious disregard of the plaintiff's rights. If I had been required to assess exemplary damages in respect of that event, bearing in mind the earlier stated principles, I would have assessed such further exemplary damages in the sum of $5,000.

I consider that the manner in which the defendant inflicted harm on the plaintiff by following her to Sydney, laying in wait for her in a pre-meditated manner, chasing her around the apartment, dragging her around by the hair, punching her in the face, all carried out in the presence of a work colleague was egregiously high-handed, humiliating and outrageous mal-behaviour well apart from ordinary human fallibility so as to justify an award of aggravated damages towards the higher end of the range : State of NSW v Riley [2003] NSWCA 208 per Hodgson JA at [131]. I am conscious of the need to temper an award of aggravated damages because they are also compensatory in nature and it is necessary to guard against double counting : State of NSW v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496 per Hodgson JA; Uren v John Fairfax & Sons Pty Ltd [1996] HCA 40; (1996) 117CLR 118 per Windeyer J at [3]. I am also mindful of the rider remarks by Tobias JA in Varmedja v Varmedja [2008] NSWCA 177 at [163] concerning the assessment of aggravated damages, however in this case I consider that a failure to award a separate sum for aggravated damages would be inappropriate because, unlike in Varmedja, the award for general damages in this case is not only for pain and suffering but also for cosmetic defects and psychological suffering. Although minds may differ on the assessment of an appropriate amount for aggravated damages, given the amount of the award for general damages I consider an appropriately tempered and moderate sum for aggravated damages in this case to be $25,000.

Accordingly, I assess the plaintiff's entitlement to aggravated damages in the sum of $25,000.

I also consider that the defendant's conduct in kicking the plaintiff in the back which caused the plaintiff to suffer a traumatic pneumothorax was also carried out in an aggravated and egregiously high-handed manner as contemplated by the earlier stated principles. If I had been required to assess exemplary damages in respect of that event I would have assessed such damages in the sum of $5,000.

My assessment of the plaintiff's damages is summarised as follows:

(a) General damages $120,000 (b) Interest on past general damages $2,937 (c) Past loss of earnings $19,246 (d) Interest on past loss of earnings $330 (e) Future loss of earning capacity $49,200 (f) Past loss of superannuation $2,117 (g) Future loss of superannuation $4,862 (h) Future treatment expenses $34,600 (i) Past out-of-pocket expenses $22,976 (j) Interest on past out-of-pocket expenses $1,3281 (k) Exemplary damages $30,000 (l) Aggravated damages $25,000 Total $324,549

I therefore assess the plaintiff's entitlement to damages for the events of 8 June 2006 and for the aftermath of those events in the sum of $324,549.

I make the following orders:- (a) Verdict and judgment for the plaintiff in the sum of $324,549; (b) Defendant to pay the plaintiff's costs; (c) Exhibits may be returned; (d) Liberty to apply on 7 days' notice if further orders are required.

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