Graves v West

Judgment

1. On 21 May 2011, the defendant, Richard Ashley West, punched the plaintiff, James John Graves, in the face during a rugby union game at Manly Oval in Sydney. That violence was inflicted well "off the ball." Having done so, the defendant left the playing field and indeed the sports ground. The plaintiff fell to the ground and was incapable of playing further. As a result of that violence, the plaintiff suffered serious injuries to his face, mouth and jaw. He has never played rugby again.
2. On 19 December 2011 in the Local Court at Manly, the defendant pleaded guilty to, and was convicted of, recklessly causing grievous bodily harm to the plaintiff. The learned Magistrate placed him on a two year good behaviour bond. Shortly afterwards, the defendant left Australia, and has not returned.
3. On 23 December 2011, the plaintiff commenced proceedings in the District Court for damages arising from the assault. Those proceedings were subsequently transferred to this Court.
4. On 24 May 2013, proceeding ex parte, Davies J entered summary judgment for the plaintiff, pursuant to r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW): see Graves v West [2013] NSWSC 641.
5. Liability having been determined by his Honour, the final issue requiring resolution by me is the assessment of damages. A threshold issue determined
6. There was no appearance for the defendant in the proceedings before me. Once that was established, counsel for the plaintiff submitted that I should proceed ex parte.
7. The absence of the defendant on the day upon which the matter was listed for hearing was not unexpected. As I have said, he had not appeared to resist the entry of a verdict against him on 24 May 2013. On that date, Davies J had made an order permitting substituted service upon the defendant. In a nutshell, his Honour ordered that service could be taken to be effected if documents were forwarded to the defendant via particular email and Linked-In "In-Mail" addresses.
8. In an affidavit affirmed on 17 September 2014 and read before me on the threshold question, the solicitor for the plaintiff, Mr Matthew Henderson, deposed that service of documents reflecting each and every forensic step taken by the plaintiff had been effected in compliance with the order of Davies J.
9. An affidavit of the defendant of 26 August 2014, which had seemingly been transmitted by him to the solicitor for the plaintiff on the same date, was also placed before me by counsel for the plaintiff. That was done in support of the application to proceed ex parte. Counsel made it clear that he was reading it on that interlocutory question only. In that affidavit, the defendant responded to various aspects of the plaintiff's case. Counsel for the plaintiff submitted that the affidavit thereby demonstrated that substituted service had indeed been effective in bringing the proceedings to the attention of the defendant.
10. In all of those circumstances, I determined that it was appropriate for the matter to proceed ex parte, and delivered a very brief separate judgment to that effect.
11. Counsel for the plaintiff accepted that, in light of the fact that the proceedings were ex parte, he had a special responsibility of candour, as well as a responsibility to bring to my attention legal and evidential matters that could be adverse to his submissions.
12. Having determined the threshold question of whether or not to proceed ex parte, I proceeded to disregard the affidavit of the defendant. That was because, although it seems that it was filed, no one appeared at the hearing, and it was not read by any party in the substantive proceedings before me. Review of evidence
13. The evidence that was placed before me on behalf of the plaintiff on the question of damages was as follows: an affidavit of the plaintiff dated 21 August 2014 which annexed a number of documents; an affidavit of William Robert Seabourne dated 8 May 2014; an affidavit of Lara Elizabeth Graves dated 12 May 2014; a schedule of the plaintiff's medical costs and treatment as at 21 August 2014; receipts for medical treatment and out of pocket expenses; a series of reports by treating doctors and retained medical experts; and the plaintiff's treatment file from Royal North Shore Hospital.
14. As well as that, I received oral evidence from the plaintiff during the hearing, and was able to observe for myself the current state of his face from the Bench.
15. I proceed to set out the matters of which I am satisfied on the balance of probabilities on the basis of that evidence. I do so first with regard to events between the time of the assault and the hearing, and secondly with regard to the state of affairs that pertained at the latter time. Chronology of events and treatment
16. The plaintiff was born on 7 December 1985, and accordingly on 21 May 2011 he was aged 25 years. For several years before that date he had worked as a commercial property manager. He enjoyed a happy childhood and adolescence in Willoughby on Sydney's lower North Shore. He completed two degrees at University before leaving Australia to travel as a backpacker. He returned in late 2010.
17. The plaintiff had played rugby union since the age of five. The game was a source of enjoyment for him, and many of his closest friendships were formed during his association with the North Sydney Rugby Union Club.
18. On 21 May 2011, the plaintiff was playing fourth grade rugby for North Sydney against the Manly Marlins at Manly Oval.
19. Midway through the second half, at approximately 12 midday, the plaintiff was punched from behind by the defendant. As I have said, both players were well away from the ball. The plaintiff fell to the ground, and was knocked unconscious. An ambulance was called.
20. The assault was witnessed by a number of spectators, including William Seabourne, a friend of the plaintiff. In his affidavit of 8 May 2014, Mr Seabourne noted that he saw the defendant head towards the grandstand immediately after the incident and collect his belongings, before leaving the oval altogether.
21. Shortly after the assault, the plaintiff was taken by ambulance to the Emergency Department at Royal North Shore Hospital. It was clear that the plaintiff had suffered a broken jaw as a result of the punch.
22. The following day, 22 May 2011, an operation was performed by Dr Hassal, plastic and reconstructive surgeon, to insert several mini-screws and elastics. That was done in order to stabilise the plaintiff's jaw and to wire it shut. The plaintiff was released from hospital the following day.
23. On 27 May 2011, the plaintiff was readmitted to hospital in acute pain due to an exposed nerve. In the weeks thereafter, although at home again, he suffered from significant facial swelling and bruising. He was forced to consume food through a straw, thereby resulting in a loss of approximately 10 kilograms in bodyweight.
24. On 3 June 2011, the plaintiff consulted Dr Neale, dentist, with regard to possible treatment options, including the potential for root canal therapy and the need for crowns on several of his teeth as a result of the assault.
25. On 6 July 2011, the plaintiff attended the rooms of Dr Todes, specialist periodontist, for an initial consultation and computed tomography (CT) scan. Dr Todes advised the plaintiff that his treatment plan would likely involve the removal of several teeth, as well as socket preservation and implant placement.
26. A series of dental procedures then followed. On 22 July 2011, the plaintiff's upper right canine tooth was surgically removed by Dr Todes under local anaesthetic. On 26 August 2011, the plaintiff received an adhesive tooth restoration from Dr Neale.
27. Quite apart from treatment for his dental problems, the plaintiff saw Mr O'Brien, psychologist, on 6 September 2011. That consultation was supplemented by two further visits on 19 September 2011 and 10 October 2011. At the time of consultation, Mr O'Brien diagnosed the plaintiff as suffering from Post-Traumatic Stress Disorder (PTSD). Mr O'Brien expressed the opinion that the plaintiff was experiencing intrusive symptoms associated with the assault, including recurrent dreams and intense psychological distress from the media coverage and subsequent public exposure associated with what had occurred.
28. As well as that, Mr O'Brien observed that the plaintiff "persistently avoided all stimuli associated with the assault", and had developed "negative alterations in cognitions and mood". Those symptoms were further complicated by additional circumstances such as pain, uncertainty with regard to employability, and financial difficulties.
29. On 31 October 2011, the plaintiff returned to Dr Todes to receive a temporary restorative implant on the healed site of his removed upper right canine.
30. On 5 December 2011, the plaintiff consulted Dr Wills, dentist, with regard to the provision of a temporary acrylic partial denture to replace his missing upper right canine.
31. On 22 March 2012, Dr Wills fitted the plaintiff with a custom-made implant and crown. The insertion of the implant was extremely painful for the plaintiff and he was unable to consume food for several days thereafter. The restorative phase of the implant process was completed by Dr Wills on 12 April 2012.
32. In December 2012, the plaintiff moved to Brazil to undertake a Masters of Business Administration. On 29 April 2013, he began to experience intense pain in the upper right side of his mouth. He attended the surgery of Dr Peixoto in Sao Paulo, and was diagnosed with an inflammation of the pulp of the lower left third molar. Dr Peixoto referred the plaintiff to an endodontist, Dr Filho, whose diagnosis confirmed the presence of an acute infection caused by lack of blood supply.
33. In May 2013, still in Brazil, the plaintiff underwent root canal therapy in order to alleviate the symptoms of the infection, and to prevent future outbreaks of decay-causing bacteria.
34. Quite apart from those most noteworthy treatments, I accept the evidence of the plaintiff in the witness box that, since the assault, he had attended dental specialists "on around 40" occasions.
35. Finally, the plaintiff had two weeks off work due to his injuries and treatment, though all of them were covered by sick leave. During that time, he was cared for by his sister, Ms Lara Graves, without charge. The current condition and prognosis of the defendant
36. It can be seen from the above précis that the single punch inflicted by the defendant caused, quite apart from a broken jaw, serious dental injuries, significant pain, and psychological problems.
37. With respect to his current dental condition, the plaintiff gave evidence both in the witness box and by way of affidavit. He continues to experience altered sensation in his mouth, including numbness in his gums and surrounding teeth, as well as a permanent sensation that a foreign object is stuck inside his mouth. Furthermore, I was asked by his counsel to observe from the Bench that the plaintiff has a slightly sunken right cheekbone; I must say that I believe that I was able to see it, but it is extremely slight.
38. With respect to the state of his teeth in the future, counsel for the plaintiff relied upon two reports prepared by Dr Ironside, prosthodontist. In a report of 11 October 2012, Dr Ironside expressed the opinion that nine of the plaintiff's teeth have a "reasonable probability" of being at risk of infection and replacement. He stated that, should an individual tooth be lost, it would cost $8,500 to replace in today's terms. However, it was noted that, should the plaintiff require reconstructive bone therapy and associated prosthodontics, as a result of an infection at an old fracture site in the jaw or around an implant, "the cost could in fact be in the order of $20,000 per event".
39. In a report of 29 July 2014, Dr Ironside further expressed the opinion that the crown on the plaintiff's implant "might need replacement in about 20 years" due to wear and tear. Assuming that the plaintiff's teeth are subjected to no further trauma, "the cost to replace the crown itself in today's terms would be of the order of $3,200".
40. In similar terms, Dr Wills, in a report of 28 August 2012, expressed the opinion that a complete loss of all of the teeth in the affected region is possible (although unlikely). An implant-supported bridge would then be provided, requiring the provision of two more implant fixtures and a sinus graft to provide adequate bone for implantation.
41. It can be seen that each of the latter two reports is speaking of possibilities, not certainties or even probabilities.
42. Indeed, in a report of 5 September 2011, Dr Neale expressed the opinion that "the success rates for dental implants can be well over 95%". She went on to note that: Success rates are dependent on a number of factors including medical history, smoking history as well as numerous dental factors including the amount and type of bone present…and importantly maintenance of good oral hygiene practices to minimise plaque build up around the dental implant to prevent future bone loss and gingival inflammation or loss of gum tissue around the implant.
43. As things stand, the plaintiff requires no further dental treatment above the usual, save for annual periodontal consultation, at a cost (in today's money) of $114.00 per year.
44. In the witness box, the plaintiff impressed me as an intelligent, mature, level-headed young man. He does not, of course, smoke. I am confident that, having suffered these injuries to his jaw and mouth, he will take great care of his teeth for the rest of his life.
45. In short, if the plaintiff maintains good oral hygiene by way of regular maintenance at home and attendance on dental experts, the likelihood of his teeth needing to be removed or replaced in the future must be seen as quite low. I therefore regard his future dental prognosis as very positive.
46. The same may be said of his psychological prognosis. I say that for the following reasons.
47. On 7 August 2014, the plaintiff saw Dr Enrico Parmegiani, forensic psychologist. In a report of 20 August 2014, Dr Parmegiani expressed the opinion that: Mr Graves has experienced an almost complete resolution of Post-Traumatic Stress Disorder, which resulted from his exposure to the assault on 21 May 2011. I expect that his condition will improve further and remain stable after completion of the current legal proceedings. In this respect his long-term prognosis should be seen as excellent, especially in view of a number of positive prognostic factors, including his past absence of psychiatric illness, his young age and good medical health, and his demonstrated degree of resourcefulness and psychological resilience.
48. Dr Parmegiani further expressed the opinion that "the residual symptoms of mild anxiety regarding the legal proceedings were not sufficient criteria for a formal psychiatric diagnosis". Whilst acknowledging that there is a distinct possibility that the plaintiff could experience further episodes of PTSD if he were exposed to events such as severe physical assaults or involvement in motor vehicle accidents, Dr Parmegiani regarded the plaintiff's future psychiatric prognosis as "most optimistic".
49. In short, the psychological problems of the plaintiff have very largely abated. Again, that is soundly consistent with the impression that he made on me in the witness box. Although it is true that the plaintiff retains a psychological vulnerability that could play a role were he to suffer a serious trauma in the future, again I assess the chance of that occurring as being quite low. Applicable law
50. The question of which, if any, statutes applied to the question of damages was not free from complication.
51. Counsel for the plaintiff submitted that the Civil Liability Act 2002 (NSW) (the Act) had very limited application to these proceedings pursuant to s 3B. That section relevantly provides: 3B Civil liability excluded from Act (1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows: (a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person - the whole Act except: (i) section 15B and section 18(1) (in its application to damages for any loss of the kind referred to in section 18(1)(c)), and (ii) Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death, and (iii) Part 2A (Special provisions for offenders in custody), … [Emphasis added.]
52. I consider that the combined effect of the plea of guilty of the defendant to recklessly causing grievous bodily harm, the judgment of Davies J, the documentary evidence of the plaintiff and his friend Mr Seabourne, and the extensive injuries themselves, establishes well beyond the balance of probabilities that the act causing injury (the punch to the face) was an intentional tort committed with an intent on the part of the defendant to cause injury to the plaintiff. It follows that s 3B applies, with the result that the Act does not apply, except for the enumerated sections and Parts.
53. Turning to those, it can be seen that Part 7 and Part 2A can have no application to the facts of this case.
54. Nor can s 18(1)(c) of the Act. That is because the plaintiff has not made a claim for loss on his part with regard to his capacity to provide gratuitous domestic services to others. For the same reason, s 15B of the Act has no application either.
55. It follows that, pursuant to s 3B, no provision of the Act applies, and the claim is to be determined in accordance with the common law of damages. Heads of damage
56. It is convenient now to turn to each of the heads of damage upon which the plaintiff relied. For clarity I shall first set out each head that counsel informed me by the end of the hearing was not pressed. With regard to each head that was pressed, I shall set out the monetary claim that counsel for the plaintiff made; a brief summary of the basis for that claim; the applicable legal principles; and my determination. It is also the case that the plaintiff claimed interest on damages up until the date of judgment. Accordingly, I shall provide a calculation of that sum with regard to any applicable head of damage. Heads of damage that were not pressed
57. As I have said, the plaintiff did not claim for loss of capacity on his part to provide domestic services to others.
58. By the end of the hearing, the plaintiff had also abandoned his claim for past economic loss and past loss of superannuation. That was because, although (as one would expect) he had spent some time away from work as a result of his injuries and treatment, the availability to him of sick leave meant that he suffered no financial loss as a result. General damages
59. The plaintiff claimed $100,000 for general damages. In short, counsel for the plaintiff submitted that the pain, psychological injury, permanent issues with teeth, gums and mouth, and disfigurement, all inflicted by the defendant upon the plaintiff, were very substantial, thereby resulting in a very significant loss of enjoyment and amenity of life.
60. Under common law principles, general damages are "at large". Counsel for the plaintiff invited my attention to what was said by Fullagar J with regard to the nature of general damages in Paff v Speed [1961] HCA 14; 105 CLR 549 at 559: "General damages" on the other hand, are, of their very nature, incapable of mathematical calculation, and (although the expression is apt to be misleading) commonly very much "at large". They are at large in the sense that a jury has, in serious cases, a wide discretion in assessing them. Also general damages may be assessed not with reference to any limited period, but with reference to an indefinite future. Damages may be awarded for "pain and suffering", and such damages are assessable for past, present and future pain and suffering. But here calculation is obviously impossible, and damages for pain and suffering should clearly be regarded as "general" and not "special" damages. In fact, the question of general damages is generally, I think, put to a jury under three heads - (1) "economic loss", (2) loss of "amenities" or "enjoyment of life", and (3) pain and suffering.
61. Counsel for the plaintiff noted that "economic loss" is no longer commonly dealt with as a part of general damages, but submitted that, nevertheless, the passage remains a correct statement of the general principles requiring consideration by me.
62. Counsel submitted that I should take into account every episode of pain, discomfort or emotional trauma that arose from the injury, as well as the ongoing physical discomfort and anxiety experienced by the plaintiff. Furthermore, he submitted that I should take into account the pain and suffering that may result from future surgeries, or future episodes of PTSD. Finally, he submitted that I should take into account the fact that the plaintiff has, in his own words, "lost Rugby". He submitted that the plaintiff should be compensated for the loss of something from which he, in the past, derived great pleasure and conviviality.
63. Turning to my determination, I found the plaintiff to be thoroughly credible in the witness box. To the extent that he did not claim that every procedure to which he was subject was very painful, that supported his credibility about the ones that were.
64. I accept that the plaintiff suffered serious physical injuries. They were inflicted publicly and in the course of an activity that the plaintiff loved and has since been denied. The plaintiff was also subjected to the indignity of publicity about the matter, including about the fact that the plaintiff had not left what occurred on the rugby field there, but rather pursued it in the courts. The physical injuries occasioned to him a great deal of pain and discomfort, and the inconvenience and interruption of repeated treatment. Speaking generally, one can accept that people have an aversion to and fear of dental procedures, and the plaintiff is no exception. He also has a permanent distracting sensation with regard to his mouth, along with a very slight deformation of his appearance.
65. Separately, the plaintiff suffered a not insignificant psychological injury that led him to suffer from PTSD and repeated intrusive panic attacks. Quite apart from that, he no doubt suffered for a time from a very real concern about the prognosis for his teeth. As one would expect, his libido suffered for a time as well.
66. Having said that, the plaintiff impressed me as a resilient person physically and psychologically. I think it very unlikely that he will suffer physical or emotional sequalae in the future.
67. I respectfully accept the submission of counsel for the plaintiff that there must be a substantial sum for general damages. I assess that sum at $75,000.
68. Turning to interest on that sum, I consider that general damages should be apportioned as follows. Two thirds of them ($50,000) will relate to the period up until judgment, and one third ($25,000) to the future. It is appropriate that the plaintiff have interest at a rate of 2% from the date of the punch until today's date on the sum of $50,000. That results in an amount of $3,865. Past out-of-pocket expenses
69. The plaintiff claimed $17,973.21 for past out-of-pocket expenses. The claim was based on the detailed "Schedule of Costs and Treatment as at 21 August 2014". I accept that the plaintiff has established on the balance of probabilities that he incurred all of those expenses as a result of the intentional tort committed against him. This head of damages leads to an award of $17,973.21 as claimed.
70. Turning to interest on that sum, the expenses of the plaintiff have been incurred over quite some time, commencing on the day of the tort and extending for some years. The rate of interest on that amount, calculated by way of reference to an average of the relevant rates of interest, and applying the established division of that rate, should be $2,640. Past gratuitous assistance
71. In supplementary written submissions, counsel for the plaintiff clarified that a claim for $1,360 for past gratuitous domestic assistance provided by the plaintiff's sister whilst he was off work and incapacitated by his injuries was maintained. It was said the affidavit of Ms Lara Graves shows the appropriateness of that claim.
72. Turning to applicable principle, it is well established that a very common consequence of traumatic injury is that the injured person may require additional assistance with regard to the activities of daily life. Such services are frequently provided by family members without charge. In Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161, the High Court held that the cost of services provided gratuitously may be recovered as personal injury damages.
73. Damages for such gratuitous assistance are assessed by reference to the cost of having that service provided commercially: Van Gervan v Fenton [1992] HCA 54; 175 CLR 327 at 331 (Mason CJ, Toohey and McHugh JJ). In other words, the correct measure of damages is the objective market monetary value of the services, not the actual income foregone by the provider of the services.
74. A comprehensive description of "services" in this context was provided by Kirby J in In Hodges v Frost [1984] FCA 99; 53 ALR 373 at 380-381, where his Honour said: (1) The services must be reasonably necessary… That is, they must go beyond the mere rearrangement of domestic chores or the tender attention to comfort that can be expected in an affectionate environment. (2) The services must be such that, but for the gratuitous and benevolent activities, it would have been necessary to secure assistance at a cost…(3) Where gratuitous services have been given, it must be considered whether they should be discounted so that they do not amount to a windfall for the wrongdoer. The plaintiff is not relieved from the general obligation to mitigate loss and to avoid unnecessary costs and extravagance. In some cases of minor residual injuries, sensible re-arrangements in the home will be reasonably expected and will relieve the wrongdoer from liability. …
75. Turning to my determination, the plaintiff has established on the balance of probabilities that the services provided by his sister were appropriate, and that they became necessary because of the assault. He has also satisfied me that the sum claimed represents what they would have cost if they had been provided commercially. Accordingly, I award $1,360 as claimed.
76. Turning to interest on that sum, I consider that that should be approached in the same way as general damages (although the interest rate has not been halved to take account of the accruing effect of the loss). Accordingly, I award $104 in interest. Aggravated damages
77. The plaintiff claimed $50,000 for aggravated damages. That was said to be appropriate to address the additional insult, embarrassment and humiliation (above and beyond the tort and its inherent consequences) that he has suffered. The claim was made on three bases.
78. First, the incident occurred in front of a number of spectators, including friends of the plaintiff.
79. Secondly, the incident attracted some media interest: see the articles annexed to the affidavit of the plaintiff dated 21 August 2014. That affidavit also contained evidence that the plaintiff found the media interest very intrusive and painful.
80. The third basis was said to be the adverse consequences that the plaintiff has experienced as a result of his decision to bring legal proceedings. In his affidavit of 21 August 2014, the plaintiff deposed at [37]-[38]: In addition, I feel as if I am "that guy" who took an on-field incident off-field by pursuing matters through the Courts.…There is a certain negative stigma that goes with the territory of someone who seeks a legal resolution to something which happens on the field. Some groups of people have outcast me for it.…
81. Counsel for the plaintiff submitted that, in the circumstances of this case, aggravated damages were appropriate to vindicate the fact that his right to remain free from physical interference or assault had been disregarded by the defendant, with grave consequences.
82. Turning to principle, aggravated damages "fix upon the circumstances and manner of the wrongdoing of the defendant", and are awarded to compensate the plaintiff for injury resulting from "the circumstances and manner of the wrongdoing": see State of New South Wales v Ibbett [2006] HCA 57; 229 CLR 638 at 31; Uren v John Fairfax & Sons Pty Ltd [1996] HCA 40; 117 CLR 118 at 129-30.
83. Turning to my determination, there is force in all that counsel for the plaintiff has said in support of this head. On the other hand, one may query whether being assaulted in a public place is any better or worse than being subjected to the same violence in a private or domestic setting, and in which witnesses and friends and medical help are not available. I also accept that the plaintiff has found the publicity intrusive, and has suffered from the thought that others may wrongly think less of him merely because he has sought to enforce his legal rights.
84. Nevertheless, to be clear, I have taken all of those factors into account in my assessment of general damages. It follows that there will be no separate award under the head of aggravated damages. Exemplary damages
85. The plaintiff claimed $50,000 for exemplary damages. He submitted that that would be appropriate in order to punish the defendant for his anti-social behaviour, and to deter him from committing similar conduct again.
86. The principles upon which exemplary damages are awarded are well known. Exemplary damages are denunciatory or punitive in character, and are concerned primarily with the conduct of the defendant. In order for such an award to be made, the defendant's conduct must amount to or exhibit "a conscious and contumelious disregard for the plaintiff's rights": see Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; 117 CLR 118 at 129 (Taylor J); Xl Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; 155 CLR 448 at 471 (Brennan J).
87. With respect to the issue of "double punishment", counsel for the plaintiff noted that a conviction had been recorded against the defendant, and he had been sentenced to a good behaviour bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). He accepted that that punishment imposed by the criminal justice system militated against an award of exemplary damages. However, he submitted that, because the defendant left Australia soon after the bond was imposed, that punishment could not have had more than a negligible effect on the defendant, and would certainly not have the deterrent effect of an award of exemplary damages.
88. Again, there is force in what counsel for the plaintiff has said. To state things succinctly, the plaintiff was punched very forcefully to the face well off the ball in a rugby game. I consider that community attitudes to unlawful violence in sports, even sports that are themselves inherently violent, have changed over the last several decades, and such behaviour is the subject of firmer disapproval than it was in the past.
89. It is also true that the good behaviour bond did not impose any practical punishment, in the sense of restricting the liberty of the defendant. To be weighed against that is my assessment of the fact that the defendant bears a conviction for a serious offence of violence that may have an ongoing effect upon his life, in particular with regard to employment, international travel and residence, and whether he will be assessed as a person of good character generally in the future.
90. In State of New South Wales v Delly [2007] NSWCA 303, it was said by Basten JA at [117] that "the fact that an award of exemplary damages constitutes an expression of the Court's disapproval of the conduct does not mean that the Court's disapproval is a sufficient reason to make an award". In the same case, Ipp JA said at [27] that an award of $10,000 for exemplary damages "is at the highest end of the spectrum".
91. Having reflected on the matter, including the fact that I did not have the benefit of a contradictor with regard to this question, I accept the submission of counsel for the plaintiff that there should be an award of exemplary damages. I respectfully reject the proposition that it should be in the sum of $50,000 or anything approaching it. I award $4,000 for this head of damages. It is not appropriate that there be an award of interest on that sum. Future economic loss and future loss of superannuation
92. The plaintiff claimed $150,000 as a "buffer" for future economic loss, and $20,500 for future loss of superannuation (the latter amount calculated on the basis of a rate of 13%).
93. Counsel for the plaintiff acknowledged that the physical and emotional trauma suffered by the plaintiff do not currently prevent him from working. The head of damage was claimed as against the possibility that they may do so in the future. He invited my attention to evidence of the possibility of recurrence of dental and psychological problems as support for the proposition that this was a case where there was the potential for the plaintiff to suffer some economic loss in the future as a result of his injuries, and it was therefore appropriate to award a buffer.
94. Turning to my determination, I consider that the likelihood of the plaintiff losing earnings in the future as a result of his vulnerability to a further episode of PTSD, or his vulnerability to dental and jaw problems, is very low. The fact is that he has managed his psychological problems very well and they are receding, albeit not fully resolved. The medical reports to which I was taken spoke of some further act of violence or something like a car accident as a precipitating future event that could make things worse. I regard the chance of either event occurring as quite low. I also assess him as being very likely to maintain his dental health, both by way of taking good care of his teeth himself, and also by way of regular check-ups.
95. Finally, because of his qualifications, I think that he will remain employed in professional positions in which substantial sick leave is available to him.
96. In short, the current condition of the plaintiff, his prognosis, and my favourable assessment of his personality and his mode of life do not argue in favour of an award under this head. Having said that, in light of his age, and the possibility of problems in the future, I think it appropriate to allow, by way of a buffer, the sum of $30,000 for future economic loss. Future out-of-pocket expenses
97. The plaintiff claimed $115,500 for future out-of-pocket expenses. That amount is the sum of a number of discrete expenses that were claimed: Ongoing periodontal consultations $10,000 Possible surgery if infection manifests $20,000 Teeth at risk of replacement $76,500 Possible need for new crowns $9,000
98. The plaintiff submitted that the $10,000 allowance for ongoing periodontal consultations was calculated on the basis of yearly consultations. The claim for $20,000 was based upon the evidence of Dr Ironside that I have summarised at [38]. The $76,500 allowance for teeth at risk of replacement was calculated on the basis of nine teeth being replaced, at a cost of $8,500 each. The $9,000 founded upon the possible need for new crowns was calculated on the basis that the crowns will need to be replaced every 20 years or so.
99. As for periodontal treatment, I agree that he will be required to see a specialist once a year, in light of the severity of the injuries inflicted and the need to maintain the current successful state of affairs. Accordingly, taking into account his medium life expectancy and the relevant multiplier from the well-known Furzer Crestani Handbook, and applying the resultant figure to the annual expenditure that I have already indicated, I award $3,142 for future periodontal treatment.
100. As for the other claims, as I have explained the evidence is that the treatment has been a success, and there is every reason to believe that it will remain a success. I do not propose to proceed on the basis that possibilities that may arise will in fact arise. As I have sought to show in my analysis of the expert evidence tendered on behalf of the plaintiff, I think that the possibility of things going wrong in a marked way, and requiring expensive and invasive treatment, is really quite low.
101. Having said that, again I think that it is appropriate to proceed by way of a modest buffer, as against that possibility. I therefore allow a further $30,000 for future out of pocket expenses, giving a total of $33,142. Summary of determinations
102. Most, but not all, of the heads of damage for which counsel for the plaintiff contended have been made out. With regard to some of them, although I have accepted his submission that there should be an award, I respectfully consider that sums substantially smaller than those proposed by counsel are appropriate.
103. My determination may be summarised as follows: General damages $78,865 Past out of pocket expenses $20,613.21 Past gratuitous assistance $1,464 Exemplary damages $4,000 Future economic loss and future loss of superannuation $30,000 Future out of pocket expenses $33,142 TOTAL $168,084.21
104. Finally, it is appropriate that the defendant pay the costs of the plaintiff of the proceedings before me. Orders
105. Accordingly, I make the following orders: 1. Judgment for the plaintiff against the defendant in the sum of $168,084.21. 2. The defendant must pay the costs of the plaintiff of the proceedings relating to the determination of damages.

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