Hernandez Ibarzabal v Chavez Soto

Parties: Dr Jose Alberto Hernandez Ibarzabal (Plaintiff)
Edgar Fabian Chavez Soto (Defendant)

Representation: Plaintiff (self-represented)
Defendant (self-represented)

File Number(s): 2024/462507

Publication restriction: None

JUDGMENT

Introduction

1. These are proceedings for assault and battery, arising out of an assault which occurred at 19 Roseby Street in Drummoyne. The plaintiff seeks damages, including aggravated damages. Initially, he also sought exemplary damages, but this claim was not ultimately pressed.

2. As the claim is in respect of intentional torts, the Civil Liability Act 2002 (NSW) (“CLA”) does not apply: see s 3B(1)(a).

Background

3. Both parties were self-represented on the first day of the hearing. When the defendant’s application for leave to file a crossclaim was rejected by me, the defendant indicated to the Court that he was abandoning his defence and left the courtroom. Consequently, I stood the matter over to the following day to allow the plaintiff time to collect his thoughts, and to give the defendant an opportunity to reconsider his position. I indicated to the plaintiff that, in the absence of the defendant on the following day, I would proceed to hear his matter as if it was an assessment of damages.

4. On the following morning, I had the defendant’s name called three times in the environs of the Court, in the traditional manner, and there was no appearance before the Court. Accordingly, I proceeded to conduct that matter as an assessment of damages.

The Assaults

5. The plaintiff and the defendant obviously had a history of acrimonious relations. This bad blood had necessitated applications for, and the granting of, Apprehended Violence Orders. The source of the acrimony did not emerge in the evidence.

6. On 21 April 2022 at about 12:30 in the afternoon, the plaintiff arrived at Birkenhead Point shopping centre in Roseby Street, Drummoyne. At about 2:45pm, the plaintiff was waiting outside the shopping centre for a rideshare vehicle to pick him up. He was then confronted by the defendant, who spat in his face, insulted him, and kicked him in the groin. The defendant then rummaged through the plaintiff’s bag of grocery shopping and located a five-litre container of water which he threw towards the plaintiff. Thankfully, there was no contact.

7. The plaintiff then crossed the street to avoid the defendant, who kept chasing him and insulting him for a second time. The defendant then caught up with the plaintiff, grabbing him by the hair, repeatedly punching him with a closed fist, and kicking him in the face and head. This caused multiple facial lacerations and significant bruising. It seems that the defendant grabbed the plaintiff by the hair with such force that he pulled hair from his scalp.

8. During what seems to have been these savage assaults and batteries, the defendant insulted and mocked the plaintiff in the Spanish language making, amongst other things, homophobic slurs.

9. The plaintiff led evidence of the following injuries suffered in the assault.

Laceration and Scarring

10. The plaintiff was conveyed to Royal Prince Alfred Hospital (“RPAH”) by ambulance. On presentation he had significant facial swelling, in addition to a significant laceration on his nose and cheek. While the lacerations to the plaintiff’s face have, to a considerable extent, healed, he is still to some extent suffering a degree of facial disfigurement, including mild soft tissue standing which is palpable as a bridge under his right eye. He also suffers facial scarring, hair loss, and patches of baldness. Dr Jonathan Coldwell, in a certificate of 28 July 2022, stated that:

“[C]oncerned re stranding tissue right lateral periorbital region, likely due to trauma and subsequent inflammation. Uncertain prognosis but has not yet resolved”.

11. Discharge records from RPAH dated 21 April 2022 states “obvious swelling to R maxilla, laceration to bridge and right maxilla”.

12. Dr Christopher Quirk, in his report of 2 July 2023, stated:

“The scarring is quite visible and I believe after this time it will be permanent but I’m hopeful that it will get some improvement. Firstly by using the Bepanthen scar treatment gel every day for only a short period, 30 seconds to a minute massaged firmly”.

13. I accept that the plaintiff has established this residual laceration and scarring.

Cervical Spine Injury

14. The RPAH discharge records indicate that the plaintiff’s cervical spine was tender on palpation. Dr Coldwell’s medical certificate of 25 May 2022 states that the plaintiff suffers “chronic neck pain with Radiculopathy to bilateral arms in a C6 distribution”.

15. In or about July 2022, the plaintiff suffered what he described as a “flareup” in Radiculopathy. An MRI on the plaintiff’s cervical spine conducted on 28 September 2023 states:

“C5-6 … a small posterior disc bulge … At C6-7 a mild disc protrusion … small disc herniations.”

16. I accept that this injury has been established.

Olfactory Nerve Injury

17. The plaintiff gave evidence that, following his assault, he lost his sense of smell and partially lost his sense of taste. He says that these conditions have alleviated some extent, but he still has a reduced sense of smell and taste. I do not allow the plaintiff’s claim in respect of olfactory nerve injury as there was no evidence that such injury was causally linked to the assault.

Dental Lower Jaw Injury:

18. The plaintiff consulted Dr Michael Darveniza, a prosthodontist who referred him to Dr Kathleen Berger for periodontal treatment.

19. The plaintiff submitted he had difficulty sleeping on his right side due to a punch to his right cheekbone. He stated that, as a result, he experienced the following:

– Canine teeth ground down through grinding at night

– Deviation of lower jaw to the right of 1-2mm

– The punch caused lower jaw to be pushed to one side resulting in displaced disc

Pain and Suffering:

20. The plaintiff gave evidence of experiencing emotional harm and pain following the assault. He is concerned about scarring of his face, his loss of hair, along with Radiculopathy. As I have indicated, he has established the loss referred to above with the exception of what he asserts to be the loss of his sense of smell and taste. He is entitled to an award of general damages.

Out-of-Pocket Expenses:

21. The plaintiff initially sought such damages but ultimately did not press the claim.

Future Economic Loss

22. The plaintiff did not press his case for future economic loss. He did make a claim for future out of pocket expenses but ultimately did not press this other than in respect of a dental and periodontist ongoing treatment plan. This the plaintiff costed at $20,000. At the end of the day, however, there was no proof of future out of pocket expenses in that sum, and as such I would disallow that claim.

23. As I have indicated, the plaintiff’s evidence concerning dental treatment was insufficient to ground his claim for future out of pocket expenses. His treating prosthodontist did refer him to Dr Bourke for periodontal treatment but ultimately the plaintiff did not see her. Rather, he travelled to Mexico for treatment.

24. There was no evidence as to the cost of the treatment which he received in Mexico.

25. There was evidence, however, of occlusal treatment which the plaintiff received from Dr Darveniza on 13 December 2023 and 10 April 2024. Some of that treatment seems to have been provided and paid for.

26. In the circumstances of the plaintiff being self-represented, I would therefore allow damages for occlusal treatment, as either past or future out of pocket expenses.

27. I would allow damages for past and future out of pocket expenses in respect of dental care at $6,240: see plaintiff’s affidavit of 26 June 2025 at [98].

Domestic Assistance/Diminution in Earning Capacity

28. The plaintiff ultimately did not claim domestic assistance or future lack of earning capacity.

Aggravated Damages

29. As I earlier indicated, the plaintiff initially claimed aggravated and exemplary damages. Ultimately, the claim for exemplary damages was not pressed. The particulars of aggravated damages are particularised in the following terms.

30. The plaintiff’s harm, loss and damage were increased by:

“1. Humiliation, threats, robbery and assault in the street,

2. Being frightened of the defendant assaulting him again, and

3. Being fearful and humiliated that at any time somebody could drive or walk past and look at him covered in blood and feel terrified in the street and feeling terrified in the street.”

31. I do not believe the plaintiff has made out a case for aggravated damages and, to the extent to which the general damages which I will award include damages for the assault, those damages will include what the plaintiff claims by way of aggravated damages.

Compensation as a Victim of Crime

32. The plaintiff informed me that he had received $5,000 by way of statutory compensation, pursuant to the provisions of the Victims Rights and Support Act 2013 (NSW). This sum must be taken into account.

Conclusion

33. I would award the plaintiff $50,000 by way of general damages from which $5,000 is to be deducted on account of the $5,000 Victims of Crime payment.

34. I would also award the plaintiff the sum of $6,240 on account of the cost of dental treatment past and future.

Orders

1. Judgment and verdict for the plaintiff against the defendant in the sum of $51,240.
2. Interest thereon at the rates pertaining from time to time pursuant to the provision of s 100 of the Civil Procedure Act 2005 (NSW).
3. That the defendant pays the plaintiff’s costs.

**********