Hopps v Domin8 Holdings Pty Ltd Meche Staffing Services Pty Ltd [2012] ACTSC 165

Supreme Court of the ACT|2012-10-22|Before: Sidis AJ

1. Judgment for the plaintiff against the first and third defendants jointly and severally in the sum of $99,870.92.

2. The defendants are to pay the plaintiff's costs as assessed in the sum of $32,171.22.

1. In this matter, the plaintiff claimed that in the early hours of 23 May 2009 she was assaulted by a security guard on licensed premises operated by the first and third defendants under the name ICBM in Northbourne Avenue, Canberra, in the Australian Capital Territory.

3. In the absence of appearance or the filing of any defence, default judgment was entered against the remaining defendants on 27 June 2012 for damages, costs and interest to be assessed. The parties were notified by the Registrar on 14 September 2012 that the matter was to be listed before the court today. The defendants were called at 11 am, the listing time, three times and there was no appearance on their part. In the absence of any communication with the court by the first or third defendants, I acceded to the plaintiff's request to proceed with an assessment of her claim.

4. In so doing, I referred to the amended originating claim filed on 14 May 2012, the plaintiff's statement of particulars filed on 8 May 2012, the plaintiff's affidavit sworn 17 October 2012, the affidavit of the plaintiff's solicitor sworn on 22 October 2012, and the plaintiff's schedule of damages.

5. At the time of the incident, the plaintiff was 39 years old. She is now 42. She claimed injury to her left wrist in the nature of a fracture, bruising to her left elbow and arm, an injury to her ear, and shock. The fractured left wrist was treated surgically with open reduction and internal fixation on 27 May 2009. The fracture was fixed by means of a locking plate and screws. The arm was fixed in plaster for five weeks. On removal of the plaster the arm was weak, with loss of bulk. The plaintiff said she suffered pain and restriction of range of movement and her lifting capacity was reduced. She was treated with physiotherapy.

6. The plaintiff claimed ongoing consequences of the injury included scarring to her left wrist as depicted in a photograph, exhibit SH13 to her affidavit. She also complained of occasional acute pain and weakness in the left wrist on lifting heavy objects, aching in her left wrist and pain in cold weather.

7. The plaintiff claimed an exacerbation of an anxiety condition from which she suffered prior to this incident. She claimed the result was that her dose of anti-depressant medication was increased.

8. Medical support in respect of the wrist injury was provided by Dr Endrey-Walder in a report dated 6 August 2011, exibit SH14. Dr Endrey-Walder noted that the plaintiff suffered no loss of strength in her left arm or restriction of range of movement in her wrist. He also noted that she continued more than two years after the accident to suffer from episodes of acute sharp pain. He was also concerned that, long-term, the plaintiff's symptoms might increase with the onset of osteoarthritic changes in the radiocarpal component of the left wrist. He suggested that the plaintiff might benefit from orthopaedic review on the question of whether the plate and screws should be removed.

9. Against this background, I assessed the plaintiff's damages. She claimed $60,000 - $90,000 by way of general damages. I considered that an award of $75,000 would be adequate to compensate her for pain and suffering at the time of the injury and during the recovery period for scarring, for the relatively mild ongoing symptoms from which she now suffers and the prospects of increased symptoms in the future. Interest on one half of that sum was allowed at 2% in the sum of $2,550.

10. I was satisfied that the plaintiff's claim for income loss was reasonable. On that head I therefore awarded $4,338.77 as claimed, inclusive of superannuation and interest.

11. The plaintiff claimed future income loss for three weeks for the period following surgery to remove the plate and screws. I did not allow this claim in full for two reasons. Firstly there was no medical evidence to establish this procedure would in fact be required. At this stage it was possible only. The second reason was that I considered the three weeks claimed income loss resulting from what will be a minor procedure to be excessive. I allowed $1,000 against what, at this stage, was a contingency only that the plate and screws might be removed.

12. Past out-of-pocket expenses were allowed as claimed in the sum of $632.15. Future out-of-pocket expenses were also discounted to allow for a possibility only of future surgery. On this head I allowed $3,000.

13. I was not satisfied that the injury generated any reasonable requirement for ongoing domestic assistance, having regard to the minimal ongoing symptoms from which the plaintiff currently suffered. I allowed on this head, for past domestic assistance, seven hours a week for eight weeks as claimed in the sum of $1,400, and three hours a week for a further 26 weeks in the sum of $1,950.

14. I modified the claim for future assistance to cover the significant possibility that the plaintiff's symptoms will increase with the onset of post-traumatic osteoarthritis and for the future I allowed the sum of $10,000.

15. The total of these awards was $99,870.92, comprising: general damages $75,000; interest on general damages $2,550; past income $4,338.77; future income $1,000; past out-of-pocket expenses $632.15; future out-of-pocket expenses $3,000; past domestic care $3,350; future domestic care $10,000.

16. The plaintiff claimed costs and disbursements as set out in the affidavit of her solicitor in the sum of $27,500 for professional costs and $4,671.22 for disbursements. I considered that claim to be reasonable and it was allowed.

1. Judgment for the plaintiff against the first and third defendants jointly and severally in the sum of $99,870.92.

2. The defendants are to pay the plaintiff's costs as assessed in the sum of $32,171.22.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Acting Justice Sidis

There was no appearance for the first and third defendants

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Judgment (22 paragraphs)

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