Jeleskovic v Wagner

Determination

1. The defendant conceded that the plaintiff had suffered back pain and tingling (or 'pins and needles') in his fingers, but submitted that it was not shown that this injury (or disabilities) was (or were) current. Reference was made to the lack of recent medical evidence served on the plaintiff's behalf.
2. The plaintiff did not ultimately submit what injuries or disabilities he said he had suffered as a result of the fall.
3. I find that as a result of his fall, the plaintiff suffered a relatively brief soft tissue injury to his neck and shoulders. The fall exacerbated pre-existing degenerative issues in his neck. The incident contributed to some numbness in his right hand which, to some extent, continues to this day.
4. I am not satisfied that, looking forward, there is any further treatment that is suitable or available for the plaintiff or that he would wish to receive such treatment.
5. I am not satisfied that the fall exacerbated the plaintiff's pre-existing PTSD, although I find that it exacerbated, to some degree, his existing sense of depression. In my view, the fall down the stairs was simply part of, the deterioration in the plaintiff's relationship with the defendant which had commenced before the subject incident. To some degree, I consider that the circumstances underlying the fall have added to his depression.

DAMAGES

1. The plaintiff's claim for damages assumed that it would be determined by the common law and not by Part 2 of the Civil Liability Act.
2. In his Schedule of Damages supplied to the Court during the trial, the plaintiff made the following claims: 1. Economic loss (past and future): $57,200. 2. Pecuniary loss: $90,000. 3. General damages: $120,000.
3. The claim for damages for pecuniary loss embraced multiple components: past and future out of pocket expenses; past domestic assistance and future domestic assistance.
4. He also sought aggravated damages (for $20,000) and exemplary damages (for $15,000).

Out of pocket expenses

1. The plaintiff's Schedule of Damages handed up during the trial itemised, as a species of 'pecuniary loss', operations and treatment provided by Medicare (item 9), but only foreshadowed Medicare rebate notification. Such notification was not forthcoming by the time the plaintiff closed his case and made his final submissions.
2. The defendant simply submitted that it was for the plaintiff to quantify his past of pocket expenses and he had not done so.
3. I accept that some expenses must have been incurred; especially associated with the plaintiff's hospitalisation and treatment in the second half of 2016. However, I accept the submission by the defendant that no attempt was made to quantify the extent to which the plaintiff was left out of pocket. Whilst Courts strive to compensate for injuries caused by proven wrongful conduct, sometimes on an ill-informed basis, they are not geared to engage in guesswork where claimants do not assist themselves by furnishing proof they can be expected to provide. I cannot, in the circumstances, make allowance for this claim.
4. In relation to future out of pocket expenses (item 10) there was a claim for operations and treatment likely to be provided. But Counsel for the plaintiff accepted that there was no evidence as to what such future treatment might involve or proof of the plaintiff's intention to receive it.
5. No allowance is made for future out of pocket expenses.

Past and future working capacity

1. Asked by his Counsel (and by me) what was, or were, the nature of his restrictions since his accident, the plaintiff emphasised his inability to play music. He had previously played a range of instruments: guitar, piano, flute, trumpet and trombone. He could not play the piano now.
2. Some evidence (Exhibit C) was put before the Court indicating some of the 'gigs' or performances that the plaintiff's orchestral group had played prior to the subject incident. That evidence indicated ticketed prices for the events but said nothing about what, if any, takings that the plaintiff and/or his band or orchestra received through the performances.
3. The defendant said in her evidence that on 2 July 2016, less than a month since the subject incident, the plaintiff had played guitar in a duet at the opening of her gallery to celebrate it.
4. Under cross-examination, it was put to the plaintiff that, contrary to what he said in his evidence in chief, he had in fact been able to play guitar. A photocopy of a YouTube image taken in April 2017 (Exhibit 1) revealed that he had played the guitar (whilst performing vocals) as part of a small group. It was suggested to him that he had also played guitar at a festival in December 2017, as well as at the Django Bar Camelot lounge in July 2016. The plaintiff did not recall these other instances of his playing guitar; but he did concede that he had played guitar "two or three times" since the subject incident. He accepted that he received payment for his performances, albeit that these were for modest sums (which he did not quantify). He also accepted that he had been able to continue performing as a composer.
5. In re-examination, the plaintiff distinguished his capacity to play classical music with his guitar, which required direct contact of his fingers on the strings, with his more general capacity to play the instrument (apparently to perform more 'popular' music) with the aid of a plectrum. When he did play, the plaintiff felt that it was not of the same quality as before the incident. He clarified, also, that it was not possible for him to reverse his position when playing guitar (as I understood it, left-handed) so that he was principally using his left hand to string whilst using the right hand to hold the neck of the guitar.
6. It also emerged that in recent years, the plaintiff has prepared a book, to make money. He had tried, unsuccessfully so far, to get a publisher and hopes to obtain some monetary benefit from his exertions.
7. The plaintiff also acknowledged that he was in receipt of a disability pension. He indicated that he could only work up to 8 hours before he was subject to a requirement to notify Centrelink.
8. Prior to the subject incident, he worked a four-hour block assisting in a retirement village. He had doubled the time he worked there following the incident. But the plaintiff said that he was not working there now, for reasons which were not explained - nothing was said, in particular, as to whether this was attributable to the incident.
9. In his schedule of damages, it was said that the plaintiff's earnings at the date of the incident were $3,000-4,000 per annum.
10. At the conclusion of his re-examination (on day 3 of a case slated to run for 2 days), the plaintiff's Counsel unsuccessfully sought leave to adduce further evidence of his loss of earning capacity. The application was justified on the basis of technological difficulties attending the 'Virtual Courtroom' setting of the trial. But it was the position that some evidence of restriction in the plaintiff's working capacity was adduced; it was just not enough for the plaintiff's liking. The technological difficulties did not contribute to the omission to put forward in his evidence in chief the plaintiff's (testimonial) case on earning capacity. The plaintiff's application was objected to by Counsel for the defendant as an attempt to split the plaintiff's evidence in circumstances where his cross-examination was predicated upon the evidence of chief as it had been presented to that point. The plaintiff's Counsel indicated to me that he did not intend to tender documents showing loss of earnings, but rather viva voce evidence from the plaintiff as to what he earned before and after an incident occurring in June 2016. I declined the application having regard to the circumstances, including the low probative value of the plaintiff's evidence in this regard, the inadequacy of the explanation for the evidence not being raised earlier in his evidence in chief, the prejudice to the defendant (which might have wanted to have conduct investigations independently) and the evident need for further cross-examination and consequential delay in a case which had already overrun the agreed estimate (not that the last consideration was decisive against the application).

Submissions

1. The defendant submitted that the plaintiff adduced no evidence to quantify past loss of earnings; or proof of how much the plaintiff had the capacity to earn prior to the incident in comparison with his capacity after his fall. It was not for the Court to undertake this exercise. The defendant appeared to accept that he had a reduced physical capacity to play his guitar, in the sense of what he would like to play for commercial purposes, but no evidence was adduced about the economic impact of any restriction in that regard.
2. The fact was, the defendant said, that the evidence indicated that the plaintiff was able to continue playing his guitar. There was no further curtailment of his earning from his composition activities and no credit was given for the prospect that the plaintiff may make some financial return on a book of musical scores that he had composed.
3. The plaintiff acknowledged that there was little or no quantification of past loss of earning capacity, but submitted that some allowance should be made because the plaintiff was not, in combination with his band, able to play the style of music that he or it wished to play.

Determination

1. I am not required to determine a claim for loss of earnings, but a loss of earning capacity. Actual loss of earnings is probative of the loss of capacity [15] but is not decisive proof of the lost, or reduced, capacity. But the loss of earning capacity must be productive of economic loss [16] . It is necessary, in short, for the plaintiff to prove both (a) the capacity that has been lost and (b) what economic consequences would probably flow from that loss: Husher v Husher (1999) 197 CLR 143 at [7]-[8].
2. The plaintiff's evidence about restrictions upon capacity to play is generally supported by Ms Golski.
3. I would be prepared to accept that the plaintiff had some physical difficulty or hindrance in his capacity to play classical guitar music in the manner that he was accustomed to playing prior to the incident occurring. The physical restriction however should not be exaggerated. The last medical report before the Court - Dr Murambi's report of 9 November 2017 - suggested that the plaintiff had reported to him that the pain from his neck injury had gone, that he rarely got some mild numbness in his fingers but that was not bothering him too much. In the absence of further evidence nearly two and a half years down the track, I would not infer that the frequency or intensity of the feeling of numbness has worsened, or is likely to worsen in the future.
4. My difficulty is in assessing to what extent, if at all, this physical restriction has impeded his capacity to earn; and, if it has, assessing the economic consequences. In his statement of particulars (as amended) the plaintiff asserted that he had engaged in 4 or 5 concerts per year, earning up to $4,000. That was not, however, the subject of evidence from him (such as diary entries or bank statements). I was not given any information to indicate the regularity with which he played or composed classical guitar as distinct from the more 'popular' form; nor information which differentiated the proportions of his guitar playing in which he was playing his classical music and popular music before and after the incident. Theoretically, the plaintiff's great love might have been playing classical music on his guitar, but the Court has no evidence to indicate how much more remunerative his classical guitar playing may be in comparison to the more popular form of guitar playing which has not been hindered by his fall. Put another way, if, as appears, the plaintiff does have a capacity to earn, say, by playing 'popular' guitar, for which (for all the Court knows) there may be greater public demand, but refrains from doing so because of his preference to playing classical guitar, which may have less public demand, it is difficult to say he has suffered a loss of earning capacity; or that such loss has any economic consequences for him.
5. In so saying, I am mindful that I am required to consider not only the physical effects of disability on playing but also the mental restrictions upon the plaintiff in being able to earn income from playing caused by his inability to playing the type of music he wants at the standard he would wish to play at. At the point when the incident occurred, the psychologist, Ms Stark noted the plaintiff's depression and anger 'reflecting his lack of satisfactory employment' and his low self-esteem. This would have substantially inhibited his capacity to earn even before the subject incident.
6. I am conscious of the basic principle that mere difficulty in estimating damages does not relieve a court from the responsibility from estimating them as best as it can. However, the Court does expect a claimant, who has selected a cause of action where damage is said to be the gist of the action, and who carries the onus of proof, to provide some evidence upon which a rational assessment of value can be made [17] . There was no suggestion that he was incapable of doing so.
7. But I find probative Ms Stark's reference, as at June 2016, that his employment situation was precarious. Whilst in receipt of the disability pension (by which, I was told, he was not able to work more than 8 hours a week), his musical performances were, at best, spasmodic. There was no record of takings prior to the incident in comparison to what occurred after the incident.
8. In relation to the period from the incident to trial, he has not demonstrated the economic consequences of his reduced physical capacity.
9. As to the future, if there had been some quantification of income, I might have been inclined to award a buffer sum [18] . But the evidentiary foundation is too thin to admit such allowance even on that basis.

Domestic Assistance

1. The plaintiff gave no evidence that would enable the Court to compare the extent to which he could perform domestic activities before and after the incident; nor evidence of any likely requirement for domestic assistance in the future.
2. I make no allowance for past or future domestic assistance.

Non-economic loss

1. The defendant accepted that the plaintiff had lost amenity in the sense of being restricted in what he said he could play on the guitar and, further, had suffered pain and suffering by reason of the fall. However, she submitted that these detriments did not meet the threshold requirements for non-economic loss contained in s 16 of the Civil Liability Act.
2. The plaintiff submitted that I should not only take into account the matters acknowledged by the defendant. There was evidence, also, of his sense of withdrawal and the mental consequences upon his restrictions in playing his guitar which needed to be factored into account.
3. Neither party put before the Court any material to indicate past cases that guide the Court's assessment of how the injuries and disabilities of which the plaintiff suffered fall within the scale of a most extreme case (per s 17A of the Civil Liability Act).
4. I find that the plaintiff endured pain and suffering associated with his physical injury after the fall. This was of relatively short duration in the sense of pain, but the fall would have led to a not insubstantial amount of stress and anxiety as to the treatments that he would receive and, especially, the effects upon his capacity to play as a musician and composer.
5. Notwithstanding my difficulties in ascribing any loss in earning capacity, I am satisfied that there has been a not insubstantial loss of amenity in the plaintiff's physical restrictions in playing classical guitar. I find that playing music to the standard and in the manner that the plaintiff was accustomed to playing prior to the incident was a balm to the mental difficulties that he has faced through his life. That has been adversely affected by his fall. Further, I consider that the fall also accentuated a pre-existing state of depression; which has been manifested by a sense of social withdrawal.
6. I also take into account, in this context, that the plaintiff must have felt some indignation in being pushed.
7. I would have found that the plaintiff had attained a level of 16% of a most extreme case. That equates to an allowance of $9,870.

Claims for aggravated and exemplary damages

1. Where the claim for damages for personal injury caused by a defendant's negligence is regulated by Part 2 of the Civil Liability Act, there is no recovery allowed for these heads of damages: s 21. In this regard, the reference to negligence means a failure to exercise reasonable care and skill (however the action is framed) [19] . As I have indicated, no claim was brought for damages caused by trespass to the person.
2. If I am wrong in finding that the action for damages is regulated by the Civil Liability Act but is instead governed by the (unmodified) common law, I propose to consider the claim. However, it needs to be adjudicated in accordance with how the claim was raised.
3. The rules of court require that claims for aggravated damages and exemplary damages be particularised (rr 15.7 and 15.8 of the Uniform Civil Procedure Rules). There was no reference, at least by name, to either head of damages in the pleading or the Statement of Particulars (as amended). Nevertheless, there was (at page 4 - the numbering was obscure) in the Statement of Particulars (as amended) an assertion that the plaintiff had suffered 'humiliation and embarrassment' arising out of certain enumerated actions of the defendant being: the failure to offer comfort or assistance whilst he was injured on the ground; the failure to admit any wrongdoing in having pushed the plaintiff down the stairs; not apologising to the plaintiff for pushing him down the stairs; and that the plaintiff's post-operative scars on his neck and spine serve as a reminder to the plaintiff of the events and are a recurring humiliation to the plaintiff.
4. In my view, although not identified as such, these may be treated as particulars of a claim for aggravated damages, which are generally intended to compensate a plaintiff for injured feelings and humiliation [20] .
5. However, there is an additional difficulty for the plaintiff by reason of the preponderant view in the authorities that aggravated damages are not available in an action for negligence [21] , at least where there was no concurrent liability for trespass to the person (such as a battery). An abiding concern in allowing such an award is to prevent double compensation: an allowance for injured feelings may slide into the order for general damages. However, as noted more than once in these reasons, the plaintiff did not plead the distinct action for trespass to the person; which has several potential defences which could have been raised by the defendant in answer to such action. I do not consider that it would be procedurally fair to the defendant to consider that because aggravated damages may have been available had the action in battery been run, they are available in the action exclusively pleaded in negligence based upon the same conduct by the defendant.
6. Accordingly, even if the common law applied (not modified by the Civil Liability Act) and even if I was to accept the plaintiff's version of how he fell, on the basis of his pleading, confined as it was to the action in negligence, as a matter of law, I consider that I would not be permitted to award aggravated damages for the action pleaded by the plaintiff.
7. In case I am again wrong, and the law would permit such claim to be brought, I propose to say something on the merits of this claim, as it has been particularised. By his Counsel's final submissions, the plaintiff only referred to the circumstance that the defendant delayed 15 minutes from the time of the plaintiff's fall to the time she rang the ambulance. This was consistent with the first of the particulars for this claim. The contention was based upon the plaintiff's evidence.
8. I am not persuaded that there was a period of delay of this length even if I accepted the plaintiff's account of the circumstances in which he fell. The defendant gave evidence, at different times, that the delay was 2-3 minutes or 5 minutes. I seriously doubt whether either the plaintiff or defendant paid any attention to time at the point where the incident occurred. But even if it the period was as long as the plaintiff said it was, I do not consider that period to be inordinate, having regard to the period of time that would naturally be taken by the defendant not only to assess what the plaintiff required, but also to recover her own composure after the altercation that had occurred not long before the fall. Further, it is plain from the audio recording of what she said to the ambulance, that the defendant did offer comfort and assistance to the defendant. Ms Golski testified that the defendant had told her that she had hoped that the plaintiff would be okay. It was she who instigated his being taken to the hospital. Further, she gave unchallenged evidence of attending the hospital the next morning in anticipation that she might see the plaintiff. That did not occur (because of the plaintiff's wishes), but she left a plate of sandwiches for him.
9. As to the other particulars for a claim for aggravated damages, it is true that the defendant did not admit or apologise for pushing the plaintiff down the stairs. I have already factored in to the assessment of non-economic loss the consideration of the plaintiff's injured feelings from being pushed; although I accept that there is a substantial qualitative difference between pushed in the back down a set of steps and being pushed in a 'front on' fashion. But I am not sure that a failure of a wrongdoer (in negligence, where the factual predicate is inadvertent harm) to admit or apologize for the conduct that gives rise to the liability can sound in aggravated damages. Otherwise, every inadvertent conduct giving rise to an action in negligence may result in an award of aggravated damages if a defendant disputes liability. Finally, as to the last of the matters stated in the Statement of Particulars to found this claim, bodily disfigurement (as in scars), the plaintiff said nothing about this in his evidence.
10. In the circumstances, even on the various hypotheses I have considered, I would not have awarded aggravated damages.
11. No separate submission was made by the plaintiff about the claim advanced for exemplary damages. I do not consider that I can fairly address this claim in circumstances where, in addition to the absence of any pleading of such claim, no particulars of this head of damage were supplied (either in form or in substance) in advance of the trial.

CONTRIBUTORY NEGLIGENCE

1. It is also unnecessary to consider this point in view of my findings. Neither party referred to this defence in their submissions.
2. If I am wrong, however, in earlier findings, I note that there was a contradiction between the defendant's pleaded case of contributory negligence - that the plaintiff failed to hold on to the rail - with the evidence that she gave to the police that, on the way down, the plaintiff did in fact grab the railing. The defence would have failed on the facts.
3. There would have been no reduction in damages for contributory negligence.

ORDERS

1. I order that there be a Verdict and Judgment for the defendant with the plaintiff to pay the defendant's costs.
2. I grant liberty to apply to the parties within 14 days if there be any application to vary the order for costs.
3. Exhibits may be returned after 28 days.

Endnotes

1. Williams v Milotin (1957) 97 CLR 465.
2. Which was curiously verified by the defendant's solicitor, rather than the defendant herself, contrary to the requirements of r 14.23 of the Uniform Civil Procedure Rules 2005 (NSW).
3. Croucher v Cachia [2016] NSWCA 132 per Leeming JA at [33]; Dean v Phung [2012] NSWCA 223 per Basten JA at [10].
4. Her Honour ultimately dissented in the result, but not in relation to this statement of principle.
5. Presidential Security Services of Australia Pty Ltd v Brilley (2008) 73 NSWLR 241 at [162].
6. Croucher v Cachia at [40] & [89].
7. Crimes Act 1900 (NSW), s 59.
8. ASIC v Hellicar (2014) 247 CLR 345 per Heydon J at [255].
9. Palmer v Dolman [2005] NSWCA 361 at [41]; also Westbus Pty Ltd (Administrators Appointed) v Ishak [2006] NSWCA 198 at [20].
10. The observation was cited with approval, in the context of s 140, in Palmer v Dolman, at [47].
11. D'Orta-Ekenaike v Victoria Legal Aid (2005) 233 CLR 1 per McHugh J at [101].
12. Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 per McHugh J at [78]; Perre v Apand Pty Ltd (1999) 198 CLR 180 at [114]-[117].
13. Sullivan v Moody (2001) 207 CLR 562 at [55].
14. New South Wales v Ibbett (2006) 229 CLR 638 at [18].
15. Paff v Speed (1961) 105 CLR 549 at [566].
16. Graham v Baker (1961) 106 CLR 340.
17. See the summary of principles where there is difficulty in valuing loss of earning capacity in McCrohon v Harith [2010] NSWCA 67 at [118]-[126].
18. Dunbar v Brown [2004] NSWCA 103.
19. State of NSW v Ibbett (2005) 65 NSWLR 168 at [118] per Ipp JA; at [200]-[210] per Basten JA; Croucher v Cachia [2016] NSWCA 132 at [35] per Leeming JA.
20. Lamb v Cotogno (1987) 164 CLR 1 at [8].
21. Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268 at [110] per Mason P (Stein JA and Heydon JA agreeing). 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: 22 April 2020