Knight v State of New South Wales

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 HIS HONOUR: The plaintiff, Austin Owen Knight, claims damages arising out of personal injuries suffered in an incident which took place in the early hours of the morning on 1 January 1990. On that occasion he was assaulted by a police officer. The State of New South Wales is sued as being vicariously liable for the actions of that police officer (Law Reform (Vicarious Liability) Act 1983 - s8(1)). 2 The trial has proceeded in two phases. Liability was heard before Master Malpass who delivered judgment on 30 November 2001. The effect of the Master's judgment was to find the defendant vicariously liable for the actions of the police in assaulting the plaintiff. That finding of assault also established the claim in negligence. The Master's finding as to liability was upheld by the Court of Appeal (State of NSW v Knight [2002] NSWCA 392). 3 In the course of upholding the appeal, the Court of Appeal rejected the suggestion that if the defendant was vicariously liable for the assault on the plaintiff it could not also be liable in negligence. The Court referred to the substantial overlay which exists between the two causes of action (judgment at [16], Williams v Milotin (1957) 97 CLR 465). 4 The second phase of the trial proceeded as an assessment of damages. It commenced on 17 August and concluded on 19 August 2004. The only oral evidence was that of the plaintiff. Otherwise the matter proceeded on the basis of medical reports and other documents such as school reports, academic results and job applications. The defendant tendered videos taken of the plaintiff on 5, 12, 13 and 14 August 2004. 5 There was no dispute as to the injuries sustained by the plaintiff. The real issue was the effect of those injuries, in particular their effect on his employability, and whether those injuries gave rise to a need for care/assistance in the future. There was also an important but subsidiary issue as to whether exemplary and aggravated damages could be awarded against the defendant in the circumstances of this case.

Factual background Injuries and disabilities 6 The plaintiff suffered a closed head injury, which has been described as a blunt injury to the skull. The injury has been characterised as severe. A CT scan and a later MRI scan confirmed the presence of multiple (bi-lateral) intra-cerebral haematomata and bruising in the left temporo-parietal region. 7 He suffered facial injury, including several fractured teeth, a laceration to the lower lip, a laceration to the chin and an injury to the left zygoma. In evidence the plaintiff pointed to facial scarring which he said caused him some embarrassment. Whereas that scarring may well have been prominent in the past, as of the date of trial it was obvious only on close examination. 8 Although a fracture of the skull was suggested in some of the early medical material, that diagnosis was never confirmed. There was bleeding from the mouth and the right ear. Mostly, however, the injuries were to the left side of the head. There were no injuries to hands, arms, chest, abdomen or back. 9 The plaintiff was unconscious when admitted to the Manning Base Hospital. He was then transferred by helicopter to the John Hunter Hospital in Newcastle. On arrival at the John Hunter Hospital he was still unconscious and required intubation and ventilation. He appears to have been unconscious for approximately three days. Although he regained consciousness on 4 January 1990 he remained confused and disoriented. That situation continued up to his discharge from the John Hunter Hospital and transfer to Coorabel (Royal Ryde Rehabilitation Hospital) which occurred on 25 January 1990. The plaintiff's post-traumatic amnesia lasted approximately eighteen days. 10 While in Coorabel, the plaintiff was noted to be unsteady in gait and to have impaired fine motor co-ordination. A speech therapy assessment revealed a range of high-level language deficits while neuro-psychological assessment revealed a slowing in the rate of information processing and some problems with memory and new learning. 11 Following his discharge from Coorabel on 2 March 1990, the plaintiff went home to live with his parents. His behaviour at that stage was appropriate and he apparently willingly helped his parents around the house. As time went by he gradually developed the symptoms of an obsessive compulsive disorder. 12 The focus of this disorder seemed to lie in his growing conviction that there was somehow something "demeaning" and "degrading" about the treatment provided in hospital. He felt that his parents had betrayed him by allowing "all these people to come and gloat over me". He began to refuse to eat food his parents prepared or to allow them to have any physical contact. Any contact provoked an angry response and an elaborate hand washing ritual. At the same time he became quite paranoid and secretive. 13 In early 1993 he moved out of home and rented a unit at Richardson Road, Wingham. He refused to allow his parents into the unit and did his best to avoid social contact. In evidence, the plaintiff described the years between leaving Coorabel and moving to Wingham as "very deep dark depressing years … just basically I would get up and spend my time in a chair looking at a wall, or looking at a TV. That was about as much as I did in those very bad years." (T18 line 21-38) The plaintiff's description of this period was not challenged. 14 The move to Wingham was important to the plaintiff because he was not known there (T.20.36). In late 1995 the plaintiff moved from Richardson Street to a unit in Mallee Close, which was also in Wingham. In 1997 he moved into a unit at Pulteney Street, Taree. In 1998 he moved to another unit at Henry Street, Taree and in 1999 he moved to a unit at 6 Macquarie Street, Taree which is his current address. Throughout the period he has lived alone. 15 Given his presentation when admitted to Coorabel, his physical and mental improvement since that date has been remarkable. As of the date of trial his balance problems had improved to such an extent that he was able to perform domestic tasks although climbing on a chair made him feel "very wary". He had attempted to renew his interest in indoor cricket but his co-ordination had deteriorated to such an extent that he did not continue it. He tried to avoid using ladders. If repairs were needed in the unit, which required the use of a ladder, such as cleaning the tops of windows or replacing a gutter, he would arrange for that to be done through the real estate agency managing the unit. 16 In the shower with his eyes closed he did not feel stable but there was no suggestion that he might fall. The video shown at trial was revealing. It seemed to me that despite the plaintiff's evidence to the contrary, his gait was not entirely normal and there appeared to be some restrictions on his right side. 17 The plaintiff suffered from tinnitus although it had improved considerably. The tinnitus had only occurred after the accident. Whereas it had been originally quite noticeable, the plaintiff described it as a "bit of a nuisance" (T.43.4). For many years the plaintiff experienced what he described as a "rather bouncy, twitchy right leg". That condition had settled down so that of late the plaintiff had not noticed it. 18 Whereas in Coorabel the plaintiff had experienced difficulty in using his right arm and hand, when giving evidence he described the problem as being now a lack of sensation in the hand and fingers. He described it as "a dullness of my right hand". He thought the strength in his right hand was a little less than that in his left. 19 The plaintiff continues to experience headaches although they had considerably improved. 20 He described his concentration problems in the following terms: "My concentration now, is impaired is how I would describe it since that time. It sort of, sometimes I would have good points where I can focus for a while and other times it will just - I will go right off and just ignore it. Whatever I'm doing I try and just switch out of whatever the situation was. Q. That has troubled you during your studies with Southern Cross University? A. That is a big aspect of denying me my full ability with my studies I feel. So it detracts from doing - like you do an assignment or something or essay or an exam because that is like three hours you have got to concentrate all this time. Q. And what happens when you have to concentrate for three hours? A. Oh, it's hard work. For moments I will possibly, I will just sort of go off the work a bit and not be focused on it as much as I should be and thus letting me down in my overall sort of task." (T.46.35-55) 21 The plaintiff gave evidence for a day and a half and it is clear that his power of speech has been restored. His diction was quite clear although he did struggle from time to time to find the correct word. He has regained his ability to write. 22 In relation to his personality difficulties and Obsessive Compulsive Disorder (OCD) Ms Greta Goldberg, a clinical psychologist qualified on behalf of the defendant, had this to say in July, 1999: "Symptomatic Patterns suggest that Mr Knight is exhibiting a florid psychotic process that includes personality decompensation, social withdrawal, disordered affect and erratic behaviour. He appears to be quite confused withdrawn and preoccupied with occult or abstract ideas, and he may feel that others are against him because of his beliefs. He may appear quite apathetic, tends to spend a great deal of time in fantasy, and might have at some time experienced hallucinations, blunted or inappropriate affect, and hostile irritable behaviour. He appears confused and disoriented and he may behave in unpredictable or highly aggressive ways. Personality decompensation, disorganisation and thought disorder are likely to persist. Interpersonal Relations Profile suggest that Mr Knight may be experiencing disturbed relationships with others. His behaviour may appear socially inappropriate and he is likely to have very poor social skills. His emotional detachment appears to be of long standing duration. He appears to be very insecure, lacks confidence in social situations and becomes extremely anxious around other people. Individuals with this profile are typically rigid and over controlled, tend to worry excessively and may experience periods of low mood in which they withdraw almost completely from others. His generally reclusive behaviour, socially introverted lifestyle and tendency towards interpersonal avoidance are likely to be stable over time." 23 In relation to the origin and existence of the OCD, Ms Goldberg said: "Mr Knight's symptoms are consistent with an organically based process of psychotic disorders in thinking, affect and behaviour and could well be associated with the organic brain damage he sustained in the accident/incident. His symptoms do not appear to be confined to Obsessive Compulsive behaviour such as hand washing but also extend to thought disorder self reference extreme social alienation and affective withdrawal. Formal personality testing (MMPI-2) confirms a probable psychosis which according to Mr Rawlings (sic) report may have predated the head injury (Richards 4 June 1990). The history given suggests possible pre-existing dependencies and coping difficulty, insofar as he worked only for his father and no school reports are available to clarify his previous mental health. The possibilities of any pre-existing Obsessive Compulsive Disorder symptoms would imply familial factors which may be in part genetic. However it is also clear from all documents and reports that a severe head injury was sustained and that a minimal traumatic brain injury has occurred. The physical and psychological trauma associated with this injury would certainly have caused a significant decompensation of personality problems that may have been pre-existing. Medication is indicated and his responses to this may assist in clarifying his diagnosis further." 24 In relation to cognitive functioning Ms Goldberg said: "The extent of cognitive damage There appears to have been some moderate deterioration from previous cognitive level. In particular the head injury has resulted in a moderate level of impairment of thought processing visuospatial information and for complex memory function. Currently his cognitive functioning appears to have stabilised and is slightly improved since the 1994 assessment by Mr Rawlings although memory functioning is slightly worse than in 1994. Test results indicate moderate right hemisphere and frontal lobe damage." 25 Ms Goldberg saw the plaintiff again in February 2004 and summarised the results of that examination as follows: "Seen after a four year interval Mr Knight's clinical presentation is not significantly changed in terms of his agitation and fixated thinking. His life situation remains isolated and he has given up attempts to work or study. He accurately describes himself as still having some aspirations and abilities but not the staying power to achieve things. Base line comparisons with available neuro cognitive test scores between 1998-2000 show that cognitive inefficiency is still persisting. Score fluctuations from memory reasoning and executive skills are partly moderated by co-morbid psychiatric symptoms of depression thought disorder and Obsessive Compulsive symptoms." 26 My observations of the plaintiff while he gave his evidence conform with the observations of Ms Goldberg and of Mr Rawlings. He often interpreted questions in a very literal sense and became fixated on particular issues. From time to time he became irritated during cross-examination in an inappropriate way. 27 There is no real dispute between the plaintiff's medical practitioners and those of the defendant that he is suffering from a significant personality disorder and that this disorder had been brought about by the injuries sustained in the incident. The only disagreement was that Dr Lucire, a psychiatrist qualified on behalf of the defendant, diagnosed a major depressive illness with paranoid features. She did not think that he was suffering from a true obsessive compulsive neurosis but from what she called "Organic Orderliness". She defined that term as being a way of dealing with anxiety by being ritualistic and tidy. Nevertheless, she agreed with the other psychiatric/psychological specialists that his disabilities were consistent with brain damage. 28 Dr Klaas Akkerman, psychiatrist, has treated the plaintiff since July 1993. That treatment has been consistent, although there have been occasions when the plaintiff has failed to attend for periods of up to ten months at a time. He diagnosed an Obsessive Compulsive Disorder secondary to brain injury, together with a major depression which was fluctuating in its course. He also noted that various anti-depressant medications had been tried in relation to the plaintiff but had failed to produce any improvement. The plaintiff's tendency to arbitrarily go off such anti-depressant medication I see as a product of his obsessive personality and a consequence of his injuries rather than a failure to mitigate his damages by taking appropriate anti-depressant medication. 29 I accept that the plaintiff does suffer from an Obsessive Compulsive Disorder and from a fluctuating depression, such as described by Dr Akkerman and as further elaborated by Ms Goldberg and Mr Rawlings.

Pre-injury employment 30 The plaintiff's employment history, both before and after the incident, has taken on some importance. 31 After the family moved to Taree in 1985, the plaintiff's father commenced an automotive repair business which specialised in rust removal and operated under the franchise name of Endrust. I accept that during the plaintiff's final year at school (1988) he helped his father from time to time in that business. I also accept that he helped his father in that business from time to time in 1989 until the business was sold in April of that year. Such help, however, was intermittent and on an as required basis rather than on a nine to five - five day week basis. The plaintiff pointed out that he was paid in relation to each car he treated rather than on an hourly or daily basis. 32 The only other employment engaged in by the plaintiff during 1989 was for a period of between one and three weeks with Taree Leisure and Camping. The plaintiff's recollection was that this period of work would have been closer to one week than three, and was work to which he was referred by the CES. Otherwise the plaintiff was unemployed during 1989. 33 Just before the incident in which he suffered his injuries, I accept that the plaintiff had enrolled in the Taree TAFE in a course described as "Accounting Associate Diploma". The plaintiff had some difficulty (T 13) in explaining why he had chosen a course associated with accountancy, and accepted that the course in mathematics which he had completed in his HSC - Mathematics in Society - was the lowest level of mathematics available. Despite the optimism of Mr Taylor (Vocational Capacity Centre), I doubt whether uninjured the plaintiff would have successfully completed that course. 34 The plaintiff's HSC results were not good. His best subject was English. His mathematics results in particular were poor. His evidence was that he did not apply himself at school nor did he actively seek employment after leaving school because he expected to take over his father's business. This was challenged in cross-examination. 35 While I accept that the plaintiff may well have had in the back of his mind while at school an expectation that he would take over his father's business, that expectation would not have continued after he left school when it was clear to him that the work in his father's business was reducing. That expectation also does not explain the lack of any serious attempt to obtain employment after his father's business was sold in April 1989.

Post injury employment 36 The plaintiff's attempts to obtain employment after the incident are closely related to his attempts to improve his academic qualifications. Accordingly, I propose to deal with those matters together. 37 In 1992 the plaintiff enrolled in a matriculation course at the Taree TAFE with a view to improving his TER. He does not seem to have completed that course. 38 In 1995 he enrolled in a correspondence course with the Southern Cross University - Associate Degree in Law (Para-legal Studies). Between 1995 and 1998 he completed eight units of that course which comprised in total sixteen units. Initially, he was enthusiastic and successful but found that he could not concentrate. Rather than fail him in those units for which he had enrolled but failed to complete, the University allowed him to withdraw. Exhibit U, being a letter from the University dated 20 January 1998, is revealing. 39 Mr Rawlings in his report of 23 March 1994 commented on the plaintiff's desire to study: "Because he felt debased by the period of treatment in hospital, he felt a need to re-establish his credibility and sense of personal worth. To this end, he had devoted himself to study. He was attempting his Higher School Certificate by correspondence and he had set himself very high goals. He was aspiring to a TER score of ninety plus and hoped to matriculate into an economics/law degree. Despite the exaggerated personal significance this program of study had acquired, he was nonetheless very ambivalent about it." 40 In 1995-1996 he was actively involved with the CRS and completed work training programs with them. It was through the CRS that he worked for Murray Road Auto Court for six weeks in 1996 and with Solomon's Fruit Mart. That latter work involved two hours per week doing cash register work. He was not asked to stay in either job. 41 He also sought assistance from Coast Employment Assistance Services (CEAS). That organisation helped him to prepare a resume which he sent to potential employers (Exhibit E). CEAS also helped him with specific applications for work. Exhibit T is an example of such an application. 42 An examination of Exhibit E and Exhibit T makes it clear that the author (not the plaintiff) was quite creative in describing the plaintiff's work experience. The plaintiff sent this resume to many potential employers in the Taree area when he saw jobs advertised in the local newspaper. A number of letters of rejection were tendered in relation to those job applications. The plaintiff said that on many occasions he received no response to his job applications. Despite each job application being accompanied by his resume, he was unsuccessful in obtaining any work. 43 The following evidence was given by the plaintiff in relation to his job applications: "Q. How have you felt about the rejections of your applications? A. Quite downhearted about it. Q. Are you still making job applications? A. No. Q. When did you stop doing that? A. Quite possibly I have reached my peak with trying to get work 1996, '97, '98 probably from about '99 onwards when I stopped. I have been going downhill since then. Q. Downhill? A. Motivation, despondent residual depression as I would call it." (T.33.14-24) 44 I accept that the plaintiff was genuinely seeking work between 1996 and 1999 and that he gave up trying because he genuinely thought he had no real prospects of success and had otherwise become depressed because of the effects of his head injury. Having seen and heard the plaintiff give evidence over one and a half days, it became obvious that he would be a very difficult employee. This is also clear from the psychiatric/psychological reports. It should also be noted that apart from seeing his doctors, his parents and employment personnel from CRS and CEAS, he has had little social contact with others over the last 14 years. 45 It seems to me that the plaintiff's present despondency in relation to future employment and failure to presently seek work are directly related to the effects of his head injury and do not represent a lack of desire to work on his part. This emerges from a somewhat unresponsive answer: "Q. When you are at home on your own do you have feelings about how you are now and what the future holds for you? A. I just - I suppose yes of course I would. How I'm feeling what my future is? I just look at it and I don't see too much, more of the same, the memory will remain sort of thing. And also if I couldn't get into anything even if I did get a qualification I would be too old to use it. So as the best case scenario, my best case scenario would be if say I could heal myself and say hypothetically I could do it in the shortest amount of time and a qualification would be four years. If I could reignite my university work, if I could get through it I would be pushing forty by the time and to got a job as an older person is pretty hard to - sort of impossible to get really. So that aspect of not having a career is not a bright prospect." (T.57.14-29) 46 Professor Disler, a rehabilitation expert, summarised the plaintiff's situation in December 1998: "I believe that Mr Knight is severely disabled by his current symptoms. He lives the life of a semi hermit and his behaviour can only be termed as abnormal. Somewhat paradoxically his general social interaction with me and others in the consulting room was friendly and positive, so there is a real risk that his problems could be underestimated or minimised by an inexperienced observer. I believe the prognosis to be poor and treatment to be extremely difficult."

As of March 2003 Professor Disler commented: "The combination of the above is resulting in a very distressed, dysfunctional young man who really hasn't moved forward since I last saw him." 47 It is against this background that I come to assess damages.

General damages 48 The plaintiff was born on 31 October, 1970. He was injured on 1 January, 1990. Accordingly, the plaintiff was nineteen years of age at the time of the assault and is now thirty three. Approximately 14.75 years have passed since the assault. 49 In addition to the review of physical and mental problems set out above, it was clear from the plaintiff's answers that although he does not have a complete insight into his condition, he is aware in a general sense of what he has lost. "A. Presently, well I'm not really looking for a girlfriend at the moment because I have got nothing worthy enough to be in the kind of relationship that I would want to be in, the kind of woman that I would like to be with, so. No I'm not looking at such for the moment. Q. Does that upset you? A. Well I do see that one of the people in my resume, that is why I got the work at the fruit markets because I went to school with that fellow and he said - he kind of knew that something happened to me and he said "Do you want to come down and give us a hand mate", and I see he is married, three kids and another fellow that I know, he is married and last I heard he - there was a kid on the way, he has got his house, a puppy dog and everyone - here I am stuck like I have just left school in a flat by myself." (T.53.1-17) 50 Apart from the plaintiff's physical disabilities which have already been particularised, his major problem is his OCD and depression. He will not improve. This has led to him living a sterile lonely existence with minimal social contact except with his parents (with whom he is often in conflict) doctors (whom he sees for treatment or medico-legal purposes) and in the past, CRS and CEAS personnel. The future appears equally bleak. 51 The Court had the benefit of a video taken between 5 and 14 August 2004. This showed the plaintiff to be active in going to and from the shops to buy groceries and on two occasions, in driving his parents to various locations in the Taree area. What the video did not show was any social interaction with anyone else other than his parents, except on one occasion where he appeared to speak briefly to a neighbour (who was unsighted) before he entered his unit. 52 In March 2003 Mr Rawlings summarised the situation: "The head injury sustained on New Years Eve of 1989/1990 was severe in nature and carried a high risk of brain damage and associated cognitive impairment. An initial neuro-psychological assessment conducted during the acute phase of his recovery revealed a marked slowing in the rate of information processing and a mild impairment in memory and new learning. Subsequent assessments conducted in this practice revealed a gradual amelioration of these acquired cognitive deficits but in 1998, there was still evidence of residual information processing deficit. As expected, a similar result was obtained at the current assessment, memory functioning was not substantially discrepant from the estimated pre-accident level but he continued to demonstrate a mild to moderate slowing in the rate of information processing. In the years following the head injury, he developed symptoms of an obsessive compulsive disorder. These symptoms included ritualised behaviours (hand washing etc) to ward off a fear of contamination, compulsive checking and ritual counting. Any attempt to block these compulsive behaviours produced an aggressive outburst. He also became intensely mistrustful and suspicious of others. He was intensely ambivalent in his relations with others, particularly his parents, was unable to cope with pressure or deadlines and was very prone to procrastination. Development of OCD symptoms is not uncommon after traumatic brain injury. It may represent a misguided attempt of the person to impose order in a world rendered disordered and overwhelming as a result of the information processing deficits commonly occurring with traumatic brain injury. The combination of these cognitive and psychiatric deficits represented a severe disability. He was unable to cope with the demands of higher education or of even relatively low level open employment. Social functioning was severely impaired. He felt alienated from others and led a very limited social life. It is now more than ten years since his injury and there was little prospect of improvement in his cognitive functioning, psychiatric condition or social functioning." 53 The plaintiff is entitled to substantial general damages which I assess at $200,000. 54 I would attribute half of those general damages to the past. Using an interest factor of 2% per annum that would give to the plaintiff an entitlement to interest on past general damages of $29,500.

Past economic loss 55 In assessing economic loss, regard needs to be had to two matters. Whether and if so in what amount the plaintiff has a residual earning capacity and what the plaintiff would have earned had he not been injured. 56 In relation to the first matter, I am satisfied that the plaintiff has genuinely sought work since the date of the accident, but has been unable to obtain it. I am also satisfied that the reason why the plaintiff has been unsuccessful in obtaining such work is as a direct result of injuries sustained by him in the assault. I find that he has no residual earning capacity. 57 It has been put on behalf of the plaintiff, that had he been uninjured he would have successfully completed the accounting associated diploma course in which he was enrolled and would thereafter, until the date of trial, have been earning an amount equal to average weekly earnings. Reports from Messrs Horwath, accountants, which have made calculations on this basis, have been tendered in the plaintiff's case. 58 I consider that this submission is unduly optimistic from the plaintiff's point of view. Although his work history was very limited, and only covered one year after he left school, it was not good and he only seems to have worked for a matter of weeks during that year. The circumstances leading to his injury did not indicate a high level of maturity or responsibility at that time. 59 There was evidence in Exhibits 3,4 and 5 to the effect that even before the incident the plaintiff was suffering from some personality problems although it is clear as Ms Goldberg has indicated that whatever pre-existing personality difficulties there were they have been significantly exacerbated by the effects of the incident. To the extent that there were personality difficulties they would not have assisted the plaintiff in obtaining and retaining steady employment. 60 On the other hand, as has been submitted on behalf of the plaintiff, he was a young man who was only just starting out in life. Mr Taylor (p 11) was quite optimistic as to his prospects and it may well have been that uninjured the plaintiff would have been even more successful in his employment than that which is reflected in the average weekly earnings of male employees in New South Wales upon which the Horwath report is based. 61 The figure for average weekly earnings is derived from an average of very high earners and very low earners. I am not persuaded that the plaintiff in relation to the past would have been earning at that level. Nevertheless, the Horwath figures do provide a useful basis for calculation. Keeping in mind the authorities reviewed by Heydon JA in State of NSW v Moss (2000) 54 NSWLR 536, I am prepared to assess the plaintiff's past economic loss on the basis of the Horwath calculations but to reduce it by 20%. This produces a figure of $321,752 for past loss of economic capacity. 62 It has been agreed between the parties that interest on past economic loss should be calculated using a figure of 7% per annum. In accordance with the Horwath calculations I do not commence the interest calculation until January 1993. This produces an entitlement to interest for the past loss of $264,641.

Future loss of earning capacity 63 Damages for future loss of earning capacity have to be calculated with the same lack of precision as those in relation to the past. The plaintiff has lost the capacity to work in the future. We will never know what he may or may not have achieved had he been uninjured. I propose to follow the same approach for the future as for the past and use as the basis for my assessment the calculations for the future made by Messrs Horwath based on the average weekly earnings of males in New South Wales but reduced by 20%. I have applied a further reduction of 15% for vicissitudes and have used the 3% tables (multiplier 1079.8). Using that approach my assessment of future loss of earning capacity is $604,466.

Loss of superannuation benefits 64 Applying the same approach, I would reduce the Horwath calculation by 20% to produce a figure of $72,625 for loss of superannuation benefits.

Past out-of-pocket expenses 65 These have been agreed between the parties at $23,809.95.

Future out-of-pocket expenses 66 The claim on behalf of the plaintiff has been put at $50,000 calculated as follows:

(i) weekly visits to Dr Akkerman for the rest of his life - $20,272.50 (ii) $20,000 for future medication for the rest of his life ($15.00 per week) (iii) $10,000 for treatment with a psychologist, visits to general practitioners and for the possibility of treatment in a residential program. 67 I doubt whether the plaintiff will continue to visit Dr Akkerman or any other psychiatrist every week for the rest of his life although it is clear that he will require psychiatrist/psychological treatment for the rest of his life. (Ms Goldberg report 23.2.04). 68 It is also clear that whether or not the plaintiff is prescribed anti-depressant medication he may well not take it or having taken it for a period, unilaterally cease doing so. That seems to be a direct consequence of his condition. Nevertheless, Professor Disler does prescribe a number of medical interventions for the future. 69 Keeping in mind that the plaintiff has a life expectancy of 47 years and taking into account the above matters, I am of the opinion that an award of $40,000 for future out-of-pocket expenses is appropriate.

Past domestic assistance 70 The claim put on behalf of the plaintiff is based upon the report of Ms Molloy. Her assessment of the "care/assistance" which the plaintiff has received in the past is calculated at an hourly rate of $25:

(i) For the first twelve months following the incident 18 hours per day (126 hours per week - $3,150) $163,000

(ii) For the second year post accident 6 hours per day (42 hours per week - $1,050) $ 54,600

(iii) For the third year post accident 4 hours per day (28 hours per week - $700) $ 36,400

(iv) For the fourth year post accident 2 hours per day (14 hours per week - $350) $ 18,200 Total $272,000 71 On behalf of the defendant it is submitted that the allowance made by Ms Molloy in relation to the months of March, April and May 1990 ($7,351.68) is appropriate and no further allowance should be made for past assistance/care. 72 The plaintiff's evidence on the subject is at T.18.19-38: "Q. Do you remember much about those first couple of years back home? A. Very deep dark depressing years. Q. Could you do anything for yourself much during that time? A. Not really. Q. Do you remember what you did do? You say deep dark years what do you mean by that for example?

HIS HONOUR: He said very deep dark depressing years. Q. Deep dark depressing years. I do not want to have to bring this all up in your mind again unnecessarily, but do you remember how you were spending your time? A. Just basically I would get up and spend my time in a chair looking at a wall, or looking at a TV. That was about as much as I did in those very bad years." 73 The only other evidence on the topic is on p4 in the report of Ms Molloy of 12 October, 1998: "Mr Knight was discharged from care at the end of February 1990 and stayed with his parents for approximately three months (should be three years) before going into a unit on his own. Mr Knight's parents stated that Austin would have been unable to care for himself for the initial period of time. He was able to attend to his own personal care but had limited mobility and needed his meals prepared for him. He was extremely depressed fearful and angry and was in a great deal of distress. He required constant supervision and also help with transport. He was unable to cope financially." 74 On the basis of the above evidence, it is impossible to assess the plaintiff's need for past care/assistance with any degree of precision. There seems to be no evidence to support that any care/assistance was provided for the plaintiff in the fourth year following the accident since it was in early 1993 that he left home. Accordingly, that part of the claim on behalf of the plaintiff should be rejected. 75 The comments of Giles J (as he then was) in are helpful: Hines v Commonwealth of Australia (1995) Aust Torts Reports 81-388 at 62364-62365 "The evidence supporting a need for care by both parents was rather scanty, particularly after the plaintiff had moved to rehabilitation establishments, and as time went on the need for care as distinct from the provision of comfort by the presence of her parents is more difficult to see. Both parties engaged in totalling up days and hours, exercises which were useful but which assumed an unrealistically precise delineation between a need for the services of the plaintiff's parents and their assistance, even by simply being there, short of fulfilling a need. The basis for recovery is the plaintiff's need for a service, and the measure of damages is the reasonable objective value of the need for the services Van Gerven v Fenton (1992) 175 CLR 327). Generally that is assessed by reference to a market cost, but that need not be so and does not mean a calculation by days hours and a rate must be undertaken. A general sum may be found as a value of the need (see in a slightly different way Wilson v McLeay (1961) 106 CLR 523). In the present case I do not think that a narrow view of the plaintiff's need should be taken, and for someone in her position fairly slight assistance by her parents could fulfil a need not just in matters such as assisting to move her limbs while hospitalised, encouraging her return to consciousness and providing stimulation, and helping with physical and cognitive therapy. All these things the plaintiff's parents did, but by the time the plaintiff went to Mt Wilga the direction was towards encouraging independence and moral support, while understandable, increasingly no longer fulfilled a need." 76 It is clear from the plaintiff's evidence that upon his discharge from Coorabel he was significantly more physically disabled than when he gave evidence at trial fourteen years later. His evidence about being depressed and merely watching TV or looking at a wall is consistent with him being seriously depressed during that period and requiring some kind of supervision by his parents even though he was able to look after his own personal care needs. 77 Applying the broad general approach suggested by Giles J, I propose to allow one quarter of the amount claimed on behalf of the plaintiff in respect of the first three years following the incident ie $63,500. 78 Interest on that figure from January 1993 to date at 7% per annum produces an additional $52,229.

Future domestic assistance 79 It is clear that the plaintiff has not been receiving assistance since early 1993. Since that date he has been living on his own in units in the Wingham/Taree area (see [14]). The plaintiff's evidence as to how he conducted his domestic affairs is at T.47.41-T.50.43. I am not persuaded that the plaintiff requires any physical assistance in maintaining his unit. I am also not persuaded that the plaintiff has any desire to live in a house with a garden, as distinct from a unit. His answer to the questions related to that topic did not demonstrate any desire to have a house with a garden (T.50.23-43). Accordingly, I reject the prescriptions by Ms Molloy and by Ms Tchan for physical assistance to the plaintiff in performing housework, housecleaning, cooking etc. 80 The evidence of the plaintiff to which I have referred (T.47-50) made it clear that between early 1993 and the date of trial while the plaintiff has been living on his own, there have been occasions when the units in which he was living were kept in a tidy condition. At the time when Ms Tchan visited, the photographs reveal a unit which was untidy but not dirty. The plaintiff explained the photos by saying that he was aware that the unit was "untidy and quite disgraceful" but he lacked the motivation to clean it up. 81 I see the plaintiff's need not being one for physical assistance but rather for support and motivation, along the lines of but not identical to, the prescription of Professor Disler (report 25 March 2003 - p6): "The cornerstone of rehabilitation in a person like this, is often the appointment of a case manager or mentor, who can help with decisions that allow, and enhance progress. In addition he needs a vocational rehabilitation program that will provide a structure, for the vocation activities in his life, so he can move forward progressively and build his confidence. Clearly his university studies, which would have been extremely positive, are not moving forward because he can't orchestrate his activities. If an appropriate plan is developed for him, with the assistance of a case manager he could move forward on many levels. Finally I do not think that the recreational aspects should be understated or ignored. One of his big problems is that he does not socialise. Even if a plan is developed, and a mentor helps him to put it in place, he still may need support in order to move forward eg it may be worth exploring the possibility of someone attending the gym (or other activities) with him to help him develop a social network. Certainly in the early stages, of any social interaction, he may be able to cope with the social pressures more easily with someone "on his side". I think it would be useful exploring the possibility of finding (and employing) someone of his age, who can embark on activities like this with him and help him move forward. A co-ordinated approach like this is essential if he is to stop being a recluse and return effectively in society." 82 In her report of 25 May 2004 Ms Tchan, an occupational therapist, concluded that: "Mr Knight is unable to lead a fully independent life without monitoring from a responsible person, however has demonstrated the ability to live alone."

Her regime of care for the future was for 4 hours per week of domestic assistance, 8.78 hours per week for attendant care and .25 hours per week for outdoor maintenance if the plaintiff remained in a unit. 83 I do not accept that the plaintiff requires domestic assistance. As indicated above, he is physically able to perform those tasks for himself. Similarly, with outdoor maintenance most of which would be done by the agent/body corporate if he continued to live in a unit situation which I believe is most likely. Accordingly, the requirement which needs to be assessed is that for attendant care. 84 The rationale for such attendant care is set out at p7 of the report of Ms Tchan. It was thought that the plaintiff required assistance to plan new activities, complete tasks and maintain a weekly routine. The attendant would need to be trained to help with these activities. The plaintiff would need some monitoring or companion support for his waking hours to help him get organised and plan appropriate leisure or work activities. The attendant carer would be responsible for assisting the plaintiff to plan and structure his week, meal and domestic task planning, the planning of appropriate leisure activities and prompting the plaintiff to initiate tasks. 85 It was also thought that a case manager would be required to oversee the plaintiff's future care particularly when his parents were unable to do so. This person would initially set up programs in relation to domestic, leisure and vocational activities. It was thought that two days, or sixteen hours per year, would be appropriate at the cost of $125 per hour. 86 I agree with Ms Tchan that some attendant intervention is required. I also agree that some overall supervision in the form of a case manager is also required. I am not convinced that eight hours per week is appropriate. Any such estimate must of necessity be somewhat arbitrary. The regime which I propose, taking into account all of the medical material but also the plaintiff's history since 1993 when he has been living on his own, is five hours per week ie 1 hour per day Monday to Friday together with case management as prescribed by Ms Tchan. In making that assessment I am mindful of the legal requirement that such a prescription is to meet the plaintiff's reasonable needs created by the injury not to provide an optimum solution. I am also mindful of the intransigent nature of his personality disorder which in one sense no amount of external intervention is going to cure. 87 Using Ms Tchan's figures, the cost of regime which I have assessed for the next 47 years of the plaintiff's life (multiplier 1325.3) is $220,729 for the attendant carer and $112,651 for the case manager.

Future equipment needs 88 Ms Tchan advised that a computer, software and printer should be provided for the plaintiff. The plaintiff already has a computer which he used both for study purposes and for leisure. I do not accept that the need for a computer and accompanying equipment has been created by the incident and I reject that claim. 89 Ms Molloy has suggested the need for a top-loading washing machine, a clothes dryer, a frost-free refrigerator, an under-bench dishwasher, a side-opening wall oven and an electric cooktop. As with the computer, I do not accept that the need for this equipment has been created by the incident. These are normal pieces of equipment which are traditionally acquired for any home. These would be expenditures which the plaintiff would have had to have made even if he had not been injured. I reject the claim for these equipments.

Fund management 90 The plaintiff relied upon the opinion of Dr Lucire that the plaintiff was unable to manage and appropriately deal with the damages which he will receive from this claim. Dr Lucire offered no further justification than the nature of the plaintiff's condition as she diagnosed it. 91 The defendant relies upon the opinions of Dr Akkerman and Dr Kendall. The opinion of Dr Akkerman carries considerable weight. He is a psychiatrist who has been treating the plaintiff since 1993 and on quite a frequent basis over the last five years. In his report of 6 July 2004 he examined this question in considerable detail, having first discussed the matter with the plaintiff. The cross-examination of the plaintiff at T.99.28-T.102.48 fleshes out the background to the opinion of these doctors. 92 The plaintiff's reluctance to entrust his damages to the Protective Commissioner and his own personal belief as to whether he can manage those funds is of itself largely relevant. In this case his desires and intentions have been considered by two doctors who have taken them into account with their own expertise and have concluded that the plaintiff does not require funds management. 93 I accept the opinions of Dr Akkerman and Dr Kendall on this question and I make no award in the plaintiff's favour for fund management. 94 In accordance with the above reasons, my assessment of the plaintiff's entitlement to compensatory damages is as follows:

Future domestic assistance Attendant carer $ 220,729.00 Case manager $ 112,651.00

Aggravated damages 95 Aggravated damages have been claimed on behalf of the plaintiff. Such damages have been described as compensatory in nature. They may be awarded for injury to a plaintiff's feelings caused by the insult, humiliation and the like involved in the relevant wrongdoing. 96 There is no doubt that the circumstances in which the plaintiff was injured could, if the evidence permitted, justify an award of aggravated damages. There is only one brief passage in the evidence which impacts on the issue. (T.59.47) "Q. The fact is that your injuries were sustained when you were bashed by a police officer, how do you feel about that? A. Well because being a .. Q. I'm not talking about what you can remember or not remember, I am just asking you to assume that is a fact? A. Yeah. Q. That you were bashed by a police officer and that the way you were left after that bashing is the way you are now, how do you feel about that? A. Well I don't feel very good about that at all. It's crushed my belief in the world, society everything, everything else really. Q. Do you ever become emotional? A. As in. Q. Breaking down, crying? A. If I could cry I would but I don't know just maybe not the tear ducts. I admit that I did cry in the dark depression days, tears would come from my eyes quite easily and regularly, but as for now, I might feel like it but there's no release for the pressure cooker that's built up so." 97 As indicated earlier in this judgment there is no doubt that the plaintiff suffered not only physical injury but significant psychiatric/psychological injuries as a result of the incident. That has been taken account of in the award of general damages. I am not satisfied that the above evidence is sufficient to justify additional aggravated damages for the insult and humiliation associated with the assault. There is insufficient evidence to indicate that the plaintiff's feelings and psychological wellbeing have been damaged by the circumstances of the assault as distinct from its direct consequences. 98 For those reasons I reject this aspect of the plaintiff's claim.

Exemplary damages 99 Exemplary damages are to be distinguished from compensatory and aggravated damages. This distinction has been repeatedly accepted by the High Court and the existence of exemplary damages as a separate head of damage has been clearly affirmed (Lamb v Cotogno (1987) 164 CLR 1 and Grey v Motor Accident Commission (1998) 196 CLR 1. The contrary was not argued before me. 100 It is now clear that exemplary damages may be given where a wrong is so gross and involves such factors that it is appropriate by special award to seek to deter the defendant from a repetition of what has been done. (Uren v John Fairfax Pty Limited (1966) 117 CLR 118 at 129-130). The punitive and deterrent aspects are important. "The object or at least the effect, is not wholly punishment and the deterrence which is intended extends beyond the actual wrongdoer and the exact nature of his wrongdoing … So far as the object of deterrence is concerned, not only does it extend beyond the defendant himself to other like minded persons, but it also extends to conduct of the same reprehensible kind". ( Lamb v Cotogno (at 8). 101 The deterrent purpose must influence quantum. "If exemplary damages are to fulfil their threefold purpose, they must not merely irritate, they must sting. It is the gravity and character of the defendants' which guides the court's discretion as to the proper amount to award by way of exemplary damages. That is why there is "no necessary proportionality" between the amount awarded as compensation for damage suffered by the plaintiff and the amount of exemplary damages against the defendant … A minimal amount of damage inflicted on a plaintiff may, if the wrongdoing was outrageous, nevertheless require heavy exemplary damages to be visited on the defendant." ( Harris v Digital Pulse Pty Limited (2003) 56 NSWLR 298 at paras 254 and 256.) 102 The assault in this case has been described by Master Malpass in his judgment. It involved the striking of the plaintiff about the head with a torch by Constable Jones who was described as a person of large physique. There is no evidence of any provocation, except that the plaintiff had sought to avoid arrest. No explanation was ever offered as to why the plaintiff was assaulted. 103 The evidence of Dr Davis in his report of 27 May 1994 was: "Even if Austin Knight had been attacked, as suggested in the various reports by an assailant or assailants unknown, then I envisage that the damage inflicted on Mr Knight's face and head was due to multiple blows from the fists of his assailant plus blows by a blunt instrument such as a truncheon. In fact I believe that the multiple intracerebral haematomas were produced by multiple blows to the skull either by some blunt instrument or a truncheon." 104 I infer from this assessment that Constable Jones struck the plaintiff on a number of occasions. The only possible thing to be said in Constable Jones' favour is that the assault was perpetrated in the heat of the moment, possibly as a result of exasperation at having to chase the plaintiff, rather than as a result of any premeditated plan. 105 I regard the conduct of Constable Jones as vicious and disgraceful and deserving the highest disapprobation. Accordingly I assess exemplary damages at $200,000.

The defendant liable to pay exemplary damages. 106 The defendant argued that in the circumstances of this case it was not possible as a matter of law to award exemplary damages against it. The argument proceeded as follows. The liability of the defendant arose under s8 of the Law Reform (Vicarious Liability) Act 1983. Subsection 8(1) provided: "Notwithstanding any law to the contrary, the Crown is vicariously liable in respect of the tort committed by a person in the service of the Crown in the performance or purported performance by the person of a function …" 107 The meaning to be given to "vicariously liable" is to be taken from the common law. In Canterbury Bankstown Leagues Club v Rogers (1993) ATR 62,538 the Court of Appeal held that the Club was vicariously liable for the compensatory damages awarded in favour of Rogers but not for the exemplary damages awarded against its player/employee, Bugden. 108 The principle which the defendant seeks to draw from that case is that an employer is only vicariously liable for exemplary damages where it has done something to encourage or foster the attitude which led to the activity the subject of the exemplary damages. There was no such finding made by the Master. The Master's finding as to negligence was not specific and arose from his findings as to assault. There was no finding of any personal or direct wrongdoing on the part of the State in this case. 109 The defendant submits that no assistance is provided by the Court of Appeal decisions in Adams v Kennedy [2000] NSWCA 152 and Lee v Kennedy [2000] NSWCA 153, nor by Nye v State of NSW & Ors [2003] NSWSC 1212. In those cases although exemplary damages were awarded against the State, the police officers had also been joined personally in the claim and representation had been provided jointly for both the State and the police officers. This specific point was never argued in those cases. The difference between those cases and this case is that the State is the only defendant in this case. 110 The defendant also points to the transcript of argument before the High Court in the special leave application in the Lee and Adams cases as supporting its proposition that the joint representation of the State and the police officers in those cases distinguishes them from this case. 111 The defendant's contention is that the Canterbury Bankstown Leagues Club decision remains good law and the only way in which exemplary damages could be awarded against the State as defendant in this case is if some separate and direct culpability had been established against it which would justify exemplary damages. That not having been done, the plaintiff's claim for exemplary damages must fail. 112 The plaintiff makes a number of responses to the defendant's argument. The plaintiff submits that s8 of the Law Reform (Vicarious Liability) Act 1983 in effect creates a new category of liability. It should be interpreted according to its terms and not by reference to the common law. In that regard the use of the word "vicariously" in subsection 8(1) is superfluous. What the Crown was accepting was "liability in respect of the tort" ie all liability in respect of the tort. There is no authorisation for reading into the words "vicariously liable" any common law limitation such as was referred to in the Canterbury Bankstown Rugby League case. Support for that approach is to be found in the Second Reading Speech where the then Attorney-General said: "The Government has decided that the State should accept liability for the wrongful acts of all persons in the service of the State in addition to those employees who fall within the strict master and servant relationship."

In other words the intention of the Parliament was to accept all liability for wrongful acts. 113 The plaintiff submits that further support for that argument comes from the amendments made to the Law Reform (Vicarious Liability) Act 1983 by the Police Legislation Amendment (Civil Liability) Act. Those amendments inserted s9B which provided subject to specified exceptions that a person could not directly sue police officers for a tort allegedly committed by the police. If the defendant's argument in relation to s8 of the Act was correct, the effect of this amendment would be to prevent any claim being brought against the State for exemplary damages since after the amendments took effect, claims could no longer be brought against police officers personally. The plaintiff says that this was not the intention of the amendments as set out in the Second Reading Speech. The purpose of the amendments was clearly stated to be to protect police from the anxiety of being unnecessarily joined to a civil suit. 114 I agree with the plaintiff's submission on this point. I do not see the use of the word "vicariously" in subsection 8(1) as intended to place a restriction on the liability accepted by the Crown. I read the subsection as involving an acceptance of all liability for the tort by the Crown including any liability for exemplary damages "in respect of the tort". The word "vicariously" if it is to be given a meaning describes the legal mechanism whereby liability has been accepted but does not limit the extent of the liability accepted. 115 The plaintiff also challenges the interpretation given to the Canterbury Bankstown Rugby League case by the defendant. The plaintiff submits that the judgments in that case do not deal with the question of whether the Club/employer was vicariously liable for the exemplary damages awarded against Bugden, its employee. This is true, although the modest amount awarded against the employee ($7,500) and the general discussion of appropriate amounts by Mahoney JA make it clear that implicitly at least the Court had in mind that Bugden personally would be paying the exemplary damages specifically awarded against him but not against the Club/employer. 116 In my opinion the real distinction between what was decided in the Canterbury Bankstown Rugby League case and the present case is the application of the Law Reform (Vicarious Liability) Act 1983. The Court in that case was never referred to s7 of the Act. Had the Court been referred to the Act, with its focus on the tort and liability for the tort, the outcome of the argument may have been different. 117 The distinction sought to be drawn by the defendant between the present proceedings (against the State only) and proceedings where the police officers were individually joined as determining whether or not exemplary damages can be awarded against the State is not valid. No support for the proposition is provided by the discussion before the High Court in the special leave application in Kennedy & Ors v Adams. 118 In this case it was never an issue that the State was vicariously liable for the conduct of the police officer Jones. The issue was one of fact - had Jones assaulted the plaintiff or had the plaintiff's injuries been caused by his own actions in climbing the wall. This was the point made by Gaudron J in the course of the special leave argument. A similar but not identical point was raised by Gleeson CJ in that argument when he referred to joint representation. The point sought to be made by the defendant might be valid in a situation where there was a real issue as to whether the police officers were acting in the course of their service with the Crown and where vicariously liability had not been conceded (Prior v State of NSW (NSWCA unreported 23.10.98)). Such was not the case here. 119 The final point of distinction between this case and the argument relied upon by the defendant is that not only was the State found liable for the assault on the plaintiff by Constable Jones, but it was also found to be liable in negligence. (Knight v State of NSW [2001] NSWSC 1096 at [121]). 120 The only claim in negligence made directly against the defendant in the Statement of Claim was that the defendant had failed to adequately instruct and train police officers such as Constable Jones. The finding of negligence made against the State must of necessity relate to this allegation. 121 Unlike cases such as the Canterbury Bankstown Rugby League case there was direct liability found against the State as well as its vicarious liability for the assault by Constable Jones. The expressions of opinion in the Canterbury Bankstown Rugby League case do not cover such a situation and expressly excluded any direct responsibility on the part of the Club/employer. 122 It follows that I am of the opinion that I am able to include in the plaintiff's damages an amount for exemplary damages and I do so as indicated above in the sum of $200,000. 123 I enter judgment in favour of the plaintiff against the defendant in the sum of $2,205,902.95. 124 On the material before me, there is nothing to indicate that costs should not follow the event. Since costs were not specifically argued before me, I grant leave to the parties on seven days' notice to approach the Court if any special costs orders are sought. Otherwise the order will be that the defendant pay the plaintiff's costs of these proceedings.

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