MacDougal v Mitchell

Court of Appeal (NSW)|2015-11-24|Before: Meagher JA, Bergin CJ

Solicitors: Slater and Gordon (Applicant) File Number(s): 2015/84875 Decision under appeal Court or tribunal: District Court Jurisdiction: Civil Date of Decision: 27 February 2015 Before: Sorby DCJ File Number(s): 2013/385047

Judgment

MEAGHER JA: I agree with Tobias AJA.
BERGIN CJ in Eq: I agree with Tobias AJA.
TOBIAS AJA: By Summons filed on 27 May 2015, the applicant, Leon Peter MacDougal, seeks the Court's leave to appeal against the decision of his Honour Judge R A Sorby, of 27 February 2015 wherein it was ordered that there be judgment for the applicant against the respondents in the sum of $80,500.45 together with costs. The applicant maintains that his Honour's award of damages was inadequate insofar as he failed to award aggravated and/or exemplary damages or a "cushion" for future economic loss.

Background

The applicant sought common law damages for an alleged assault upon him which occurred around 1.30 am on 21 April 2012 in the public bar of the Criterion Hotel in Singleton, NSW. At the hearing before the primary judge and on the appeal, the first respondent did not appear. Nevertheless, his Honour and this Court were satisfied as a consequence of appropriate affidavit evidence that the first respondent had not only been served with the relevant documentation but also had been made aware of the hearing dates of both the trial and the appeal. As to the second respondent, he was permitted to be represented both at trial and on the appeal by his father Terrence John Osland.
As noted, the applicant's case against the respondents was that he was assaulted by each of them whereby he lost consciousness and sustained amnesia and significant dental injuries which required the removal of his two front teeth under general anaesthesia and their replacement by dental implants and crowns. He also suffered psychological issues the details of which are the subject of a report of Dr Wayne Mason, Consultant Psychiatrist, dated 19 May 2014.
At the time of the hearing before the primary judge, the applicant was living in the United Kingdom and gave his evidence via Skype. Apparently he was cross-examined to a degree by Mr Osland Snr, although the impression one gets is that that cross-examination was directed to the issue of liability rather than damages. Regrettably, there is no transcript of the trial before this Court.

The Decision on Liability

As the primary judge recorded at [7] of his reasons, the applicant's recollection of the assault was poor and he remembered very little as he was apparently highly intoxicated. He only recalled waking up in hospital where he remained for some five days. Essentially, the significant evidence at trial on which his Honour's findings on liability were based was a copy of the CCTV footage obtained from the hotel, together with still photographs taken from that footage. The primary judge described what he saw in the CCTV footage in detail at [9] and [10] of his reasons.
Apart from the applicant himself, the only other witness for the applicant was a Ms Erin Daly, a solicitor who was a patron of the hotel that night, and who gave detailed evidence to which his Honour refers at [13] to [23] of his reasons. Relevantly, her evidence, which his Honour accepted, was that she observed the second respondent kick the applicant in the face after he had fallen to the floor. Her evidence in terms was that "a man in a t-shirt came in and ferociously kicked the plaintiff square in the face". His Honour found that that person was the second respondent.
Having described what he observed from the CCTV footage as to the assaults by the respondents upon the applicant, at [10] of his reasons his Honour noted that subsequent footage showed both respondents retreating back to the area of the bar where the altercation had started, and that the first respondent had then thrown his fist into the air and thereafter shaken hands with the second respondent - giving the impression of celebratory conduct.
The second respondent gave evidence at trial in which he denied that he had kicked the applicant in the face or at all, a denial which his Honour clearly did not accept. He explained what his Honour referred to as the "high five" with the first respondent as shown on the CCTV footage when they returned to their table as "just being intoxicated". At [35] the primary judge recorded that the second respondent had said that he was "really sorry" after watching the CCTV footage. His Honour accepted that, since that evening, the second respondent was remorseful.
At [36] the primary judge concluded that having viewed the CCTV footage and heard the evidence of the applicant and the second respondent, he was satisfied that both respondents had assaulted the applicant as he had alleged. At [37] he recorded that he was further satisfied that the second respondent had kicked the applicant in the face as he lay on the floor. Importantly, at [38] and [39] the primary judge found that the assaults constituted by the punching of the applicant by both respondents and the kick in his face by the second respondent, "were intentional acts to cause injury". Further, he found that the assaults were committed by the respondents "without lawful excuse, nor in self-defence".
There is no challenge by the respondents to the primary judge's findings on liability or with respect to his other findings of fact. An attempt was made by Mr Osland Snr on behalf of the second respondent to place a different slant upon what could be observed in the CCTV footage than had been found by the primary judge. In particular, he sought to lay a degree of the blame for the altercation upon the applicant including an assertion that he had assaulted the first respondent when his hands were being held behind his back.
As there was no cross-appeal on the issue of liability it was not open to Mr Osland Snr to attempt to undermine the primary judge's findings of fact with respect to the assault and the circumstances in which it occurred. Thus there was no finding upon which Mr Osland Snr can rely to suggest that the applicant in any way was an aggressor or that he was guilty of any conduct which provoked the incident. Importantly, the primary judge's findings established that the respondents' conduct was intentional; that they had set out to cause injury to the applicant; and that they were fully conscious of the nature of their conduct and that it had resulted in the applicant sustaining serious injuries in respect of which they appeared to congratulate themselves.

The Decision on Damages

The primary judge then dealt with the issue of damages. Out-of-pocket expenses in the sum of $17,045.45 and past economic loss in the sum of $8,455 were awarded and are not the subject of challenge in the appeal. With respect to non-economic loss, his Honour awarded the applicant general damages in the sum of $55,000. That sum must be taken to have included a component for mental suffering or hurt feelings sustained by the applicant as a consequence of the assaults. However, his Honour declined the applicant's claim for aggravated and/or exemplary damages and a cushion in respect of future economic loss. The applicant's appeal is confined to those heads of damages in which his Honour declined to make an award.
Because the injuries sustained by the applicant were as a result of intentional acts of the respondents with intent to cause injury, s 3B(1)(a) of the Civil Liability Act 2002 (NSW) provided that the Act did not apply to or in respect of any award of damages in the present proceedings. Accordingly, damages were at large. Nevertheless, the applicant accepted that, leaving to one side the question of aggravated and/or exemplary damages, his Honour's award of $55,000 for general damages was within the range of damages which could be awarded to the applicant in respect to the injuries and mental suffering which he sustained in, or as a consequence of, the assaults. That range was, according to the applicant, between $50,000 and $100,000 so that the primary judge's award was at the lower end of that range but nevertheless within it and, therefore, not amenable to appellate intervention.
The thrust of the applicant's appeal, therefore, was that the primary judge erred in failing to award aggravated and/or exemplary damages notwithstanding his findings that the assaults perpetrated by the respondents upon the applicant were "intentional acts to cause injury" and were "without lawful excuse nor in self-defence".

The claim for Aggravated and/or Exemplary Damages

With respect to the applicant's claim for aggravated and/or exemplary damages articulated by him, the primary judge's reasons for disallowing such damages is contained in the following four paragraphs of his reasons: "61. Exemplary damages and punitive damages are damages over and above that necessary to compensate the Plaintiff and are awarded to punish defendants and provide rehabilitation and to act as both specific and general deterrents and demonstrate a court's disapproval of such conduct. They are rarely awarded and only where there is conduct and where there is 'high handed, insolent, vindictive or malicious conduct' amounting to a 'conscious wrongdoing or contumelious disregard of another's rights' (Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR at 129 per Taylor J). 62. In the context of the assaults before me and the intoxicated state of the Second Defendant I do not think the assaults meet the test set out by the High Court in Uren (supra) and I make no award for exemplary damages. 63. Aggravated damages are awarded to compensate a Plaintiff for increased mental suffering due to the manner in which a defendant behaved in committing the wrong or there other (Uren supra per Windeyer J at 149). 64. They are essentially compensatory in nature. In my view, my award to the Plaintiff for general damages is sufficient compensation and I disallow the claim for aggravated damages."
As to aggravated damages, the leading authority is the judgment of Hodgson JA with whom, relevantly, Sheller JA and Nicholas J agreed, in State of NSW v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496. His Honour set out the principles applicable to an award of aggravated damages at [126] to [133] of the judgment. Although Riley involved a case of assault and false imprisonment by police officers resulting in hurt feelings on the part of the plaintiff, nevertheless the principles to which I am about to refer are equally applicable to the present case.
At [126] Hodgson JA noted that as stated in the joint judgment of the High Court in Lamb v Cotogno [1987] 164 CLR 1 at 8: "Aggravated damages, in contrast to exemplary damages, are compensatory in nature, being awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like"
His Honour continued: "127 That immediately raises the question, what is it that distinguishes aggravated damages from ordinary compensatory damages? Ordinary compensatory damages are supposed to be an amount adequate to compensate the plaintiff for all consequences of the defendant's wrongful conduct that are not too remote; so what room is there for additional damages, which although dependent on some aggravating feature of the defendant's wrongful conduct, are still supposed to do no more than compensate for consequences of that conduct? 128 In cases where the wrongful conduct is trespass to land, for which damages for psychological injuries are not generally awarded, one can say that aggravated damages are compensatory damages for injury to the plaintiff's feelings by the manner of the trespass, which would not otherwise have been awarded. 129 But aggravated damages are also awarded in cases where ordinary compensatory damages for injury to feelings are generally awarded, such as assault or defamation. 130 If, in addition to ordinary compensatory damages for injury to feelings, aggravated damages are to be awarded, then plainly it is important to avoid double counting; and the question arises, what can the additional aggravated damages be compensation for when injury to feelings have already been included in ordinary compensatory damages? 131 In my opinion, the only principled explanation must be along the following lines. It is extremely difficult to quantify damages for hurt feelings. In cases of hurt feelings caused by ordinary wrong-doing, of a kind consistent with ordinary human fallibility, the court must assess damages for hurt damages neutrally, and aim towards the centre of the wide range of damages that might conceivably be justified. However, in cases of hurt to feelings caused by wrong-doing that goes beyond ordinary human fallibility, serious misconduct by the defendant has given rise to a situation where it is difficult to quantify appropriate damages and thus where the court should be astute to avoid the risk of under-compensating the plaintiff, so the court is justified in aiming towards the upper limit of the wide range of damages which might conceivably be justified."
After referring to the speech of Lord Reid in Cassell & Co Ltd v Broome [1972] AC 1027 at 1085, his Honour summarised the relevant principles in the following paragraph: "133 This means that, if a court has awarded damages for hurt feelings as part of ordinary compensatory damages, the award of aggravated damages must only be for the difference justified by this approach, that is, an award of so much as is necessary to bring the damages up to the upper end of the available range. The approach also means, I think, that aggravated damages can be a matter of degree: the worse the defendant's conduct, the further from the centre of the range and towards the upper limit of the range the court may be justified in going."
At [63] of his reasons the primary judge referred to a passage in the judgment of Windeyer J in Uren v John Fairfax & Sons Pty Ltd [1966] 117 CLR 118 at 149, where his Honour said that: "Aggravated damages are given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done."
Notwithstanding the manner in which the assaults in the present case took place including, in particular, the second respondent kicking the applicant in the face whilst he lay on the floor, the primary judge considered that his award of general damages in the sum of $55,000 was sufficient compensation without there being any additional amount for the aggravated manner in which the assault took place. Given that I accept the applicant's submission that the primary judge's award of general damages in the sum of $55,000 was at the lower end of the range of damages which could be so awarded without regard to aggravated and/or exemplary damages, in my opinion his Honour erred in failing to make an appropriate allowance to take account of the manner in which the respondents assaulted the applicant.
I would also accept that the relevant range of general damages was between $50,000 and $100,000. The findings of the primary judge as to the aggravated nature of the conduct of the respondents towards the applicant would justify in some circumstances an increase in compensatory damages towards the upper end of the available range depending on the starting point. As Hodgson JA stated in Riley at [133], the worse the respondent's conduct, the further from the centre of the range and towards the upper limit of the range the Court may be justified in going.
However, Hodgson JA's comments were predicated upon the assumption that a court has assessed damages for hurt feelings at or about the centre of the range of damages that might conceivably be justified. If that hurt is caused by serious misconduct, then aggravated damages may be awarded which will bring the total up towards the upper end of the available range.
In the present case there is no challenge to the award of $55,000 as it is accepted that it is within the available range albeit at its lower end. That then becomes the starting point for an award of aggravated damages given, as noted at [14] above, that that sum must have included a component for hurt feelings. In these circumstances it would be overcompensating the applicant to award aggravated damages which brought the total of compensatory damages up towards the upper end of the available range.
In the circumstances of the present case, therefore, and notwithstanding the low base within the range adopted by his Honour, the amount of compensatory damages should be increased to account for the aggravated manner in which the respondents conducted themselves towards the applicant. An additional amount of $10,000 - thus bringing general compensatory damages up to the amount of $65,000, should be awarded.
The primary judge set out the relevant test with respect to exemplary damages at [61] of his reasons, which I have recorded at [17] above. The principles for the award of exemplary damages have been stated in a number of cases, but generally the following passages from the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1 at [14]-[15] state the relevant principles in terms which have been generally accepted: "14. Because the kinds of case in which exemplary damages might be awarded are so varied, it may be doubted whether a single formula adequately describes the boundaries of the field in which they may properly be awarded. Nevertheless, the phrase adopted by Knox CJ in Whitfeld v De Lauret & Co Ltd of 'conscious wrongdoing in contumelious disregard of another's rights' describes at least the greater part of the relevant field. 15. In considering whether to award exemplary damages, the first, if not the principal, focus of the inquiry is upon the wrongdoer, not upon the party who was wronged. (The reaction of the party who is wronged to high-handed or deliberate conduct may well be a reason for awarding aggravated damages in further compensation for the wrong done. But it is not ordinarily relevant to whether exemplary damages should be allowed.) The party wronged is entitled to whatever compensatory damages the law allows (including, if appropriate, aggravated damages). By hypothesis then, the party wronged will receive just compensation for the wrong that is suffered. If exemplary damages are awarded, they will be paid in addition to compensatory damages and, in that sense, will be a windfall in the hands of the party who was wronged. Nevertheless, they are awarded at the suit of that party and, although awarded to punish the wrongdoer and deter others from like conduct, they are not exacted by the State or paid to it." For a recent summary of the relevant principles, see State of NSW v Zreika [2012] NSWCA 37 at [60] - [64] per Sackville AJA, with whom Macfarlan and Whealy JJA agreed.
In awarding aggravated damages I have accepted that they are intended to compensate the applicant for the injuries which he sustained as a result of the circumstances and manner of the respondents' wrongdoing. But those circumstances also reveal, in terms of the passage from Gray at [15] which I have recorded at [28] above, "conscious wrongdoing and contumelious disregard of" the applicant's rights. The primary judge's findings of fact support such a conclusion: the conduct of the respondents was high-handed, vindictive and malicious. It was conduct in respect of which the Court's disapproval should be demonstrated. Accordingly, in my opinion, the applicant's claim for an award of exemplary damages should be accepted.
The primary judge rejected this claim upon the basis that the relevant test was not satisfied because of the context of the assaults and the intoxicated state of the second respondent. It is not clear as to what his Honour was referring in terms of the "context of the assaults". There was certainly no finding that the applicant brought the attack upon himself by provoking the respondents or conducting himself in a manner which would legitimately have justified the assaults upon him.
More significantly, the state of intoxication of the second respondent cannot be a proper basis for a denial of exemplary damages. His intoxicated state may be relevant in determining whether he was aware or conscious of what he was doing. But the primary judge found that he was so aware when, at [38], he concluded that the assaults, including the second respondent kicking the applicant in the face whilst he was on the floor, were intentional acts on the one hand and intended to cause injury on the other. In light of these findings, it must follow that the second respondent, notwithstanding that he was intoxicated, knew full well what he was doing. His later expressions of remorse would support that conclusion. Finally, there was no finding by the primary judge to suggest that the intoxicated state of the first respondent, if he was intoxicated, negatived any claim for exemplary damages with respect to his assault on the applicant.
The position may have been different had there been evidence that the respondents had been charged over the incident and convicted. It is possible that they were - but as there was no evidence to that effect before his Honour, it was necessary for him to proceed upon the basis that there were no such charges which might have ameliorated or even negatived the applicant's claim for exemplary damages.
The second respondent expressed remorse for what he had done after viewing the CCTV footage. That remorse would have been relevant to any charges which may have been preferred against him. In libel cases it has been held that it is appropriate in assessing exemplary damages to take into account the defendant's conduct before, after and during proceedings: Cassell & Co Ltd v Broome [1972] AC 1027 at 1071-1072 per Lord Hailsham LC. Thus an appropriate apology, depending on its terms and when it is made, has been held to be relevant to the assessment of exemplary damages in such cases: Uren v John Fairfax & Sons Pty Ltd at 126 per McTiernan J; at 155 per Windeyer J. On the other hand the failure to apologise may also be relevant in assessing both aggravated as well as exemplary damages: Gacic v John Fairfax Publications Pty Ltd [2015] NSWCA 99 at [108]-[111]; Rogers v Nationwide News Pty Ltd [2003] HCA 52; 216 CLR 327 at [138]; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 71.
There is no reason in principle to think that those considerations should not apply to assault cases where the relevant conduct exhibits (or fails to exhibit) remorse or contrition and/or includes an apology: Vignoli v Sydney Harbour Casino [1999] NSWSC 1113; [2000] Aust Torts Reports 81-541 at [158]-[159] per Bergin J (as she then was); McGregor on Damages (18th ed 2009, Sweet & Maxwell) at 11.040 (p 444).
That brings me to the appropriate quantum of an award of exemplary damages bearing in mind that any "double dipping" must be avoided. In the circumstances, I do not believe that an award of compensatory damages in the sum of $65,000 is sufficient to include a claim for exemplary damages. I would therefore assess as an appropriate amount for such damages, the sum of $20,000. That amount takes into account the second respondent's expression of remorse, late though it was.

The Claim for Future Economic Loss

The applicant sought to challenge the primary judge's refusal to award a cushion in respect of future economic loss. In so doing, his Honour referred to the report of Dr Mason where he expressed the view that the applicant was fit to return to his pre-injury occupation even though he did not wish to work in the Hunter Valley for fear of encountering his assailants again.
At [59] the primary judge noted that the applicant had taken himself out of the mining industry in the Hunter Valley and had moved to the United Kingdom. He took judicial notice of the fact that there are no large scale mining projects in the United Kingdom as there are in Australia. He observed that there are a number of such projects in other states in Australia where the applicant could find work in mining machinery maintenance for which he was, apparently, well qualified.
The reasons given by his Honour for refusing to award a "cushion" are not persuasive. Nevertheless, the difficulty faced by the applicant is that there is no evidence from Dr Mason which is capable of supporting a claim for future economic loss - even in the form of a cushion. True it is, as Dr Mason opined, the applicant suffers from post-traumatic stress disorder. His emotional relationships have been impaired, and he suffers from frequent emotional disturbance. Dr Mason noted that the applicant avoided situations which reminded him of the assault, and that his ability to participate in social situations was diminished because he will not return to situations reminiscent of the assault.
Dr Mason was then asked to answer a number of specific questions. Question 5 sought his opinion as to the applicant's fitness for work and, in particular, for his pre-injury occupation. To that question Dr Mason responded that the applicant had returned to his pre-injury occupation after he recovered from his injuries, and that he believed he was fit to do so. However, he did not wish to continue in his pre-injury work in the Hunter Valley for the reason already referred to.
Question 6 sought Dr Mason's opinion, if he was of the view that the applicant was unfit for work, as to the cause of the loss of his capacity for work and the extent of that incapacity. Dr Mason's response was as follows: "The limitation on [the applicant] returning to work consists of his fear of encountering his assailants again. I believe he could perform the same work in other areas but he could not return to work in the Hunter Valley if he was likely to encounter them again." This answer appears to be to an extent unresponsive to the question, but nevertheless it does not appear to have been followed up in order to seek clarification. It does not assist the applicant on the present issue.
Question 8 sought Dr Mason's opinion as to the applicant's prognosis for the future. He relevantly responded as follows: "I believe [the applicant] will continue to struggle with symptoms of post-traumatic stress disorder. This is a long-term relapsing condition. He will continue to have difficulties when he is reminded of the assault. He is likely to continue to struggle in relationships and may find it much more difficult to settle down … As stated above, I believe he is much more vulnerable to the impact of ordinary life events such as major illness or the loss of a loved one. At such times his psychological reactions are likely to be more extreme than they would have been had there been no assault."
Finally, in Question 10 Dr Mason's opinion was sought as to the applicant's current capacity for work. He responded: "I do believe the patient is fit for pre-injury duties and alternative work as demonstrated by his ability to work since the subject assault. However, I believe he would be afraid to return to work with employers in the Hunter Valley of NSW."
The problem the applicant faces is that no question was directed to Dr Mason as to the effect his post-traumatic stress disorder might have on his ability or capacity to maintain a long-term working relationship with an employer outside the Hunter Valley of NSW and in particular in the United Kingdom where, according to his evidence, he proposed to live in the future. Dr Mason's responses to the questions asked of him seemed to be more related to the social disadvantages which the applicant may suffer in the future as a consequence of his post-traumatic stress disorder. He did not direct himself to the critical issue of the impact of his psychological condition upon his ability to maintain employment in the future. In the absence of that evidence, in my view it is not appropriate to award the applicant any amount, whether by way of a "cushion" or otherwise, for future economic loss.

Conclusion

In light of the foregoing the applicant has been successful with respect to his claim for aggravated and exemplary damages, but has failed in his claim for a cushion for future economic loss. In these circumstances the appellant is entitled to judgment in the sum of $110,500.45 which I will round down to $110,500. I would propose the following orders: 1. Grant leave to appeal. 2. Appeal allowed in part. 3. Set aside Order 1 made by Judge R A Sorby on 27 February 2015 and in lieu thereof enter judgment for the applicant against both respondents in the sum of $110,500. 4. The respondents to pay the applicant's costs of the summons for leave to appeal and the appeal but to have, if qualified, a certificate under the Suitors' Fund Act 1951 (NSW).

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: 09 December 2015

Suitors' Fund Act 1951(NSW)

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