Supreme Court of Tasmania|2004-09-06|Before: Blow J

Roney v Priestman [2004] TASSC 96 (6 September 2004)

CITATION: Roney v Priestman [2004] TASSC 96

Damages - Particular awards of general damages - Tasmania - Facial and psychological injuries - Assault - Impairment of earning capacity.

Torts - Negligence - Essentials of action for negligence - Special relationships and duties - Other cases - Nightclub - Duty to take reasonable steps to protect one patron from foreseeable risk of injury from acts of others - Eviction of troublemakers.

Chordas v Bryant (Wellington) Pty Ltd [1988] FCA 462; (1988) 20 FCR 91; Club Italia (Geelong) Inc v Ritchie [2001] VSCA 180; (2001) 3 VR 447; Guildford Rugby League Football and Recreational Club Ltd v Coad (2001) Aust Tort Reports 81-623, referred to.

Judgment Number: [2004] TASSC 96

1 This is an action for damages for negligence in respect of personal injuries suffered by the plaintiff. On 1 December 1996 she attended, as a customer, a nightclub operated by the defendants. She was assaulted there. She contends that the defendants were negligent in failing to take reasonable care for her safety.

2 The plaintiff went to the nightclub at about 1.30am with two female friends. It was in the basement of a hotel. The entrance was at street level. It was necessary to pay an admission charge at street level, and to enter the club by going down some stairs. There were three security staff or bouncers who were on duty. Their names were John, Mark and Brett. Apparently John's duties required him to spend most of his time at street level, whereas Mark and Brett were required to spend most of their time in the public areas of the club in the basement. The plaintiff and her companions went to the basement where they joined other friends. There was another group of people nearby which included individuals who intensely disliked the plaintiff, apparently as the result of past sexual arrangements and re-arrangements. That group included a couple named Adrian and Nicole.

3 The plaintiff gave evidence, which I accept as truthful and substantially accurate, of three incidents when Adrian and Nicole harassed her and were removed by the security staff. Her evidence was essentially as follows. She was at the bar getting some drinks when Nicole and Adrian approached. Nicole started swearing at her and threatening her. Adrian was encouraging Nicole. The plaintiff got a friend to go upstairs to get the security man named John. He came down, and removed Nicole and Adrian from the premises. About 15 minutes later, the plaintiff was dancing with two friends when Nicole and Adrian approached her on the dance floor. They were bumping her, nudging her, swearing, and threatening her. Two of the security staff removed them. She saw them taken as far as a door near the bar that leads to the stairs to the street. She saw them go out that door. At that stage she saw a man named Grant Jackson standing near the disc jockey's box and laughing. Then she saw Adrian and Nicole come back in. Nicole approached her, hit her to the side of the face, and swore at her. Adrian then grabbed her around the throat. The security officers named Mark and Brett again took Adrian and Nicole away through the door that leads to the stairs to the street.

4 A serious assault that forms the primary subject of this action occurred shortly after the third and final removal of Adrian and Nicole. The assault in question was committed by Grant Jackson. The plaintiff's evidence as to that assault was to the following effect. She again became aware of Grant Jackson standing near the disc jockey's box and laughing. She swore at him. She thinks she told him to "fuck off". He moved towards her. She told him that she knew he and a man named Mark had trashed her car. Jackson said, "Yeah. So what? Your fucking house is next." She told Jackson that he did not scare her, and that she had two brothers who would deal with him. She made a spitting motion towards his face, but did not eject any saliva from her mouth. He lunged at her. To protect herself, she bent down to get under a table. Jackson started kneeing her in the face as she was bent over. He had hold of her, and was thrusting her face down into his knee. He kneed her in the face three times that she can recall. She has a recollection of losing consciousness. She ended up on another part of the floor, away from the table, out in the open. There, Jackson delivered a heavy blow to her face with his fist. She next saw Jackson at a later stage, at street level, when she was leaving the premises.

5 Again I accept the plaintiff's account of these events as truthful and substantially accurate. She gave less thorough and somewhat varying accounts on earlier occasions in a police statement and in an application under the Criminal Injuries Compensation Act 1976. However her version of events was substantially corroborated by another witness, Ms Walker. Ms Walker has been close to the plaintiff at times, but on the night in question was amongst the group that included Grant Jackson, Nicole and Adrian. Ms Walker confirmed that Nicole and Adrian were spoken to more than once by the security staff before the incident that led to their final removal from the nightclub. She confirmed that that final incident involved Nicole approaching the plaintiff and swearing at her, pushing her, shoving her, and threatening her. She gave evidence that, prior to that final incident, she heard Adrian make a telephone call, ask to speak to "Grant", and say, "She's here. Are you coming down?" She said that Grant Jackson arrived after that, and consumed quite a large amount of liquor whilst he was at the club. She said she saw Jackson start hitting the plaintiff; that she thought his right knee came up into the plaintiff's face; and that the plaintiff then fell to the ground, crawled through tables, looked up at her, and "passed out, like semi-unconscious".

6 The only other witness at the trial who was present on the night in question was the second defendant, Mr Beauregard. His evidence was that he did not see the assault by Jackson or the incidents that preceded it, but that he was in the back of the premises, apparently not in a public area, with the security man named Mark, who had got some blood on his shirt when finally ejecting Nicole. He said that he heard the barman call out, "Fight!"; that Mark went into the bar straight away; that he followed; and that, by the time he was able to see what was happening, Mark was already at the door with Jackson, taking him out with someone else's assistance. I accept that evidence. It was consistent with that of the plaintiff.

7 There were about 50 to 70 people in the club at the time of the assault by Jackson. The plaintiff does not contend that the defendants should have had more than three security staff on duty. Her case is that the defendants' duty of care required Adrian and Nicole to be ejected from the club after the first incident involving them, or after the second such incident at the latest; that it was reasonably foreseeable that, whenever the security staff were absent from the main downstairs area ejecting troublemakers, a customer might take the opportunity to do something violent; that the defendants' duty of care therefore required them to minimise the absences of the downstairs security staff by not re-admitting customers who might have to be removed for a second or third time; and that she was injured as a result of the security staff not taking that step to minimise their absences from the downstairs area. She further contends that it was known to the defendants and the security staff that there was a degree of hostility towards her, or the group that included her, from within the group that included Adrian and Nicole; and that it was reasonably foreseeable that there might be an outbreak of violence between the two groups at any time when the security staff were absent from the downstairs area. Counsel for the defendants, Mr Read, acknowledged that the defendants owed the plaintiff a duty of care but, referring to Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 46 - 48, made a submission to the effect that a reasonable nightclub proprietor similarly circumstanced would not have taken any greater steps to protect her. He submitted that there was nothing about the behaviour of Adrian and Nicole that warranted their exclusion from the club prior to them becoming physically violent during the third incident, and that there was no reason to fear that violence might erupt between Jackson and the plaintiff until she swore at him, at which stage the security staff were temporarily absent.

8 As a general rule, the law does not impose a duty to prevent harm to another from the criminal conduct of a third party: Smith v Leurs [1945] HCA 27; (1945) 70 CLR 256; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254. However the Victorian Court of Appeal held in Club Italia (Geelong) Inc v Ritchie [2001] VSCA 180; (2001) 3 VR 447 that a licensed club owed a duty of care to a policeman injured on its premises. It so held on the basis that the club had an ability and duty to control aggressive patrons which created an exception to the general rule. In this case it is common ground that the defendants owed the plaintiff a duty to take reasonable care for her safety while she was on their premises. I need to determine whether that duty of care was breached. It is worth noting what the Victorian Court of Appeal said about licensed clubs in Club Italia. At 457 - 458, Brooking, Charles and Chernov JJA said the following:

"... it is a matter of common sense and experience that, where liquor is to be sold to large numbers of people at nocturnal entertainments extending over a long period of time, there is a danger of drunkenness and violent and other offensive behaviour. There is a general recognition that the use of crowd controllers is usual and (given that there are to be such entertainments) appropriate. What the Club was really doing here was, in the course of its business, creating a potentially dangerous situation on its own premises, as it recognised, even before the night began, by its engagement of five crowd controllers. Crowd controllers are there to control crowds; they are there because of the danger that things will get out of control, notably, one might add, in relation to physical violence. As the regulations already referred to show, one of the functions of the crowd controller - again this is only a matter of common sense and common experience - is to assist in maintaining order by removing disorderly persons from premises. Persons in the position of the Club realise that in the course of their business they are attracting potential trouble-makers to their premises, and they take steps to deal with the resulting danger of violent and other disorderly behaviour. If a person becomes drunk or criminally disorderly on their premises, then it is they who have invited the potential criminal to their premises and created the environment in which the criminal activity has occurred. They are under a statutory duty - we are not here concerned with rights of action for breach of a statutory duty - to expel drunk and disorderly persons and they recognise that they are under a responsibility to maintain order on their premises."

9 The Liquor and Accommodation Act 1990, s62, provides as follows:

"62 - A licensee shall require a person who -

(a) is acting in a violent, quarrelsome or disorderly manner; or

(b) is using disgusting, profane or foul language -

10 There is no suggestion that that section gave rise to a right of action for breach of statutory duty. However a failure to comply with that section can be relied upon as evidence of tending to prove negligence, just as the failure to comply with a traffic regulation can be relied upon as evidence tending to prove negligence: Chordas v Bryant (Wellington) Pty Ltd [1988] FCA 462; (1988) 20 FCR 91 at 102.

11 Whether there was a breach of the defendants' duty of care depends upon the action that a reasonable person in their position would have taken to guard against a foreseeable risk of injury that existed: Nagel v Rottnest Island Authority [1993] HCA 76; (1993) 177 CLR 423 at 431; Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at 454.

12 Jackson had assaulted the plaintiff on an earlier occasion. I infer from Ms Walker's evidence of the phone call made by Adrian that there existed an arrangement for Jackson to attend the club for the purpose of troubling the plaintiff. I am not able to make a finding as to how far he or Adrian thought he might go in causing her trouble. However, there is no evidence that the defendants or any of their staff knew or ought to have known of the previous assault, or of Jackson's plan to trouble the plaintiff. He worked at the club as a bouncer, but was not on duty on the night in question. Assaulting a customer upon the premises on a night off was likely to cost him his job. (In fact it did.) Prior to the third removal of Adrian and Nicole, I do not think it was reasonably foreseeable on the part of the defendants or their staff that Jackson would assault the plaintiff or anybody else. Although he had been drinking heavily, there is no suggestion that his conduct had been quarrelsome or disorderly, let alone violent, nor that he had shown any likelihood of turning violent.

13 However I think it was reasonably foreseeable that someone, though no-one in particular, in the group that included Adrian and Nicole might continue the harassment of the plaintiff after their removal from the premises, particularly if an opportunity to do so without being observed by the security staff arose as a result of all of them being temporarily absent at the same time. There is no evidence that anyone from the other group displayed any hostility towards the plaintiff prior to the final encounter with Jackson, nor is there any evidence that anyone from that other group displayed any hostility towards any other member of the plaintiff's group. However there is evidence that a risk of violence to the plaintiff was known to the defendants and their security staff. Ms Walker gave evidence that, about six weeks before the night in question, she was at the club after closing time drinking with both defendants, Grant Jackson, and the security men named Mark and Brett. She gave evidence that the plaintiff was discussed; that there was discussion of how much she was hated; and that it was said that she "would get what was coming to her". Mr Beauregard confirmed that he was present at that conversation, but said that he did not realise the extent of the bad blood between the two groups prior to the assault by Jackson. On the basis of that evidence, I find that the defendants and their security staff ought to have foreseen the possibility that Adrian and Nicole were not alone in their hostility towards the plaintiff, and that someone else from their group might harass or injure her after their removal. That was a risk that the defendants ought to have taken reasonable steps to obviate.

14 An expert in crowd control and crowd controller training, Mr Zalewski, gave evidence for the plaintiff. He expressed the opinion that, knowing of the risk of violence between two groups of customers, the management should ideally have refused entry to at least one group or, alternatively, not re-admitted any individuals from either group who were ejected because of their conduct towards the other group.

15 Quite apart from the risk of injury to the plaintiff from another member of the group, there was a general risk of injury to some customer during the temporary absence of the security staff. That temporary absence could have been avoided by the security staff ejecting and excluding Adrian and Nicole after the second incident. The evidence does not establish whether they were then ejected and re-admitted, or whether they were simply taken out of sight and spoken to before being allowed to return to the dance floor. Given that they had resumed their harassment of the plaintiff after the first incident, I think it was reasonably foreseeable that they would resume it again if not excluded after the second incident, and that it would be necessary for both the security men based downstairs to absent themselves, possibly for a matter of minutes, in order to remove them if a third incident occurred. Given that s62 required them to be made to leave even if their behaviour was merely quarrelsome or disorderly, I think that the defendants' duty of care to patrons generally required the couple to be excluded after the second incident. Otherwise they might have taken up more and more of the security staff's time, to the risk of customers generally. Mr Beauregard gave evidence to the effect that it was the policy of the house to exclude troublemakers only after the use of physical force.

16 In my view the defendants' duty of care required them not just to employ an adequate number of security staff, but also to take reasonable steps to ensure an adequate level of supervision and control of their customers by the security staff whenever practicable. By failing to exclude Adrian and Nicole after the second incident, the defendants' security staff created a risk that they would need to remove them on a third occasion, leaving the customers temporarily unsupervised and unprotected. Having regard also to the known risk of violence to the plaintiff and the general risk of violence between customers, I think that the duty of care was breached. However, despite Mr Zalewski's evidence, I am not persuaded that the re-admission of Nicole and Adrian after the first incident involved a breach of the defendants' duty of care. With hindsight, one can say that it would have been better if they had not been re-admitted. However individuals do calm down on occasions, and no physical force was used during the first incident. In Guildford Rugby League Football and Recreational Club Ltd v Coad (2001) Aust Tort Reports 81-623, the New South Wales Court of Appeal held that a club had not breached its duty of care when it did not eject a patron who had behaved aggressively, twice standing on a table, but who had apparently calmed down. I think the decision to re-admit Adrian and Nicole after the first incident may have involved misjudgment, but did not involve negligence.

17 In my view the assault by Jackson was provoked by the plaintiff. She knew he had assaulted her in the recent past. She had seen the security staff leave with Adrian and Nicole. In their absence she publicly swore at Jackson, accused him of trashing her house, said that he did not scare her, threatened to get her brothers to deal with him, and made a spitting motion towards him. For the sake of her own safety, she should not have said or done any of those things. But for that provocative conduct, I think Jackson would not have assaulted her. In my view the plaintiff's provocative conduct amounted to contributory negligence.

18 The defendants went a long way towards discharging their duty of care. They employed an adequate number of security staff. The security staff were attentive to their duties. Their absence from the public area of the nightclub was very brief. The risk of violence occurring during that brief absence was quite small. By comparison, the provocative conduct of the plaintiff made it very likely that she would be assaulted. However the plaintiff had little time to think, and was in a stressful situation that must not have been conducive to calm deliberation. The defendants, on the other hand, had ample opportunity to consider their policy as to the exclusion of troublemakers, and to take account of the fact that the plaintiff was hated by other customers and likely to be attacked. Taking all those matters into account, and taking into account the relative insignificance of the harm done by assailants other than Jackson, I think that the plaintiff should bear the greater share of the responsibility for her injuries. I think it would be just and equitable to reduce her damages by 60 per cent accordingly.

19 The plaintiff is entitled to recover damages in respect of the minor assaults by Adrian and Nicole during the second and third incidents, and in respect of the serious assault by Jackson. The harm inflicted by Adrian and Nicole was almost insignificant. The injury inflicted by Jackson was very serious.

20 The plaintiff was taken to the Royal Hobart Hospital by the police. She was treated there as an outpatient. She was not admitted. She returned there several times for outpatient treatment over the following weeks. In the subsequent years she has seen private general practitioners some 7 times in relation to her facial injury, and has seen a psychiatrist twice in relation to the psychiatric consequences of her injury.

21 The plaintiff was x-rayed at the Royal Hobart Hospital. The radiologist reported a probable fracture of the zygoma in the area of the right orbital floor. Whether the zygoma was actually fractured or not is of no present consequence. It is the plaintiff's symptoms and her prognosis that are significant. She suffered damage to the right infraorbital nerve, with lasting consequences. She also suffered bruising, swelling and grazes to the right side of the face, all of which resolved in a matter of weeks. More than 7 years after the assault, she suffers from feelings of tightness, tenderness, numbness and pins and needles to areas on the right side of her face. She cannot feel her upper right teeth and gums. She does not sleep on her right side because she now dribbles if she sleeps in that position. She sometimes spills drinks because of the impairment of sensation on the right side of her mouth. She now chews on the left side and not the right. She could have surgery to relieve the facial symptoms. At best, such surgery could improve her symptoms but not eliminate them. There is a reasonably good chance of surgery partially relieving her symptoms, but no doubt that some risk that surgery would be unsuccessful. The plaintiff, quite reasonably in my view, has been unwilling to undergo such surgery so far. There is a possibility, but not a probability, that she might have the appropriate surgery at some stage in the future.

22 The plaintiff was living alone at the time of the relevant events. Initially she was too scared to live alone in her home. She went back there after a couple of days to get some clothes, but stayed with friends until about 10 days after the relevant events. She continued to live there until a prosecution of Jackson was completed in the Magistrates Court in June or July 1997. Soon after that, she obtained a transfer of her employment to Launceston, and moved to live there.

23 At the relevant time the plaintiff was working for a supermarket in a Hobart suburb, filling shelves at night. She was away from work for at least three weeks as the result of her injuries. I accept that, as a result of the attack on her at the nightclub, she has since been socially withdrawn, to a degree. However I accept Mr Beauregard's evidence that she paid a visit to the nightclub about three weeks after the attack on her. On the basis of his evidence, I also accept that she had resumed playing indoor cricket at about that time. A psychiatrist, Dr Ratcliff, gave evidence for the plaintiff. He expressed the opinion that, as a result of the events of the night in question, she is suffering an adjustment disorder. However his opinion was based on inaccurate information and/or an inaccurate understanding as to the effects of the attack on her thoughts in relation to her housing, employment, social activity, and sporting activity. Once the true facts were made known to Dr Ratcliff, he accepted that the plaintiff's reactions to the relevant stressors were probably within the range one would normally expect, the consequence of that being that a diagnosis of adjustment disorder would be inappropriate. I therefore find that the plaintiff does not suffer from an adjustment disorder, and has not done so. However her psychological reaction to being assaulted is relevant to the assessment of her damages. It is part of the suffering for which she must be compensated.

24 The plaintiff was exposed to other emotional stressors before and after the night in question, most or all of which emanated from individuals hostile to her. Dr Ratcliff gave evidence, which I accept, to the effect that she was vulnerable to the onset of psychological symptoms. Of course the "eggshell skull rule" applies just as much to psychological vulnerability as it does to physical vulnerability. See, for example, Commonwealth v McLean (1996) 41 NSWLR 389 at 404.

25 Since the events in question, the plaintiff has been unwilling to live or work in places where she does not feel safe. She does not consider Hobart a safe place, and therefore will never return to live in Hobart, and will not normally go to Hobart, although she apparently did so for the purpose of seeing a medical expert engaged on behalf of the defendants. She does not like big cities, but did spend some six weeks in Melbourne at one stage. She is not willing to work in the sorts of places that have bouncers, except perhaps in areas closed to the public. She no longer normally frequents the sorts of places that have bouncers, though she has gone out to nightclubs and gambling venues on occasions. These are all aspects of the plaintiff's continuing emotional reaction to the events of the night in question.

26 She has had dreams and daydreams about harming one of the women who was hostile to her. Her facial symptoms are an ongoing reminder of the attack upon her, and therefore have the effect of perpetuating her emotional reaction to that attack. I accept evidence given by Dr Ratlciff to the effect that the plaintiff's symptoms are likely to reduce to some degree if she has facial surgery, and that they are likely to reduce to some degree when this litigation reaches a conclusion.

27 The plaintiff is 36 years old. Her earning capacity was quite low before she was injured. She left school at the end of Grade 10. She worked as an assistant in a hairdressing salon, but gave up that work because she was allergic to peroxide. She worked as a bar attendant in a number of hotels over the years. She had a job as a textile worker in Launceston for two years, was retrenched, but was re-employed in that position for a further five years. Thereafter she worked in more hotels as a bar attendant. In 1995 she moved to Hobart and worked for a transport company in a full-time position for about 12 months. That business collapsed. She then obtained work as a bar attendant at a hotel. Next she worked as a cook at a golf club. It was after that that she started work at the supermarket as a night fill worker. In the years before she was injured, her earnings were often so low that she supplemented them by obtaining social security benefits.

28 After moving to Launceston in mid-1997, the plaintiff continued working for the supermarket company, filling shelves at night, for about a year. She left to take up a position at a hotel, working as a cook. After about 12 months there, she was offered a position running the kitchen at another hotel. She worked there for some months, but then her employer went broke. Thereafter she took up a position operating the kitchen of a golf club. The arrangement with the golf club was that she was to carry on her own business, supplying meals at prices fixed by the club. She carried on that business from June 2000 until October 2002, but she was required to work very long hours, and the business became unprofitable. She loved that work, but had to abandon it. She approached a number of prospective employers seeking work, without success. In or about November 2003 she obtained employment as a textile worker with James Nelson (Tasmania) Pty Ltd. In that employment she earns about $450 per week after tax. There is a risk that she will be retrenched, since the company's business is shrinking, and it has been reducing staff levels. From time to time since December 1996 the plaintiff has supplemented her earnings with social security benefits, having been eligible for them when she has been either unemployed or not in full-time employment.

29 The pattern of the plaintiff's earnings and social security payments can be seen from the following table, which I have compiled from her income tax returns and assessment notices.

30 When she was injured, the plaintiff was working part-time. She averaged about 20 to 25 hours per week. The best indication I have of her earnings at that time is that her income from the same employer doing similar work for the year to 30 June 1998 was $7,400 gross, or $6,730 after the deduction of tax. This represents about $130 per week after tax. I assess her loss of earnings for the few weeks that she was off work following her injury in the sum of $400.

31 The impact of the plaintiff's injuries on her earning capacity following her return to work cannot be so easily quantified. In my view the only appropriate approach is to assess sums to compensate her for the general impairment of her earning capacity. Because of the psychological effects of the attack on her, she has not been prepared to seek employment as a bar attendant, even when unemployed for an extended period. For the same reasons, she will never be suitable for security work. She had not done any security work in about 11 years in the workforce prior to the night she was attacked, but there may have been some possibility that she would have been attracted to such work one day. As an indoor cricketer, I expect she was reasonably fit. With her experience in bar work, there is a chance that security work might have been available to her. Despite her lack of formal qualifications, she has had valuable experience working as a cook and as a textile worker. Working full-time, she is capable of earning about $450 per week after tax. Before she was injured, she was not able to exploit her earning capacity fully, apparently as a result of the state of the labour market. The position is further complicated by the fact that she used to receive cash income and cash gratuities when doing bar work - income that was apparently not taken into account when her tax returns were compiled by her accountants. No doubt there are bars in the Launceston area that are sufficiently genteel and trouble-free for the plaintiff not to feel unsafe in them, but I think she might have difficulty obtaining employment in such places, having regard to the downmarket nature of most of the hotels she has worked in.

32 I am satisfied that her capacity to undertake bar work has been significantly impaired, and is likely to remain so for the rest of her life. Less significantly, I am satisfied that her capacity to undertake security work has been forever destroyed. She is entitled to be compensated accordingly. Allowance has to be made for the usual adverse contingencies, including mortality, illness, retirement, and voluntary absence from the workforce. It is unlikely that the plaintiff would be interested in absenting herself from the workforce to bring up children since she is a lesbian, and has been at all material times. On the other hand, her work history shows that she has undergone substantial periods of unemployment and under-employment. I therefore think I should make much greater than usual allowance for those adverse contingencies. However she is likely to mitigate her losses by obtaining social security payments. She will not become eligible for an age pension until her 65th birthday: Social Security Act 1991 (Cth), s23(5D). Given her financial position and earning capacity, I expect she will have little choice but to remain in the workforce until then.

33 Doing the best I can, I think it is appropriate to compensate the plaintiff for the impairment of her earning capacity since her return to work in December 1996 on the basis that she has lost 15 per cent of her earning capacity; that if fully employed since December 1996 she would have earned an average of $350 per week after tax; that she is presently capable of earning $450 per week after tax when working full-time; and that her working life will end when she is 65 years old. Accordingly, I assess her damages for the impairment of her earning capacity since 22 December 1996 as follows:

The multiplier of 653.4 is derived from Luntz, Assessment of Damages for Personal Injury and Death, 4th ed at 699, Table 4D.

34 It is common ground that I should assess damages for the loss of employer superannuation contributions in a sum equal to 9 per cent of the sums awarded for past economic loss and the impairment of the plaintiff's earning capacity. Taking into account the $400 awarded for the plaintiff's first three weeks off work, I calculate damages under this head as follows:

35 The medical expenses incurred by the plaintiff as a result of the assault totalled $330.60, ignoring Medicare benefits. In the 7 years 9 months since the assault she has not taken any prescription medication, but has been using Aspro Clear to relieve her facial symptoms. Her evidence was that she uses a box of these every two or three weeks, and that they cost $5 or $6 per box. I estimate she has used 134 boxes. I allow $5 per box, making a total of $670.

36 Damages for future pharmaceutical expenses were claimed in respect of Aspro Clear only. They were claimed on the basis of ongoing expenditure at the rate of $1.27 per week, which is reasonable. According to the table of multipliers that I have referred to, the appropriate multiplier for a 36 year old woman, to compensate her for expenditure for the rest of her life, allowing for early mortality, is 723. Allowing for the possibility that use of these tablets will diminish, I assess the plaintiff's damages for future pharmaceutical expenses in the sum of $700.

37 It is common ground that the appropriate facial surgery, if undertaken now, would cost $4,000. I must allow less than half that amount since the plaintiff will probably not have that surgery. I must also take into account the fact that any damages awarded in respect of such surgery can be invested at interest until the surgery is paid for, at some indefinite time in the future. I allow $800 for possible future surgery.

38 Taking into account all the matters that I have referred to, I think an appropriate sum by way of general damages to compensate the plaintiff for her pain and suffering and loss of amenities is $22,000.

39 I therefore assess the plaintiff's damages as follows:

40 As stated earlier, this sum must be reduced by 60 per cent to allow for the plaintiff's contributory negligence. Judgment will therefore be entered for the plaintiff against the defendants in the sum of $38,406.

Accommodation Act 1990

Roney v Priestman [2004] TASSC 96

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Judgment (52 paragraphs)

Roney v Priestman [2004] TASSC 96 (6 September 2004)

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