Tilden v Gregg

Court of Appeal (NSW)|2015-05-28|Before: McColl JA, Macfarlan JA, Meagher JA

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] On 28 February 2010, the appellant was punched in the face by Mr Gregg (the first respondent) at the Ettalong Memorial Bowling Club. That event occurred after a period of verbal abuse by Mr Gregg and an offensive retort by the appellant. The appellant brought proceedings for assault against Mr Gregg and for negligence against the second respondent as occupier and licensee of the premises. The appellant obtained summary judgment against the first respondent. North DCJ dismissed the claim against the second respondent, holding that the Bowling Club had not breached its duty of care and that it was not established that but for the alleged negligence the assault would not have occurred. The damages for which the first respondent was liable were assessed at $37,111. The damages for which the second respondent would have been liable were assessed at $8,227. The appellant appealed against the finding of no liability in favour of the second respondent and the assessment of damages as against both respondents. The issues to be determined were: whether the primary judge erred in finding that the second respondent had not breached its duty to take reasonable care to prevent injury arising from violent or disorderly conduct by patrons on the premises; whether the primary judge erred in finding that the appellant had not established factual causation; whether the primary judge erred in his assessment of general damages/non-economic loss; whether the primary judge erred in not awarding aggravated and exemplary damages as against the first respondent; whether the primary judge erred in his assessment of damages for past and future domestic assistance; and whether the primary judge erred in his assessment of future treatment expenses. The court held, dismissing the appeal: (Per Meagher JA, McColl and Macfarlan JJA agreeing) In relation to (i): The Bowling Club's knowledge that the first respondent could be argumentative and quarrelsome did not make it necessary to instruct its staff to increase their supervision of his behaviour. Although in some circumstances it may be necessary for an occupier of licenced premises to inform its staff of specific concerns about a patron based on past behaviour, the evidence in this case did not show that such a precaution was necessary: at [24]. In relation to (ii): It was not established that increased supervision by staff or coverage by CCTV would have prevented the assault, which, on the evidence, occurred suddenly: at [33] Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 applied. In relation to (iii): The primary judge's assessment of the nature and extent of the appellant's injury depended to a significant extent on whether his evidence was accepted. In light of surveillance footage, the appellant's evidence was not accepted. That conclusion was available and not contradicted by other evidence: at [56] In relation to (iv): In light of the appellant's offensive comment to the respondent and the respondent's subsequent criminal conviction for the assault, the primary judge did not err in not awarding exemplary damages: at [64], [66]. There was no error in the primary judge's refusal to award aggravated damages, given his finding that the appellant had exaggerated the injury he sustained as a result of the assault: at [65]. State of New South Wales v Zreika [2012] NSWCA 37; Gray v Motor Accident Commission [1998] HCA 70; 195 CLR 1 considered. In relation to (v): The primary judge did not err when assessing damages for past and future domestic care. The evidence of Ms Tchan, an occupational therapist, on which the appellant relied, was dependent on his evidence and assumptions made as to his functional abilities. The surveillance footage, as well as parts of Ms Mortimer's and the appellant's evidence, showed the appellant was able to perform most of the activities for which Ms Tchan had made allowance: at [78]. In relation to (vi): The amounts awarded for future treatment expenses are consistent with the primary judge's principal findings, which were not shown to involve error: at [81].

Judgment

McCOLL JA: I agree with Meagher JA.
MACFARLAN JA: I agree with Meagher JA.
MEAGHER JA: On 28 February 2010 the appellant was drinking with a friend in the open air 'old smoking area' at the Ettalong Memorial Bowling Club (the Bowling Club). The two men were seated at a table with their backs to a brick wall. The first respondent (Mr Gregg) was seated nearby. Sporadically over a period of about 20 minutes Mr Gregg verbally abused and goaded the appellant and his friend. After what the appellant described as a "lot of niggling", he said to Mr Gregg words to the effect, "You only like to hit disabled people and women". In response Mr Gregg punched the appellant in the face. His head went backwards hitting the brick wall. Fortunately his injuries were not life threatening.

The proceeding at first instance and the issues on appeal

The appellant brought proceedings for assault against Mr Gregg and for negligence against the second respondent as occupier of, and the entity conducting, the licensed premises. In May 2013 the appellant obtained summary judgment against Mr Gregg. His claim against the second respondent, and the assessment of damages as against Mr Gregg, were determined by the primary judge (North DCJ): Tilden v Gregg (District Court, (NSW), 26 May 2014, unrep).
His Honour dismissed the claim against the second respondent, holding that it was not negligent and that the negligence alleged did not cause the harm which the appellant sustained. The damages for which Mr Gregg was liable were assessed at $37,111 (ignoring cents). That assessment included $20,000 as general damages. Although claimed, no award was made for aggravated or exemplary damages. The primary judge also assessed the damages for which the second respondent would have been liable had the claim against it not been dismissed. Those damages were assessed at $8,227 (ignoring cents). The award of those damages, and the determination of the second respondent's liability, were subject to the provisions of the Civil Liability Act 2002 (NSW). The liability of Mr Gregg was not because it was in respect of an intentional act (s 3B(1)(a)).
The appellant challenges the primary judge's findings as to breach of duty and causation in relation to the second respondent and his Honour's assessment of the damages recoverable from each respondent.

The liability of the second respondent as occupier of the Bowling Club

Uncontroversial facts

The appellant worked for the State Rail Authority (SRA) for some 25 years from 1973. In May 1979 he injured his lower back in a fall. He ceased heavy duties in 1993. In March 1997 a lumbar spinal fusion was performed. In December 1998 the appellant was medically retired from the SRA. He underwent spinal decompression surgery in 2001.
At the time of the assault the appellant was living in a granny flat in Umina with his ex-wife and daughter, who occupied the main house on that property. He and Mr Gregg were members of the Bowling Club and of its darts club. At some point before February 2001 there was a dispute involving the loss of funds raised by a darts club raffle. A consequence of that dispute was that Mr Gregg developed significant animosity towards the appellant and from time to time made verbal threats towards him.
28 February 2010 was a Sunday night. There were approximately 30 patrons in the Bowling Club. The staff on duty included the duty manager, Mr Stephenson; a security officer, Mr Karhu; and bar and general duties staff. The configuration of the drinking lounge was such that it was not possible for staff in the lounge area to see patrons seated at tables in the outside 'old smoking area' and there was no closed circuit television (CCTV) camera recording that area.
There were procedures in place for monitoring the behaviour of patrons. In addition to bar attendants there were two general duties staff (who collected glasses and ashtrays), one looking after the internal areas and the other looking after the external and gaming areas. Both bar and general duties staff were required to make the duty manager or security officer aware of incidents suggesting intoxication or involving quarrelsome behaviour.
Mr Stephenson's practice was to "do the rounds" (which included walking through the 'old smoking area') approximately once every 30 minutes. Mr Karhu's routine was to walk around the inside and outside areas "keeping an eye on everyone and everything that's going on". On the night in question he inspected the outside area every 30 to 45 minutes.
At about 9pm the appellant and his friend, Mr Murphy, were seated at a table in the 'old smoking area'. Mr Gregg came and went from another table which was about four or five metres away. Each of them had consumed alcohol. None was in such a state as to justify the second respondent removing him from the premises or refusing to serve further alcohol. After a period of "sporadic verbal abuse" (in which Mr Gregg said things such as, "what the fuck are youse doing here?" or "what are youse looking at?"), Mr Gregg assaulted the appellant.
The assault was described by Mr Murphy (referring to the first respondent as Rolly and the appellant as Ross): A. I'd just come back with a beer, with a round, and I sat down and he said something and I said basically the words, "Just fuck off, Rolly. I've had enough. Go away", sort of thing. With that he stood up and I thought he was coming to confront me. So I actually put my beer down on the table and sort of steadied myself because, you know, he came up to the face, but as he approached the table, he stopped Ross, like directly in front of Ross. Q. Then what happened. A. Along the lines of, "Well, let's see what you're made of", or something he said to Ross and Ross basically said in return, "You only hit disabled people or women", and then within that he went wallop. I went to get out of the chair and before - just as I got out of the chair, he went to hit Ross again, but I sort of just got to him then. He did connect with Ross again, but it was only just a very light punch the second time.
There was some evidence concerning the prior behaviour of Mr Gregg. Mr Murphy, who held a Responsible Service of Alcohol (RSA) certificate, was a committee member and director of the Bowling Club between about 2007 and 2009. Meetings of that committee considered supervisors' reports. On two occasions reference had been made in such reports to Mr Gregg having been "quarrelsome or argumentative". There was no suggestion that disciplinary action had been or should have been taken against him by the Bowling Club. Nor was it suggested that Mr Gregg had been or was likely to be aggressive or violent in the Bowling Club.
More significantly, in answer to a notice to admit facts served on the respondents (as defendants in the proceeding below), the second respondent did not admit that, as at 28 February 2010, Mr Gregg had a history of: a. Violent Behaviour. b. Criminal convictions for violent behaviour. c. Violent behaviour at the Second Defendant's Club. d. Engaging in quarrelsome behaviour at the Second Defendant's Club. In its notice disputing facts, the second respondent also did not admit the facts in c. and d. were known to it or its servants or agents as at that date. However, it did not respond in relation to facts a. and b. and accordingly was to be taken to have admitted those facts were known to it as at February 2010. What that "violent behaviour" had involved and when it had occurred was not shown to have been known by the Club or explored in the evidence (except for a hint that it may have included allegations of domestic violence).

The appellant's case at trial

Relying upon the formulation of the duty of an occupier of licensed premises in Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 at [26], the appellant submitted that the second respondent owed him a duty to take reasonable care to prevent injury to him from the violent, quarrelsome or disorderly conduct of persons who had been allowed to enter the Bowling Club. In the circumstances referred to above it was said that the exercise of reasonable care required that the second respondent inform the duty manager and/or the security officer of Mr Gregg's propensity for violent behaviour and of the need to keep an eye on him by increasing the frequency of their inspections of the 'old smoking area'. It was also argued that there should have been a CCTV camera installed to cover that area.
It was submitted that the taking of these additional steps would have "greatly increased the likelihood of early detection of the escalating aggressive and threatening behaviour" by Mr Gregg and would have "likely prevented the ultimate assault". This was so either because Mr Gregg would have been removed from the premises before the assault occurred or would have been deterred from acting as he did because of the presence of staff or the visibility of his conduct to a CCTV camera.
It was not part of the appellant's case that Mr Gregg should have been refused entry to the premises in the first place or that, because of his state of intoxication alone, he should have been removed from the premises before the assault occurred.

The reasoning of the primary judge

The primary judge accepted that the second respondent owed the appellant a duty "to take reasonable care to prevent him being attacked by other persons who are aggressive, or are likely to be aggressive because they are affected by alcohol": [131]. His observation in [166] that he did not find there was any "foreseeable risk of harm" must be understood as directed to the question of breach (which was to be addressed in accordance with s 5B) and whether the second respondent was negligent in not taking the particular precautions contended for by the appellant.
He found that the second respondent was not negligent in failing to inform the duty manager and/or security officer that it would be necessary to keep a particular eye on Mr Gregg: [162]; and that it was not negligent in failing to have someone patrolling the outside area more frequently; and in omitting to install a CCTV camera directed to that area: [159].
Also, the primary judge was not satisfied that, had either or both of these precautions been taken, the assault would have been prevented. He concluded at [157]: … In the circumstances of this case even accepting that there was sporadic verbal abuse over some 15 to 20 minutes the assault itself took place in a very short compass of time. Even if there had been CCTV on the area of the incident it would not have given bar staff time to react to the assault by the first defendant. The sporadic abuse took place over 15 to 20 minutes with the first defendant and the plaintiff with Mr Murphy being separated by some distance. Anyone looking at this on a screen, or indeed through a window, would not necessarily know that something was amiss. The assault itself was very quick … . and at [162]: … given the way in which the assault occurred, unless Mr Stephenson or Mr Karhu had lingered in the vicinity of the first defendant it is unlikely that they would have foreseen an assault. There was sporadic verbal discourse between the first defendant and the plaintiff and Mr Murphy over some 15 to 20 minutes but it was talking and no other aggressive actions were undertaken until the defendant walked across and struck the plaintiff.

The challenge to the finding as to breach

On appeal the appellant repeated the submissions in [16] as to the precautions that it contended should have been taken by the second respondent in the exercise of reasonable care. It was said that there was no factual basis for the primary judge's conclusion at [159] that it was "not practical or feasible to have security on a quiet Sunday night" patrolling more frequently. It was also said that contrary to the finding in [162], the fact of the time in question being a quiet Sunday night was not relevant to whether a reasonable occupier of club premises would have advised its staff that it was necessary to keep a particular eye on Mr Gregg.
The primary judge referred to three factors as supporting his conclusion that the exercise of reasonable care did not require that the duty manger and/or security officer pay particular attention to Mr Gregg. First, there were no disciplinary proceedings or other actions taken against Mr Gregg in relation to any conduct in or outside the Club: [162]. Secondly, the unrecorded mentions in Board meetings to his being argumentative or quarrelsome did not make it necessary to have him constantly watched: [163]. Nor did knowledge of his having a history of violent behaviour and criminal convictions in circumstances where there was no knowledge of what that involved or when it had occurred and no evidence of any actual misbehaviour within the confines of the Club: [164].
In my view that conclusion was justified on the evidence. Whilst it can be accepted that in some circumstances the exercise of reasonable care may require that the occupier of licenced premises inform its staff of some specific concern about a patron based on his or her past behaviour, the evidence in the present case is not shown to have required such action. Indeed Mr Murphy's evidence suggested that the question of keeping "a stronger eye" on certain members because of their conduct as reported in a supervisor's weekly or monthly report was discussed at Board level and that in those discussions Mr Gregg was not identified as a person requiring such attention.
The appellant's argument that the second respondent should have increased the frequency of inspections by its duty manager or security officer depended on there being some good reason for doing so. The following evidence of Mr Stephenson was relied upon: Q. Had you been told that Mr Gregg had some background of quarrelsome behaviour in the club or trying to goad people in the club, would you have changed the frequency of your attendances or your keeping an eye on him that night? A. If I had any reason to believe that there could be a potential incident then, yeah.
That answer begged the question whether the description of Mr Gregg communicated by the committee would have provided reason to believe that there could be a potential incident. That question was not asked. Mr Stephenson's evidence was that he had been working at the Bowling Club since 2006, that the appellant and Mr Gregg were known to him and that he was not aware of either of them exhibiting violent or aggressive behaviour at the Club before the incident.
Finally, the appellant's case as to the installation of a CCTV camera in the outside area was not made on the basis that such a camera should have been continually monitored. Rather it was said that the presence of the camera would have been sufficient to deter the type of conduct that occurred and that it was reasonable to install such a camera for that purpose. The primary judge did not address this argument. He did, however, conclude that even if such a camera was installed and monitored, it would not have prevented the assault, which happened suddenly and in circumstances where there were other people in the vicinity of the appellant and Mr Gregg during most of the period in question: [159], [160]. It is not self-evident that the exercise of reasonable care required the installation of a CCTV camera as a deterrent only.
The primary judge is not shown to have erred in concluding that the second respondent was not negligent.

The challenge to the finding as to factual causation

Subject to the "exceptional case" provided for in s 5D(2) of the Civil Liability Act, a plaintiff must establish on the balance of probabilities that but for the defendant's negligence, the harm suffered would not have occurred: Adeels Palace at [45], [53]. The appellant contended that factual causation was made out in two ways. First, it was said that, had the frequency of inspections or walk-throughs been increased, it was likely that the Club's staff would have detected Mr Gregg's abusive behaviour before the assault. On their encountering that behaviour it was also likely that steps would have been taken to eject Mr Gregg. Secondly, it was said that the increased presence of staff and/or the presence of a CCTV camera, would have acted as a deterrent, making it less likely that Mr Gregg would have assaulted the appellant. The primary judge rejected the first of those arguments on the basis that the assault was, in the light of what had preceded it, an unpredictable and sudden occurrence: [159], [162].
That conclusion is supported by the evidence of the appellant and Mr Murphy, who had an RSA certificate and had been a member of the Bowling Club board for about two years.
Mr Murphy was aware that Mr Gregg could be argumentative and quarrelsome at times. He gave the following evidence: Q. You didn't think he was going to come over and belt Mr Tilden though, did you? A. No. … Q. Sorry. Before he approached the table -- A. Yes, correct. Q. -- you didn't think that he was going to come over and belt anyone, did you? A. No. Q. Indeed, had you thought that, you would have gone and said to the security guard, "Listen, this bloke is a menace. Get him out of here"? A. That's correct. Q. You didn't do that? A. No. Q. You made no complaint to the staff at all before the assault occurred? A. No.
The appellant's evidence was to the same effect. He was aware that there was a security guard in the Club. He explained why he did not go and report Mr Gregg's conduct to that guard before the assault: Q. Because you didn't believe that it was going to escalate into the sort of vicious assault that it was, did you? A. That's correct. Q. You just thought this was Mr Gregg mouthing off at you? A. That's correct. Q. And that that's where it would end? A. That's - yeah. Q. The assault happened - I think you used the phase - in a split second? A. In a split second, yeah. Q. He came over to you and - sorry, you said something to him about, "You like to hit disabled people and women", words to that effect? A. Words to that effect, yes. Q. That was a pretty offensive thing to say, wasn't it, on your part? A. It was offensive, but common knowledge [I'm] disabled, so - -
In the face of that evidence the "but for" test of factual causation was not established. If there had been more frequent walk-throughs the duty manager or security officer would not have seen or heard any more than was seen or heard by the appellant and Mr Murphy. On their evidence that would not have resulted in either concluding that it was necessary to "head off trouble" by ejecting Mr Gregg. At its highest the appellant's case was that those inspections might have resulted in one of the staff intervening. That is not sufficient: Adeels Palace at [56].
Nor is it likely that the presence of a CCTV camera would have prevented the exchanges which occurred or Mr Gregg from assaulting the appellant. Again, at its highest, all that can be said is that the camera might have deterred such conduct. However, it is more likely that it would not have done so. The primary judge found that there were other patrons in the outside area, including Mr Murphy. Even without a CCTV camera, there were going to be witnesses to whatever occurred and the certain fact of discovery did not deter Mr Gregg from responding with violence to the appellant's remark.
The challenge to the primary judge's findings on causation also should be rejected.

The findings of the primary judge

The primary judge summarised the damages he awarded against Mr Gregg and would have awarded against the second respondent at [213] as follows (ignoring cents): Head of Damage 1st Defendant 2nd Defendant (common law) (CLA) General damages/non-economic loss $20,000 0 Aggravated and exemplary damages 0 0 Past treatment expenses $5,227 $5,227 Home modifications equipment 0 0 Past domestic assistance and attendant care $7884 0 Future domestic assistance and attendant care 0 0 Future Treatment expenses $4,000 $3,000 Total $37,111 $8,227

The appellant challenges the primary judge's assessments of general damages/non-economic loss (each respondent), aggravated and exemplary damages (Mr Gregg only), past and future domestic assistance and attendant care (each respondent) and future treatment expenses (each respondent).

General damages/non-economic loss

At the time of the assault the appellant had an extensive history of back problems which had resulted in a lumbar fusion and decompression surgery. He also suffered from severe depression for which he had been treated by a psychiatrist and prescribed anti-depressants. The appellant claimed that as a result of the assault he sustained injuries to his cervical spine, an aggravation of his pre-existing low back injury, pain in the face and mouth and the aggravation of his psychiatric problems.
Specifically he complained of pain in his neck, which resulted in radiating pain particularly in the upper part of his left arm, and that his existing low back pain and left sciatic pain had worsened. As a result of the assault and that increased pain, the appellant claimed to have become crankier and that he suffered mood swings. He complained to Dr Dinnen, a consultant psychiatrist who he saw in July 2013, that he was attending the Bowling Club less frequently than before (about half as much) and felt apprehensive when he was there.
The appellant gave evidence as to the extent of the pain he experienced and its effect on his ability to undertake the activities of daily life. He also reported the extent of that pain and his injuries and their effect to medical and rehabilitation experts for the purpose of their preparing opinions for use in the proceedings. There was surveillance film evidence obtained by the second respondent which showed the appellant driving his car, attending to shopping, using a small step ladder to fix a neighbour's exterior light fitting and dancing at the Club. Taking account of that film, his assessment of the appellant's credibility and the medical evidence, the primary judge did not accept the appellant's evidence as to the extent of any ongoing disabilities resulting from the assault.
The appellant's evidence included that he could not lift his left hand above his shoulder or head; that if he did so he would start to experience severe pain; that he could not put wet towels or sheets on a clothesline due to that difficulty; that after the accident he could only perform 10% of his domestic chores whereas before he could perform 90% of those chores; that turning his head left and right caused pain; and that he could not do so when reversing a motor vehicle.
He described the "sort of things" that he had not received assistance with prior to the assault: Putting the sheets, towels on the line - I can do the light washing, but I can't - make my - hold my hands up long enough to put the sheets, towels and that on the line. I can't do the mopping of the floor in the house and I need assistance with the - the vacuuming and my left leg has been collapsing a lot more and I have someone in the house when I am having a shower in case I have a fall in the house when I'm in the shower. and: Washing, I can put my stuff in the washing machine. As I said, the light loads I can deal with, but heavy things like sheets, towels, I have to get someone to - to do them and as for stripping the bed to - to do the bed sheets, I have to get someone to strip the bed for me and remake the bed again.
The primary judge gave three reasons for not accepting this evidence. The first was that it was not consistent with what was shown in the surveillance film. He said at [183]: The plaintiff gave a quite detailed history of the increase in pain in his lower back and the difficulties associated with his cervical spine injury, which he attributed to the blow. However, the objective film evidence shows him on occasions sauntering with a slight limp but being able to get in and out of motor vehicles and to climb up heights without any noticeable difficulty. Further he is able to move his head both left and right, as well as backwards and forwards. He could also lift both arms above his head. This does not sit well with his detailed evidence of restrictions in these areas and of considerable pain.
The second reason concerned the manner in which those injuries were said to have been sustained. The appellant's evidence was that the punch caused the back of his head to hit the brick wall. As his Honour observed, the appellant "remained seated and it was his head and neck that went back and therefore it is difficult to understand how he sustained any overt injury to his lower back": at [179]. That conclusion was consistent with the evidence of Dr Fearnside, a neurological surgeon who examined the appellant in March 2013. He said that if the appellant was seated in a chair and did not fall to the ground "it is probable that the injury to his neck was the more significant".
The third reason was that there was no objective evidence supporting the appellant's claim that he had suffered a significant neck injury and exacerbated his existing back injury. Dr Fearnside found no objective evidence of any radiculopathy in the upper limbs and recorded that the only evidence of any aggravation of the previous low back condition was the appellant's account. He concluded that the probability was that the assault had aggravated a "previously asymptomatic condition of cervical spondylosis resulting in a left brachial radicular pain". He did not believe there was any need for surgery and considered the appellant should be managed "conservatively and … treated through a comprehensive pain management clinic".
In relation to the appellant's claim as to his psychiatric illness, the primary judge noted that the evidence of Dr Dinnen was that it had stabilised and that his existing illness was of a mild to moderate severity. Dr Dinnen considered the appellant's psychiatric response to the assault was mainly determined by the extent of the ongoing spinal pain from which he suffered following the assault.
The primary judge concluded at [190]: … In looking closely at the objective evidence of film and having listened to the plaintiff's evidence and the nature of the assault I have come to the conclusion that the assault caused some extra pain in the cervical region by enlivening a previously latent condition and slight worsening of the back pain. I have come to the conclusion that the plaintiff was prone to exaggerate the effects of this one blow and cannot find that he is entitled to general damages and/or non-economic loss anywhere near the figure proposed by the plaintiff.
The figures proposed by the appellant were $165,500 in the case of the first respondent and $127,000 (being aggravation equivalent to a severity of 30% of a most extreme case) in the case of the second respondent. His Honour continued at [191]: On balance there is some worsening of his condition and I propose to allow him $20,000 by way of general damages under the common law. I do not think he reaches the threshold under the CLA of 15% and there can be no award for non-economic loss as against the second defendant. In stating this I have taken into account the psychiatric evidence and made a small allowance for exacerbation of his psychological condition as a result of the assault.
The appellant makes several submissions in support of his argument that these awards did not take account of what were said to be the significant injuries suffered by him.
First it is said that his Honour gave inadequate reasons for rejecting the evidence of Dr Fearnside, who was not cross-examined. This submission misstates how Dr Fearnside's evidence was dealt with by the primary judge. That evidence was that any injury to the neck was more significant and that there was no objective evidence of radicular pain or as to the aggravation of the low back condition. Accordingly any assessment of the significance of the neck injury and of any aggravation of the low back injury depended on the acceptance of the appellant's evidence as to the pain and symptoms he was experiencing and their effect on his activities. His Honour's conclusion at [190] was consistent with Dr Fearnside's opinion and took account of the objective film evidence, the appellant's evidence as to the mechanism of the injury and the extent to which that evidence was contradicted by the film.
Secondly, it was submitted that there was little or no inconsistency between the appellant's evidence about his injuries and what was shown on the surveillance video. This submission was not developed and is without merit. The appellant gave evidence (including that referred to in [41] and [42] above) that his movements were restricted because of pain. The film contradicted that evidence, showing the appellant undertaking freely the movements described by the primary judge at [183].
It was further submitted that the primary judge failed to relate the surveillance film to the other evidence for the purpose of making findings as to the appellant's condition and failed to take account of the appellant's explanations of the matters shown in the film. Reference was made to McGlen-McLeod v Galloway [2012] NSWCA 368 at [113], [114], [123]. That was a case in which the plaintiff did not suggest that she was unable to perform the activities shown on the film and explained that she had performed those activities, although with difficulty, because of her responsibilities to her young family. The present case is different. The appellant gave evidence that he could not and did not perform various activities in the manner shown in the film. The film evidence showed the appellant undertaking those activities or similar activities without apparent restriction or pain. The primary judge identified at [183] the appellant's evidence and the respects in which it was contradicted by the film. In cross-examination the appellant amended his earlier evidence to accommodate what was shown in the film. The primary judge had to assess his credibility and whether he was exaggerating in the light of those responses and did so.
There were also respects in which the evidence contradicted the appellant's asserted difficulties and disabilities as reported to Ms Tchan, the occupational therapist who assessed him for the purpose of his claim for domestic assistance. In her report, following an interview and evaluation of the appellant on 11 June 2013, Ms Tchan recorded that prior to the assault he went to the Bowling Club every couple of days but now only goes "once a fortnight at most". In cross-examination the appellant accepted that he still went to the Club "quite a bit" and up to five days a week depending on how much money he had. Ms Tchan also recorded that whereas before the assault the appellant enjoyed dancing for short periods, afterwards he had tried once and "could only stay on the floor for a few minutes". Having done so, he reported experiencing "increased pain several days after the attempt" and that as a result he would "never try to dance again". The surveillance film, which was time-stamped 20 April 2013, showed the appellant dancing at the Club without any apparent difficulty, having visited the dance floor on four occasions in a period of about one hour, the longest visit being for approximately eight minutes. Confronted with that evidence the appellant said, "I've danced occasionally, not as much as I used to. I used to dance all the time".
Thirdly, it was submitted that the primary judge's conclusion at [181] that not all of the "limitations and disabilities complained of" by the appellant could be attributed to the assault was contradicted by the evidence of Dr Fearnside. That is not correct. Dr Fearnside considered, having regard to the mechanism of injury, that it was probable that the neck injury was the more significant one. That left to be assessed the extent of that injury as well as the extent of any aggravation of the low back injury. As is pointed out above, those assessments depended on the reliability of the appellant's evidence as to his ongoing pain and disabilities.
The appellant also submitted that the primary judge gave no weight to the evidence of Dr Dinnen when considering the extent of any ongoing psychiatric illness due to the assault. That submission ignores the primary judge's conclusion at [191] which makes an allowance for the exacerbation of the appellant's psychiatric condition. Dr Dinnen's evidence was that the severity of that condition depended on the extent to which the appellant suffered ongoing spinal pain as a result of the assault.
The primary judge's assessment of general damages and the extent of the severity of the appellant's non-economic loss ultimately depended on whether the appellant's evidence was accepted. His Honour did not accept it. That conclusion did not contradict Dr Fearnside's evidence and is not shown to have been inconsistent with any incontrovertible evidence or facts established as probable. The appellant's challenge to these assessments must be dismissed.

Aggravated and exemplary damages

The appellant sought aggravated and exemplary damages. The relevant principles are sufficiently summarised by Sackville AJA in State of New South Wales v Zreika [2012] NSWCA 37 at [60] - [61]: … Aggravated damages are given by way of compensation for injury to the plaintiff which, although frequently intangible, results from the circumstances and manner of the defendant's wrongdoing, while exemplary damages are awarded to punish and deter the wrongdoer: Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; 117 CLR 118, at 129-130, per Taylor J, cited with approval in New South Wales v Ibbett [2006] HCA 57; 229 CLR 638, at 646-647 [31],[33]. Aggravated damages are assessed from the point of view of the plaintiff, but an award of exemplary damages is based on the conduct of the defendant: NSW v Ibbett, at [34]; Gray v Motor Accident Commission [1998] HCA 70; 196 CLR 1, at 7 [15], per Gleeson CJ, McHugh, Gummow and Hayne JJ. However, the same set of circumstances may justify an award of either aggravated or exemplary damages, or both: NSW v Ibbett, at 647 [33]. [34]. Exemplary damages go beyond compensation and are awarded as a punishment to the guilty, to deter similar conduct in the future and to reflect "detestation" for the action: Lamb v Cotogno [1987] HCA 47; 164 CLR 1, at 8. Exemplary damages are awarded rarely and not every finding of fault warrants an award: Lamb v Cotogno, at 6 [12]. Nonetheless, such damages can be awarded in a wide variety of circumstances. Generally speaking, what is required for an award is "conscious wrongdoing in contumelious disregard of another's rights": Gray v MAC, at 7 [14].
The appellant sought aggravated damages to compensate him for the manner of the assault. He also sought an award of exemplary damages to record the Court's condemnation of Mr Gregg's conduct. In support of each award reference was made in oral argument before the primary judge to the assault involving a "cruel and vicious blow" which followed a period of "goading and insults and provocative conduct" on the part of Mr Gregg.
Reference was not made in the argument before the primary judge to the fact that Mr Gregg's conduct was also the subject of a criminal charge. On 14 September 2010 he pleaded guilty to a charge of assault occasioning actual bodily harm, was fined $800 and entered into a good behaviour bond for a period of two years.
The primary judge gave brief reasons at [196] for rejecting the appellant's claim to aggravated and exemplary damages: In this matter there was a history of discord between the plaintiff and the first defendant which resulted in the one blow. It is not in my view the type of case in which exemplary damages ought to be awarded. Indeed I do not intend to award aggravated damages in this case as from the evidence of the plaintiff I have had real difficulty in accepting some of his evidence in relation to the overall effect of the assault, especially when contrasted with the objective evidence of the various filmed actions. Consequently I do not intend to award either exemplary or aggravated damages against the first defendant.
The appellant submits that the primary judge misdirected himself as to the considerations relevant to the awarding of these damages. That submission was not the subject of much elaboration, either in writing or in oral argument.
In relation to exemplary damages, the fact of provocation may operate to prevent an award or reduce any amount which might otherwise be awarded: Fontin v Katapodis [1962] HCA 63; 108 CLR 177 at 187; Lamb v Cotogno [1987] HCA 47; 164 CLR 1 at 13. The reason for that being so was explained by Salmon LJ in Lane v Holloway [1968] 1 QB 379 at 391: There is no doubt that if a plaintiff is saying: "This man has behaved absolutely disgracefully and I want exemplary damages because of his disgraceful conduct," when the court is considering how disgraceful the conduct was or whether it was disgraceful at all, it is material to see what provoked it. This is relevant to the question of whether or not exemplary damages should be awarded, and, if so, how much.
The primary judge's reference to the "history of discord" between the appellant and Mr Gregg includes the dispute over the darts club funds, as well as the immediate circumstances leading to the assault. Those circumstances included the appellant making the "offensive" remark to which Mr Gregg responded (see [32] above). These matters were relevant to an assessment of Mr Gregg's conduct and, whilst plainly not justifying it, showed that the assault was not committed on a stranger and followed an exchange that included that remark by the appellant.
The appellant argues that the primary judge's earlier finding at 126 that the "assault was entirely unprovoked" prevented any reliance upon the appellant's comment as a reason for not awarding exemplary damages. This argument misconstrues this finding which, having regard to the uncontroversial evidence, must be understood as directed to the absence of any physical provocation of the assault. The fact that the appellant had taunted Mr Gregg, in the context of their already difficult relationship, was relevant to whether Mr Gregg's conduct was deserving of an award of exemplary damages. The appellant's argument to the contrary is rejected.
As Sackville AJA's summary makes clear, aggravated damages are to compensate for injury resulting from the circumstances and manner of the wrongdoing. When assessing general damages, the primary judge concluded at [190] that the appellant was "prone to exaggerate" its effect on him. His Honour was justified in taking that matter into account in determining whether the appellant had suffered any injury for which aggravated damages might be awarded and which was not sufficiently compensated by an award of general damages of $20,000.
Neither of the submissions on which the appellant relied reveals error in the decision not to award exemplary or aggravated damages. I should also add that in a case like the present, where the conduct has been the subject of a criminal conviction and punishment, a civil court considering whether to award exemplary damages would ordinarily proceed on the basis that the outcome of the criminal proceedings had taken sufficient account of the need to punish the appellant and deter others from like conduct: see Gray v Motor Accident Commission [1998] HCA 70; 196 CLR 1 at [46].

Past and future domestic assistance

The claim for past domestic assistance was for the whole of the period from the assault to the hearing in February 2014. It was based on the evidence of Ms Tchan and assumed a need for care which varied from high care (29.2 hours per week) immediately following the assault, reducing over time to 19.4 hours, 13 hours and eventually to 6.4 hours per week from May 2012. The amount claimed against the second respondent (based upon average weekly earnings rates) was $55,191 and the amount claimed against Mr Gregg (using commercial rates) was $89,320.
The claim for future domestic assistance assumed an ongoing need for care of 6.4 hours per week. Applying a multiplier based on a 3% discount rate, a life expectancy of 31 years and using commercial rates, the amount claimed against Mr Gregg was $307,581. Making the same assumptions but using a discount rate of 5%, the amount claimed from the second respondent was $242,127. Ms Tchan's estimate of the need for ongoing care of more than six hours per week included allowances for assistance in showering, transport (driving), shopping for household goods and groceries, heavy cleaning, washing and drying of clothes and car maintenance.
The evidence as to the past provision of gratuitous domestic assistance to the appellant was given by the appellant and Ms Mortimer. Before and at the time of the assault, she and the appellant were involved in a relationship. The evidence suggested that relationship had ended before the trial, although Ms Mortimer continued to provide assistance to the appellant as a close friend. The appellant gave evidence as to the kind of assistance which he was receiving. He did not, however, estimate the number of hours per week for which that assistance was provided or say that the need for assistance had been considerably greater in the first two years after the assault.
Ms Mortimer said that before February 2010 she was providing domestic assistance of at least "a couple of hours a week". That assistance included hanging washing on the clothesline and, according to the appellant's evidence, assisting him with showering. After the assault she provided assistance of at least one hour a day for things such as cooking, shopping, driving the appellant to hydrotherapy treatment or to the beach for walks, meal preparation and cleaning. When challenged as to the time she spent assisting the appellant, Ms Mortimer gave the following evidence: Q. What else do you go there for? A. I'm there for his company and I'm there to help him do other things as well, not just to vacuum. Q. So when you say you spend no less than an hour a day there, part of that time is providing him company? A. Sometimes, yes, it is.
The primary judge concluded that the evidence did not disclose a need for care in excess of six hours a week which had continued for any period of six months leading up to the hearing: [207]. Taking account of Ms Mortimer's evidence and the "objective evidence of relatively unaffected movement carried out by the [appellant] on film", he found that in the period before the hearing there was a need for additional domestic services resulting from the assault that averaged approximately half an hour per week: [204], [208]. Accordingly, he awarded damages against Mr Gregg for past gratuitous assistance at $7,884 and would not have awarded damages against the second respondent because the threshold in s 15(3) of the Civil Liability Act was not satisfied.
His Honour made no allowance for damages for future domestic assistance as against either respondent, finding that the appellant "no longer requires extra assistance" as a result of the assault: [209].
The appellant challenges these conclusions. First, it was submitted that the primary judge did not give sufficient reasons for rejecting Ms Tchan's opinion, which was said to "match" the evidence called on behalf of the appellant. Secondly, it was said that the evidence of the appellant and Ms Tchan was "candid and credible and ought to have been accepted". Thirdly, it was submitted that the primary judge gave no reason for finding that the need for care did not extend beyond February 2014. Finally, in relation to Ms Tchan's evidence, it was submitted that his Honour had misconstrued her tabular explanation of the appellant's ongoing need for care of 6.4 hours a week.
Addressing these arguments generally, Ms Tchan's assessment fundamentally depended upon the veracity of the appellant's evidence and her assumptions as to his functional abilities and requirements for domestic assistance. Those assumptions were also based, in part, on information provided by Ms Mortimer. The question for the primary judge was whether the evidence supported the assumptions upon which her assessment was based. Contrary to the appellant's submission, it did not.
Ms Tchan's assessment of past care is not supported by the evidence of the appellant or Ms Mortimer. No evidence was called from any of the appellant's children or friends who were also said to have provided some of that assistance. Whereas Ms Tchan's assessment assumed the provision of extra care which reduced over time, the appellant's evidence-in-chief was to the opposite effect: Q. Has the level of help you get from [Ms Mortimer] or others changed [since] the assault? A. Since the assault it's gradually increased the amount of assistance I am requiring.
Neither the appellant nor Ms Mortimer gave evidence that supported the assumptions made by Ms Tchan as to the level of additional care received in the first two years following the assault. Ms Mortimer's evidence was that the care provided from February 2010 was not less than an hour a day. That care included tasks for which the appellant was already obtaining assistance at the time of the assault; for example, "putting his clothes on the line, just similar things like that" and showering. Ms Mortimer's time estimate also included providing the appellant with company.
Returning to the appellant's specific submissions, as to the first, the primary judge gave reasons (especially at [204] and [205]) for not accepting Ms Tchan's evidence. Her assessments were not consistent with the evidence of Ms Mortimer or the appellant. Nor did they take account of his apparent ability to undertake tasks which involved activities or movements of the kind shown in the surveillance film. As to the second, Ms Tchan's evidence depended upon the appellant's evidence being accepted. No question arose as to her credibility. The primary judge found that the appellant had exaggerated the effects of the assault. As to the third, contrary to the appellant's submission, the primary judge did not find that the need for care ended at the time of the trial. As his Honour explained at [208], he was not satisfied that the appellant had any ongoing need for extra care by the time of the trial. That conclusion was justified. Some of the care provided by Ms Mortimer had been provided before the assault, some involved the provision of mere "company" and, more significantly, the surveillance film showed the appellant to be able to undertake tasks of the kind for which Ms Tchan made provision.
As to the appellant's final argument, it is apparent that the primary judge's references at [205] to Ms Mortimer performing 90% (rather than 10%) of the tasks relating to the preparation and cooking of meals and providing between 90 to 98% of the appellant's showering care misunderstood what was represented by Ms Tchan's tabular explanation as to the continuing care need of 6.4 hours a week. However, these errors assumed no significance in his Honour's conclusion which was based on the evidence and that the appellant was able to perform the activities for which allowance had been made.

Future treatment expenses

The primary judge observed that the appellant asserted a continuing need to attend "GP's, specialists, occupational therapists as well as pool membership, massage and psychiatric review": [212]. The amount claimed was $70,462 as against Mr Gregg and $58,714 against the second respondent.
This claim as formulated was rejected because of the primary judge's assessment of the extent to which the appellant's ongoing injuries and disabilities were caused by the assault. His Honour accepted the respondent's submission that the claim in respect of these expenses should be dealt with on the basis that "future treatment is conservative and could include a modest buffer for analgesics for pain and anti-depression": [211]. He allowed $4,000 damages as against Mr Gregg and $3,000 as against the second respondent.
The appellant's submission challenging these findings is general and unhelpful. It merely asserts error and that his Honour gave no or no adequate reasons for rejecting "the expert and medical opinions" tendered. Each of those submissions should be rejected. As is apparent from the foregoing discussion, his Honour gave reasons for his conclusions as to the extent of the appellant's ongoing injuries and disabilities. The amounts awarded to cover the possibility of future treatment expenses are consistent with his Honour's principal findings which are not shown to have involved error.

Conclusion

The appeals from the quantum of the judgment against the first respondent and against the verdict and judgment in favour of the second respondent should be dismissed. The orders I propose are:
Appeal dismissed.
The appellant pay any reasonably incurred disbursements and expenses recoverable by the first respondent as a litigant in person.
The appellant pay the second respondent's costs of the appeal.
I should note that in the course of argument the first respondent indicated that he wished to appeal from a costs order made in the District Court on 24 June 2014 in relation to five notices of motion filed before judgment was given in that Court. No application for leave to appeal from that order was made and the appellant objected to the matter being raised in the appeal. That being the position, I have not considered this question of costs.

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: 16 June 2015

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