Hutchison v Fitzpatrick [2009] ACTSC 43 (17 April 2009)

TRESPASS – trespass to the person – battery – intentional physical contact – element of hostility – no intention to injure – question of degree and proportion

NEGLIGENCE – spectators at rugby game – intentional physical contact without warning – no intention to injure – defendant having duty of care – breach of duty

DAMAGES – personal injury – fracture to femur – subsequent hip replacement surgery – no issue of principle

1. This is a claim in trespass to the person and in negligence for damages for personal injury arising out of an incident at a rugby match at Griffith Oval on Saturday 5 June 2004. The plaintiff and the defendant were both spectators at the game.

2. The plaintiff’s claim is that he was suddenly and without warning tackled from behind by the defendant, and thrown to the ground. He suffered a fracture to the right femur.

3. The plaintiff is forty-one and has been a Commonwealth Public Servant for about twenty years. His present level is ASO 6. At the time of the incident he was a single man living alone, but by the hearing he was living in a de facto relationship with a woman and her two children aged six and four.

4. The plaintiff has suffered from cerebral palsy since birth, and also from epilepsy from the age of eleven. As a result of the former he has a very weak right arm with minimal hand movement, and a weak right leg, being symptoms of right-sided hemiplegia. This caused him to walk with a slight limp, but did not prevent him from playing competitive cricket and rugby union. His epilepsy has been and remains controlled by medication.

5. He played rugby union at school and for two years after leaving school, and thereafter became involved in administration with the Eastern Suburbs Rugby Union Club. He played cricket competitively, as a spin bowler with the Weston Creek fifth grade team, until the season before his injury. He also played some golf and tennis. He walked and rode a mountain bike for exercise.

6. After he gave up playing rugby, he acted as manager for various Easts teams, including the Colts or under twenties. He said that he had first met the defendant as a member of one of those teams of which he was manager, he thought in about 1999 and 2000. They knew each other as Hutch and Fitzy, though they were not personal friends away from the rugby club.

7. The plaintiff’s evidence was that during 1999 or 2000 he had had an encounter with the defendant in a rugby change room. The defendant had mocked his disability. After intervention by the coach, whom the plaintiff identified, the defendant had apologised to him, saying that he had not realised the extent of the disability. The plaintiff had explained to the defendant that he suffered from cerebral palsy and said that he did not like being mocked about it.

8. On the day of the injury, the plaintiff said that he arrived at Griffith Oval at about 11.15 am. He was managing an Easts team, the under twenties or Colts, who were playing at 12.15 pm. He went about his tasks as manager, preparing the change rooms, preparing football jumpers, filling water bottles and helping to set up pre-game training on an adjoining oval. During the game he sat with the coach and helped with statistics. He also looked after the reserve players on the sideline, making sure that they were ready to take the field when needed. At the end of the game he cleaned up the change room, collected football jumpers and checked that the referee had signed the team sheets. He then watched the second-grade game, after which he went to the canteen and got some lunch. He walked to the northern end of the oval to watch the first-grade game from behind the goalposts. He stood in the general vicinity of a group of other men he knew who were associated with Easts as coaches and players, a couple of steps behind the dead ball line.

9. He said that he first saw the defendant about twenty-five minutes into the second half. The defendant was walking along the eastern sideline of the field. He was carrying a golf club. As the defendant got closer they exchanged greetings, saying good-day to each other and waving.

10. The plaintiff continued to watch the game. Suddenly he felt a person hitting him from behind, and he fell or was thrown to the ground, experiencing what he described as unbearable pain. He later realised that it had been the defendant who had tackled him. He denied any physical contact with the defendant earlier on the day, or indeed on any other occasion.

11. The plaintiff looked up to see the defendant over him. The defendant said that he was sorry. Others then helped the plaintiff until an ambulance took him to Canberra Hospital where he underwent surgery the following morning, having three screws inserted into the femur. He spent eleven days in hospital and seven weeks off work.

12. The fracture took four to five months to heal. The plaintiff said that he had to learn to walk again, using a zimmer frame. He was unable to use crutches because of the weakness in his right arm. He started using the zimmer frame when he was discharged from hospital, and used it for the next six weeks. He was provided with home care. He was living in a flat on the middle level of a three-storey building, and could get up the stairs to his flat only by sitting down and levering his way up backwards.

13. He had physiotherapy and hydrotherapy for about eight weeks. The pain was fairly constant for the first two months, particularly if he put any pressure on the right leg. It improved over time but remained painful for a number of months. The pain was always there at a moderate level but was much worse on physical movement or pressure.

14. In mid-2005 the pain became much worse. The plaintiff went to his general practitioner, who referred him for physiotherapy, but this did not relieve the symptoms. He eventually saw an orthopaedic surgeon, Dr Paul Smith, who advised and carried out surgery in the form of a replacement of the right hip joint in April 2006. The plaintiff was off work at this time for five weeks and took about four months to recover. Again he had to learn to walk using a zimmer frame. The pain during that period was tolerable provided that he took medication.

15. After the hip replacement operation the plaintiff was prescribed Clexane, a blood thinner, which he injected into his stomach for five weeks.

16. By the time of the hearing he continued to suffer from soreness and stiffness in the right hip three or four times a week, lasting for about fifteen minutes at a time.

17. As a result of his injury the plaintiff has been unable to return to cricket, and finds that he cannot run further than fifteen or twenty metres without pain. He has not returned to tennis, though he has resumed walking up to a kilometre. He ceased his involvement with the Easts Rugby Club after his injury.

18. In the witness box he expressed anger and disappointment that the defendant had never telephoned him, visited him or written to him.

19. The defendant is twenty-six years old. He played rugby at school, leaving at the end of Year 12 in 2000. He then played with the Eastern Suburbs Colts team in 2001. In 2002 he played some games with Colts and some with second-grade. The plaintiff was manager of the Colts side in 2001 and the defendant met him in that capacity at the start of the 2001 season.

20. The defendant had two brothers who played rugby with Easts, one brother playing first-grade in 1999 and 2000.

21. The defendant denied any involvement in the incident where the plaintiff was mocked about his disability. He made the point that he had still been a schoolboy in 1999 and 2000, and said that he had never been coached by the man identified by the plaintiff as the coach who insisted on the apology.

22. I should interpose that counsel for the defendant put to the plaintiff in cross-examination that if the incident had occurred during 1999 or 2000, it could not have involved the defendant. The plaintiff’s response was that he might have got the years wrong. He confirmed the identity of the coach who sent the culprit out to apologise to him. He recalled the defendant’s older brother playing first-grade during 1999 and 2000 although he was not aware until much later that the two were brothers.

23. The defendant’s evidence was that he had been in a group which included the plaintiff on numerous occasions at the rugby club after a game, and had seen him drinking a glass of beer. He was generally unaware that the plaintiff suffered from any disability, except that he thought that his right arm was shorter than his left arm. He had not noticed any problem involving the plaintiff’s legs.

24. The defendant was asked in chief whether he had ever bought a round of drinks for the plaintiff, or given him money to buy a round. He replied that he had done so, and also that he had lent the plaintiff money. His counsel did not take this further in chief, but counsel for the plaintiff raised the matter again in cross-examination. The defendant said that on the evening following the 2001 grand final, which had been won by his team, he had lent the plaintiff some money: “If my memory serves correct, it was $100.00”. He said that the plaintiff did not have any money. He did not want the plaintiff “to miss out on the celebrations and being a friend I lent him the $100.00”. He said that they were involved in a shout. He was with a couple of other mates and someone told him “to buy Hutch a beer”. After that he realised that the plaintiff did not have any money, and offered the money to him. The plaintiff thanked him and accepted the loan. Asked whether the plaintiff repaid the money, the defendant replied “I can’t recall ever getting the money back, no”. I then asked him whether he had ever asked the plaintiff for the money back. He replied “No, I don’t normally ask friends for money”. I asked him whether he often lent people amounts like $100.00. He replied “If they’re a friend it wouldn’t bother me, no”. I asked whether there had been other occasions when he had not been repaid and had not asked for repayment. He replied in the affirmative. Counsel for the plaintiff asked why the loan had been for $100.00. The defendant replied “Because that’s approximately what I spend on a night out, so I thought that’d be a fair amount”.

25. By the time this evidence was given the plaintiff had already completed his evidence. He was asked in cross-examination whether the defendant had ever lent him money and replied that he had never done so. It was not put specifically to the plaintiff in cross-examination that the defendant had lent him $100.00, or that the loan incident had happened on the night of the 2001 grand final. I would have expected the allegation to have been put to the plaintiff with that level of detail if it had formed part of the defendant’s instructions to counsel.

26. The defendant insisted throughout his evidence that he regarded the plaintiff as a friend rather than a mere acquaintance, although he was not a close friend and they did not see anything of each other except in the context of a group of Easts rugby supporters.

27. The defendant was asked about the day of the plaintiff’s injury. He had worked that morning as a tyre fitter at Queanbeyan, finishing at about 2.00 pm. After having a shower and some lunch he drove with a friend to Griffith Oval. They arrived at about 3.10 pm, ten minutes after the start of the first-grade game. They made their way towards the northern end of the field. The defendant saw a number of people he knew, including the coach of the Easts team, a man who been the defendant’s rugby coach at school. He had reason to speak to the coach. The coach had bought a set of tyres from the company where the defendant worked, and the defendant needed to ascertain whether to invoice the coach or the rugby club for the tyres.

28. The defendant’s evidence was that as he was walking towards the coach, behind the dead ball line at the northern end of the field, the plaintiff came up from behind him and grabbed him over the shoulder. The defendant said “Hold on, Hutch, I’ll come and see you in a sec, I’ve got to talk to Mr Papahatsis”. The defendant thought that he recalled the plaintiff saying “Fitzy” as he grabbed him. The defendant did not see the plaintiff approach him, although he had noticed the plaintiff standing with other supporters in the general area a little earlier. The defendant’s counsel asked him to describe how the greeting had been carried out. The defendant described this and also demonstrated it. He said that the plaintiff had put his right arm over his, the defendant’s, left shoulder. There was no force and the defendant accepted it as a friendly gesture.

29. The defendant spoke to the coach for two or three minutes, after which time the play on the rugby field had come down to the northern end of the ground. The coach called out some orders to the players, and the defendant got out of the way. The defendant then returned to speak to the plaintiff. By this time the defendant’s recollection was that it was late in the first half of the game. The defendant said that he walked around and put his arm over the plaintiff’s shoulder and around him. The plaintiff “sort of got into a position and then started screaming”. The defendant said that he “then took his weight and put him down to the ground, like he sort of grabbed me as he fell”. The defendant demonstrated with his counsel a position where the defendant’s left arm was across counsel’s chest and his right arm was around counsel’s right shoulder from the left, with some lateral force from the left side. The defendant said that he greeted a lot of people in that way and did not use force. He said that he had come from the side rather than behind the plaintiff. He said that as he commenced the manoeuvre he said “G’day mate”. The defendant said “His leg sort of got stuck, he then fell over”. He demonstrated that the leg which became stuck in the grass had been the right leg. The plaintiff lost his balance and screamed. The defendant did not fall over. He said that he was supporting the plaintiff’s weight and ended up crouched over holding him. The whole incident took no more than three seconds. The plaintiff screamed as he was falling, and “as he hit the ground the scream really come”. The defendant apologised. Other Easts supporters came up to help. The defendant gave the plaintiff a cigarette. Someone called an ambulance. A small station-wagon ambulance came first and the ambulance officer gave some first aid. About fifteen minutes later a conventional ambulance arrived and took the plaintiff away. The defendant conceded that he said sorry to the plaintiff quite a number of times. He had had no intention of hurting the plaintiff or causing him any injury.

30. The defendant conceded that he had not visited the plaintiff in hospital or telephoned him or written to him. His explanation was that within a few days of the incident he had telephoned his solicitor and that she had advised him to stay well away from the plaintiff.

31. I should say at this point that the advice was perhaps unfortunate. Part 2.3 (Apologies) of the Civil Law (Wrongs) Act 2002 was in effect at the time. The part appears to have been included in the Act with a view to encouraging apologies. An apology is defined in section 13 as an oral or written expression of sympathy or regret, or of a general sense of benevolence or compassion, in relation to an incident, whether or not the expression admits or implies fault or liability in relation to the incident. Section 14 provides that an apology is not and must not be taken to be an express or implied admission of fault or liability and is not relevant to deciding fault or liability. Evidence of an apology is not admissible in a civil proceeding as evidence of fault or liability.

32. On my interpretation of these provisions, the defendant would not have been placing himself at risk by visiting the plaintiff or proffering an apology to him. If solicitors are still advising their clients not to apologise and not to visit or telephone or write to people who might sue them, notwithstanding part 2.3 of the Act, this would be regrettable.

33. The defendant gave some unsatisfactory evidence about a relatively minor matter. He had affirmed an affidavit in April 2006 in support of a successful application to set aside interlocutory judgment which had been entered in default of a defence. Included in his affidavit was the following passage:

I was not aware of any physical disability that Hutch had except for one short arm prior to this day. The short arm seemed to be fully functioning, it could certainly hold a beer from my observation. I was not aware of any problems with his legs, balance, epilepsy or any other condition or weakness.

34. Counsel for the plaintiff put to the defendant in cross-examination that he had never seen the plaintiff drink with his right hand, and the defendant agreed. Counsel then put to him that the passage in the affidavit was wrong, in suggesting that the plaintiff could hold a beer in his right. The defendant replied “That’s correct. I said he could hold a beer, I never said he could drink a beer”. He then said that he had seen the plaintiff holding a beer in his right hand, probably during 2004 or 2005. The defendant demonstrated that the plaintiff propped the glass of beer on his right arm, with the arm bent and the forearm horizontal. Counsel put to him that this did not amount to holding a glass in his hand, but rather to resting a glass on his forearm. The defendant responded “Holding, resting, I would classify them as the same thing”. The defendant agreed that the plaintiff did not use his fingers to grasp the glass but would not concede that he had made any error in his affidavit, or stretched the truth. I found the defendant’s attempt to deal with this piece of cross-examination unconvincing.

35. The paragraph of the affidavit was poorly worded. I do not for a moment think that the defendant consciously affirmed a falsehood in his affidavit, but I was unimpressed with his answers when he realised that the statement in the affidavit could not be justified. At the same time I generally accept the defendant’s evidence that, with the exception of some difficulty with the right arm, he was unaware that the plaintiff had any physical difficulties. In particular I accept that he had not previously noticed that the plaintiff walked with a slight limp.

36. The plaintiff’s counsel put to the defendant that he was not so close a friend of the plaintiff that they would hug one another when they met. The defendant’s reply was “I hug a lot of people when I greet them, yes . . . well, obviously I’d classify him as a friend, so yes, I would hug him”.

37. Cross-examined about the mechanics of the tackle or interaction, the defendant said that he had made an error during his evidence in chief the previous day and that it had been the plaintiff’s left arm which he had put over the defendant’s shoulder during their earlier greeting. He added that the plaintiff’s right arm did not function. As to this piece of evidence, I came to the view that the defendant only realised during the hearing that the plaintiff’s right arm was barely functional, and that he changed his evidence to accommodate this. Again I do not think that the defendant consciously gave false evidence the previous day, but the inconsistency causes me to have some doubts about the accuracy of his recollection and the extent to which his demonstration the previous day had been based on actual recollection as opposed to reconstruction.

38. The defendant conceded in cross-examination that he did not make eye contact with the plaintiff before his tackle and that he could not be sure whether the plaintiff had seen him approaching. The defendant maintained that the plaintiff’s fall resulted from a loss of balance caused by his right leg being caught in the grass. He sought to justify this by saying a little later that there had been clumps of grass in the area (“It’s no Bruce Stadium”). I have difficulty accepting this piece of evidence, which had not been forthcoming in chief. It is clear that the area where the incident took place was only a short distance behind the dead ball line on a first-grade rugby oval. It seems to me extremely unlikely that the grass would have been any longer where the incident happened than on the field of play, and highly unlikely that there would have been clumps of grass. In any event, the defendant’s explanation of the fall seems premised on the fact that the plaintiff did not move his right foot when hugged or tackled. It is not obvious to me why there should be any expectation that he should have moved his right foot. He was hugged from behind without warning. I accept that he was unaware of what was happening until it happened, and that he immediately lost his balance and fell. The defendant’s explanation about the mechanism of the fall seems to me an attempt at self-justification after the event.

39. Craig Harley, a friend of the plaintiff, was at the match with his father. They had come to support the opposing team. Neither of them saw the incident. Craig Harley went over to see the plaintiff when he realised what had happened. He had a conversation with the defendant. He heard the defendant say, and repeat, that he was sorry and had not meant to hurt the plaintiff. Mr Harley asked the defendant what he had done to the plaintiff. The defendant provided him with a demonstration. He stood next to Mr Harley and put an arm across his chest and shoulder. He described what he had done to the plaintiff as a love tap or a love tackle. He told Mr Harley that he had caught the plaintiff before he hit the ground and had not tackled him to the ground. Mr Harley asked him why he had done it and the defendant repeated that he was really sorry.

40. Mr Harley’s father, a retired senior Australian Federal Police officer, also gave evidence. He had never seen the defendant before the day of the injury but said that he recognised him in court. He gave evidence that he had seen the defendant earlier in the afternoon with a golf club or stick in his hand, hitting a large soft ball or toy. He overheard and confirmed the conversation he heard between his son and the defendant.

41. I am not sure what to make of the evidence about the golf club. I accept the defendant’s denial that he had a golf club on the day. I think that the most likely explanation is that both the plaintiff and Mr Harley senior saw someone with a golf club at the football field, but that they are mistaken in their recollection that the person was the defendant. Neither of the Harleys was seriously challenged in cross-examination about the conversation with the defendant after the tackle incident.

42. Although the plaintiff proved to be mistaken in his recollection about some matters, I generally accept him as an honest and truthful witness. Some of the events he was mistaken about had taken place eight or nine years before he gave his evidence.

43. In particular, I accept the defendant’s evidence that he was still at school until the end of 2000 and that he did not meet the plaintiff until 2001. I accept his evidence that he was not involved in the incident at the dressing room at the oval when a player teased the plaintiff about his hemiplegia, though I accept that such an incident did occur. It is possible that the player involved was one of the defendant’s brothers, but I am not satisfied that the defendant knew anything about it, or that as a result of it there was anything which could be described as bad blood between the plaintiff and the defendant.

44. As to the incident described by the defendant when he says that he lent the plaintiff $100.00, I am not satisfied that it happened. If the defendant’s evidence had been that he lent the plaintiff a small amount, for example $5.00 or $10.00, I could more readily accept that the event had taken place and that the plaintiff had forgotten about it. I think it exceedingly unlikely that the plaintiff would have forgotten about being lent $100.00 by the defendant. If there had been such a loan, I have no doubt that the plaintiff would have remembered it and paid the money back. The plaintiff was a single man in full-time employment as a public servant. There is no suggestion that he was in any financial difficulty. Nor is it suggested that he was intoxicated at the time of the loan, or even by the end of the evening. For these reasons, combined with the way in which the evidence about the loan incident came out, I do not accept that the defendant ever lent the plaintiff $100.00. I found the defendant’s evidence about this incident unconvincing, and was left with the impression that he had either made it up, or exaggerated the amount very significantly, for the purpose of supporting his position that the plaintiff was a closer friend of his than was the fact.

45. I found equally unconvincing the defendant’s attempt to extricate himself from his statement in his affidavit to the effect that the plaintiff was able to hold a beer glass with his right arm.

46. The $100.00 loan evidence and the beer glass evidence were on one view minor and peripheral, but they affected the defendant’s credit adversely, making it more difficult for me to accept his evidence about what happened on the day of the plaintiff’s injury, where his evidence departed from the plaintiff’s version.

47. Whilst I think it unlikely that the evidence of either the plaintiff or the defendant was entirely accurate, for example as to the positions of other Easts supporters around the ground, as to the matters of significance to the plaintiff’s case I prefer the plaintiff’s evidence to that of the defendant.

48. I accept the plaintiff’s evidence that he caught the defendant’s eye some time before the tackle incident and that they greeted each other. I reject the defendant’s evidence that the plaintiff grabbed the defendant over the shoulder, or that he greeted the defendant in any physical fashion, prior to the tackle incident.

49. I accept the plaintiff’s evidence that he had no warning of the tackle which caused his injury. It seems likely to me that this tackle, although intended as a friendly one, caught him by surprise and caused him to lose his balance. I am sure that his hemiplegia, causing a slight weakness of his right leg, played some part in his loss of balance. A man without such a disability may well have been able to react to the tackle in such a way as to keep his balance and footing.

50. I accept without reservation that the defendant intended the tackle as a piece of friendly horseplay, and that he had no intention of bringing the plaintiff to the ground and absolutely no intention whatsoever of causing him any injury. I have already said that I accept that the defendant was unaware that the plaintiff had any disability affecting the lower part of his body.

51. The plaintiff brings this action against the defendant in trespass or battery and also in negligence. The English Court of Appeal set out some principles relating to the tort of battery in Wilson v Pringle [1986] EWCA Civ 6; [1987] 1 QB 237, where their Lordships (O’Connor, Croom-Johnson and Balcombe L JJ) said at 252:

In our view, the authorities lead one to the conclusion that in a battery there must be an intentional touching or contact in one form or another of the plaintiff by the defendant. That touching must be proved to be a hostile touching. That still leaves unanswered the question “when is a touching to be called hostile?” Hostility cannot be equated with ill-will or malevolence. It cannot be governed by the obvious intention shown in acts like punching, stabbing or shooting. It cannot be solely governed by an expressed intention, although that may be strong evidence. But the element of hostility, in the sense in which it is now to be considered, must be a question of fact for the tribunal of fact. It may be imported from the circumstances. Take the example of the police officer in Collins v Wilcock [1984] 1 WLR 1172. She touched the woman deliberately, but without an intention to do more than restrain her temporarily. Nevertheless, she was acting unlawfully and in that way was acting with hostility. She was acting contrary to the woman’s legal right not to be physically restrained. We see no more difficulty in establishing what she intended by means of question and answer, or by inference from the surrounding circumstances, than there is in establishing whether an apparently playful blow was struck in anger.

52. Observations of Barwick CJ in The Queen v Phillips (1971) 45 ALJR 467 are apposite although the appeal before the High Court arose from a conviction for murder. His Honour said at 472:

Physical contact with a person may be a battery at common law. But it is not necessarily or universally so even if the contact is an intentional act and could be described as the application of force. Such contact is not a battery at common law, in my opinion, unless it is made in “an angry, revengeful, rude, insolent or hostile manner”, a description taken from Hawkin’s Pleas of the Crown. Nor is it in my opinion necessarily a battery at common law to make contact with another for some purpose of the person making the contact in which the person touched or handled has, or could have an interest or benefit of his or her own, none of the other features of a battery being present. Questions of degree and proportion may be involved in such a case.

53. Question of degree and proportion arise in the present case. If on the evidence the plaintiff and the defendant had been in the habit of greeting each other in the fashion of the defendant’s tackle, the court would probably not be satisfied that it amounted to a battery even though it was unexpected. If the recipient of the tackle had been a former teammate of the defendant’s, and his own age, again perhaps a battery would not be made out.

54. In the present case, I am satisfied that the physical contact was intentional, and that it was not in the nature of horseplay in which the defendant customarily engaged with the plaintiff, or knew that others did. The plaintiff did not invite it or agree to it. Whilst it was not hostile in the ordinary and usual meaning of that word, I am satisfied that it had the required degree of hostility to amount to a battery, by reason of its suddenness and force. I am accordingly satisfied that the tort of battery is made out.

55. The tort of negligence under the general law is now affected by Chapter 4 of the Civil Law (Wrongs) Act 2002. It is not yet entirely clear whether the provisions of Chapter 4 have altered the general law or merely expressed it in a conveniently accessible form. At the least it would have to be said that the statutory provisions will prevail to the extent of any inconsistency in respect of causes of action arising in the Australian Capital Territory, for example in the case of any development of the general law of negligence in Australia through decisions of courts which would otherwise be binding on this court. Negligence is defined in section 40 to mean failure to exercise reasonable care and skill, which is not necessarily the meaning of negligence under the general law. Section 42 provides that the standard of care required of a defendant is that of a reasonable person in the defendant’s position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.

56. The Act does not contain any provision which would assist in determining the circumstances in which one person owes a duty of care to another. This remains a question to be determined under the general law.

57. I am satisfied that the tort of negligence is established. The defendant owed a duty to other spectators at the game not to engage in intentional conduct carrying a risk of injury to them. The tackle amounted to a breach of that duty, although there would have been no negligence if the tackle had not caused injury. Regrettably in the present case the tackle did cause injury, and each of the ingredients of the tort of negligence is made out.

58. It seems to me that the measure of damages for both torts is the same. Counsel for the plaintiff submitted that if both causes of action were established, then in addition to the damages awarded for negligence, the plaintiff should be awarded an additional amount for the battery, perhaps to reflect the intentional aspect of that tort, and, counsel argued, on the footing that damages were recoverable for trespass without proof of actual damage. Counsel did not refer me to any authority for the proposition, and I reject it. Whilst it is correct that there may be an award of damages for trespass to the person in the absence of any physical injury, when physical injury is established damages for personal injury should be assessed in the normal manner, without any additional award flowing from the nature of the tort (in some cases punitive or exemplary damages may be appropriate, but there was no suggestion that this is such a case).

59. The injury suffered by the plaintiff was far more serious than the defendant could have contemplated, and indeed far more serious than anyone would have expected. The parties are agreed that past treatment expenses amount to $28,210.99, and that the value of gratuitous services provided to the plaintiff in the past is $8,065.75. There was no evidence as to how much, if any, of the expenses have been paid by the plaintiff and I was not addressed about interest. I assume in the circumstances that there is no claim for interest over and above these amounts.

60. It is also agreed that whilst the plaintiff has not suffered any actual loss of earnings, the value of his sick leave credits lost as a result of absences from work to date is $5,000.00. As no actual loss has yet been incurred, this allowance would not attract interest in any event.

61. I invited assistance from counsel as to general damages for pain and suffering and loss of enjoyment of life. Counsel for the plaintiff suggested a range of $125,000.00 to $150,000.00. Counsel for the defendant submitted that an appropriate figure would be in the vicinity of $100,000.00. The assessment of a figure for general damages is a subjective one, dependent on the individual facts of each case. Based upon my observation of the plaintiff, my reading of the medical reports and my assessment of the past and likely future impact of the injury upon the plaintiff, it seems to me that $100,000.00 is a figure which is fair to both sides for general damages. I apportion that figure equally between the past and the future. The past component attracts interest for which I allow $5,000.00.

62. As to future expenses, the plaintiff is likely to require further hip replacement surgery in about twenty years, and probably again fifteen years after that. To assist me in arriving at a figure for future treatment expenses, I have had regard to 3% present value tables which tell me that it would be necessary to put aside $5,500.00 to provide $10,000.00 in twenty years time and $3,500.00 to provide the same amount in thirty-five years time. I allow $20,000.00 for future surgical and other treatment expenses.

63. The plaintiff is likely to require compensable but unpaid assistance in the context of that future surgery for which I allow $3,000.00.

64. There is a claim for loss of earning capacity for the future. The plaintiff has been a Commonwealth Public Servant for more than twenty years and there is no reason to suppose that his future employment is other than secure, or that he is likely to forsake that security. He is generally in good health and will continue to build up sick leave credits as the years go by, to such an extent that he may not be out of pocket at all when he needs to take sick leave in the future. Indeed, the agreed allowance of $5,000.00 for the past may prove something of a windfall for him. Nevertheless it is incumbent on me to make some allowance for the fact that the impairment of his earning capacity in the future may be reflected in actual loss of income. No more than a nominal allowance is justified in the circumstances of the case. I allow $1,000.00.

65. Counsel for the plaintiff sought an allowance under section 100 of the Civil Law (Wrongs) Act 2002 for impairment of the capacity to perform domestic services for his household. In this regard, I take account of the fact that the plaintiff was living alone at the time of the injury, and has only been living in a de facto relationship for a relatively short time. His partner’s children are likely, having regard to their ages, to be self-supporting by the time the plaintiff comes to further surgery. The plaintiff’s present relationship may or may not last until that time. His partner did not give evidence and the evidence in the case does not really enable me to make findings of fact or predictions of fact which would justify any allowance under section 100.

General damages	$100,000.00
- interest on past component	$ 5,000.00
Treatment expenses
- past	$ 28,210.99
- future	$ 20,000.00
Loss of sick leave credits	$ 5,000.00
Loss of earning capacity - future	$ 1,000.00
Griffiths v Kerkemeyer
- past	$ 8,065.75
- future	$ 3,000.00
	$170,276.74

67. I am conscious of the fact that this award of damages may be seen from the defendant’s viewpoint as out of proportion to a spur-of-the-moment piece of exuberance not intended to cause any harm. From the plaintiff’s viewpoint, however, I am satisfied that the total amount represents a proper and reasonable reflection of the impact of the injury on him. I am reminded that regularly in injury claims arising out of motor vehicle collisions the negligence of the defendant amounts to no more than a moment’s inattention, and that a minor impact can be capable of causing catastrophic injury. Liability in the present case having been established, I have no option but to apply the accepted principles of the law in assessing damages.

68. There will judgment for the plaintiff for $170,276.74. I shall hear the parties as to costs.

I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Supreme Court of the ACT

Hutchison v Fitzpatrick [2009] ACTSC 43 (17 April 2009)