FERGUSON & ANOR v MAUR — (SUPREME COURT OF SOUTH AUSTRALIA)

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Excerpts from  FERGUSON & ANOR v MAUR No. SCCIV-03-645 [2004] SASC 22 (23 January 2004)

SUPREME COURT OF SOUTH AUSTRALIA

Judgment of the Full Court

Hearing

04/11/2003.

Catchwords and Materials Considered

TORTS – NEGLIGENCE The appellants, the proprietors of a hardware store, appealed from a judgment given against them following a trial in the District Court in proceedings in which the respondent claimed that the male appellant was negligent when, while serving the respondent, he pulled a piece of laminex from a stack of sheets stored in a rack and in the course of doing so, a corner of the piece of laminex struck the respondent on the chin, causing a laceration requiring stitches – the respondent subsequently developed a post-traumatic stress disorder associated with depression – held that the trial judge’s findings of negligence and contributory negligence (to the extent of 20 per cent) were justified on the evidence, but that the judgment for $16,000 should be reduced to $12,000 inclusive of interest – appeal dismissed as to liability but allowed as to quantum of damages – cross appeals dismissed.

Representation

Appellants: STEWART FERGUSON AND MARIA FERGUSON T/AS REEDY’S JOINERY & HARDWARE

Counsel: MR R SOULIO WITH HIM MR M ROBERTS – Solicitors: DOHERTYS

Respondent: STEPHEN DAVID MAUR

In Person

SCCIV-03-645

Judgment No. [2004] SASC 22

23 January 2004

On Appeal from DISTRICT COURT (HIS HONOUR JUDGE BRIGHT)

(Full Court: Prior, Perry and Gray JJ)

FERGUSON v MAUR

[2004] SASC 22

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Full Court: Prior J, Perry and Gray JJ

1. PRIOR J. I agree with the reasons prepared by Perry J and with the orders he proposes.

2. PERRY J. This is an appeal by the defendants from the judgment given against them following the trial of an action in

the civil jurisdiction of the District Court.

3. The respondent, Mr Maur, brought two separate proceedings in the District Court.

4. The first related to an incident which occurred on 15 December 1997 (“the hardware incident”).

5. The second arose out of an incident which occurred on 28 June 1998 (“The Planet incident”).

The Hardware Incident

6. In these proceedings [1] Mr Maur sued the appellants, Stuart and Maria Ferguson trading as Reedy’s Joinery and Hardware.

7. On the day in question he went to the defendants’ business premises at Churchill Road, Prospect. He spoke to Mr Ferguson at the front counter, and sought some off-cuts of laminex.

8. They both went to a rack containing sheets of laminex. While Mr Maur was standing near Mr Ferguson the latter pulled out a sheet of laminex. During the course of doing so, a corner of the sheet struck Mr Maur on the chin.

9. He alleges that in consequence he suffered what can best be described as diffuse physical injuries and a severe posttraumatic stress disorder associated with depression.

The Planet Incident

10. This occurred about six months after the hardware incident.

11. On the evening of 28 June 1998, Mr Maur attended The Planet nightclub in Pirie Street. Later that evening he found himself at the Royal Adelaide Hospital, having suffered concussion and other injuries. He has no recall as to how he came to be injured. His last memory is sitting in the nightclub drinking a glass of orange juice.

12. Mr Maur sued Players Pty Ltd trading as The Planet and also Colin Smith, claiming damages.[2]

13. Video footage showed Mr Maur being ejected through the front door of the premises of the nightclub by several people identified as security staff.

14. There was evidence that after Mr Maur had been ejected from the club and while he was lying in the lane by the side of the club, he was kicked in the head by Mr Smith.

15. It was asserted by Mr Maur that the defendant Mr Smith was an employee of the nightclub. But the judge found that although Mr Smith had previously worked there as a security officer, he was not employed by them at the time of the incident.

16. It appears from the Royal Adelaide Hospital notes that in consequence of the Planet incident Mr Maur suffered a broken nose, a possible fracture of the right mandible and probable fractures of the right 7th to 9th ribs.

17. Dr Wong, Mr Maur’s general practitioner, gave evidence that the physical injuries attributable to this injury resolved normally over a period of a few months. But once again, there were said to be severe psychological sequelae.

18. At the trial an issue arose as to whether Mr Maur’s apparent psychological reaction, at least to the degree that it was persisting at the time of trial, was due only to the Planet incident, or whether it was attributable to both incidents.

The course of the trial

19. Both actions were tried jointly.

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20. At the trial, Mr Maur represented himself. He behaved in a bizarre fashion. He clearly exaggerated his injuries, and interrupted the proceedings by walking around the courtroom and speaking out of turn. That the hearing, and Mr Maur’s behaviour proved very much a handful for the trial judge, appears from the following passage from the trial judge’s reasons for judgment:

“4 … counsel and an (also unrepresented) defendant had to cope with frequent outbursts from the plaintiff, who was either unaware, or unprepared to recognise the roles they had to play. He frequently called them liars and demanded payment of fanciful sums of money. He interrupted whenever he felt like it and talked over the top of any opposition. He shouted a lot. He walked around the court as he chose, sometimes speaking from the bar table, sometimes from the back of the court, sometimes while invisibly reclining on the public benches. I was not able to control him much. Had he been represented by counsel, I might have had him removed.  As he represented himself, that would have brought proceedings to at least a temporary halt, thereby further prejudicing the defendants. I was loath simply to dismiss the claim.

5 This sort of misbehaviour, while frequent, was not constant. Plainly the plaintiff was excitable and very emotionally involved in his case. His worst behaviour was at times when criticism of his case or contrary evidence was attempted to be put forward.

6 He believes himself to be very severely injured – he often claimed to be dying, but the organic basis for his claims is, at best, slight. ….. He often professed to be in great pain, which caused him to gasp and grimace and to move himself into odd positions, apparently to relieve pain.

7 Having observed him closely for a number of days, I did not form the impression that he was simply a liar. I think he does believe that he is seriously injured. However, the very florid presentations made it quite impossible to form any sensible impression of the amount of pain he suffers. His performance seemed to be designed partly to emphasise to me the pain he really felt, but also to exaggerate it. He was not unaware that he was seeking damages. He often demanded 32 million dollars and, once, a trillion dollars. Again, I believe that these fanciful figures were, at least partly, his way of telling me how serious his case was, rather than an expression of a belief that that was an accurate computation of his entitlement.

…………

12 I have set out these matters only to explain how it came about that, in the end, there was remarkably little evidence properly before me on which to decide the case. If it had been professionally presented, I expect that there would have been a lot more evidence, perhaps sufficient to justify many of his claims, but I can only act on what actually came before me.”

86. Dr Wong’s notes relating to the attendance on 26 June 1998 do not indicate a reference to anything else by way of physical injury other than a complaint of neck injury. However, Dr Wong did ascertain that at that time Mr Maur was taking 100 milligrams of a drug called Zoloft per day. Zoloft is an anti-depressant. I refer later to the circumstances in which it is likely to have been prescribed.

144 However, at the end of the day, there was simply no evidentiary basis established upon which it would be proper to conclude that as a result of the hardware incident he suffered a loss of earning capacity referrable to the hardware incident, which should properly have been reflected in an award of damages on that head. The evidence does not establish that he would have been likely to have found gainful employment between the date of the two incidents, if the hardware incident had not occurred.

145. Given my view as to the relatively short-lived consequences of the hardware incident, as opposed to the Planet incident, which resulted in a much more serious physical and psychological injury, any loss of earning capacity is attributable to the Planet incident to the exclusion of the hardware incident.