Anastasiou v Chubb Security (Australia) Pty Ltd
[2008] VSC 211
•20 June 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 9855 of 2005
| GEORGE ANASTASIOU | Plaintiff |
| v | |
| CHUBB SECURITY (AUSTRALIA) PTY LTD | Defendant |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2-6 June, 10, 11 June 2008 | |
DATE OF JUDGMENT: | 20 June 2008 | |
CASE MAY BE CITED AS: | Anastasiou v Chubb Security (Australia) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 211 | |
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NEGLIGENCE – Employer and employee – Security guard injured while evicting drunken patron – Whether safe system of work – Whether adequate training and instruction – Whether contributory negligence – Damages for pain and suffering – Damages for economic loss.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC and Mr N Bird | BJT Legal Pty Ltd |
| For the Defendant | Mr R Middleton and Ms A Ryan | Wisewoulds |
HIS HONOUR:
The plaintiff claims damages in respect of injuries which he sustained on 7 April 2002 while working as a security guard for the defendant, Chubb Security (Australia) Pty Ltd (“Chubb”) at the Southgate Complex, Southbank.
Background
The plaintiff was born in Cyprus on 12 September 1965. He migrated to Australia with his family at the age of 9, and was educated to Year 11. After being employed in a number of different jobs, he commenced work as a security guard in the early 1990s with Protech Security. Subsequently, he worked with Sterling Security, Westfield, looking after a number of shopping centres. While the plaintiff was working at Westfield, Probe Security bought the business of Sterling Security. The plaintiff continued to work as a security officer at a number of shopping centres including Southland, Doncaster and Airport West. He was mainly stationed at Airport West. While working there he was promoted to a senior guard. He was looking after shops and helping centre management requirements. His duties at that stage did not involve significant crowd control work.
The plaintiff commenced work, while employed with Probe, at Southbank in 1996. He worked rotating shifts, namely, day shift, afternoon shift and night shift. He commenced at Southgate as a retail guard for a couple of years. He was then promoted to the control room, where he worked for a couple more years. In that capacity the plaintiff was monitoring some 32 cameras which were situated throughout the complex. At that time Probe was responsible not only for the security of Southgate, but also for the IBM Tower and the Herald & Weekly Times tower. The plaintiff was working half of his time in the control room, and the other half of his time undertaking patrol duties.
In 2000, the contract which Probe Security had with the proprietors of Southgate was taken over by Chubb. At the same time, Chubb took over a number of the staff who had previously been employed by Probe Security at Southgate, including the plaintiff. At the time of the accident in April 2002, the plaintiff was working as a senior guard.
The plaintiff’s injury occurred when he was assisting to remove an intoxicated person, named Mr Nicholas (“Nicholas”), from the Southgate complex. Nicholas had a short time earlier been evicted from the premises of PJ O’Brien’s Irish Pub (“the pub”) which was located within the complex. The Southgate complex is a multi-level building which is accessible from a number of entrance points. The front of the building abuts the promenade on the southern bank of the Yarra River. The pub is located inside the ground floor. Its entrance opens to the central walkway within the complex. The pub is located about forty metres from the nearest entry to the walkway from Southbank. The walkway is a reasonably large public area, which opens on to a number of retail premises within the complex. Shortly before he was injured, the plaintiff, with another guard, had removed Nicholas from near the door of the pub. They walked him along the walkway for approximately 25 metres, and then turned left into a narrower corridor (“the corridor”) which is about 20 metres in length. About halfway along the corridor is a bend or elbow to the right. The incident in which the plaintiff was injured occurred at that point. Beyond the bend, the corridor leads to self-opening sliding doors. Those doors can only be accessed from the outside by use of an entrance card. Outside the sliding doors is an enclosed loading bay. It was described in evidence as the “Ground West Loading Bay”. There is a door from the loading bay to outside the complex. That door can only be opened with a key.
For a number of months before the incident in which the plaintiff was injured, there had been difficulties arising from the conduct of patrons who had left, or been evicted from, the pub while in an intoxicated state. During that time, staff of Chubb, including the plaintiff, had been involved in moving people away from the vicinity of the pub on many occasions. The plaintiff had been instructed that there was an understanding or arrangement between Chubb and PJ O’Brien’s whereby the security staff of the pub were to remove those patrons from the Southgate complex. However, quite often the staff of PJ O’Brien’s did not comply with that understanding, so that drunken customers, who had either left or been evicted from the pub, remained outside its entrance, thus necessitating the involvement of Chubb staff.
The incident
The incident occurred at about 1.30 am on 7 April 2002. The plaintiff had commenced night shift at 11.00 pm on the previous day. Two other security guards, James Hilton (“Hilton”) and Thu Doan (“Doan”), were working under the plaintiff’s supervision. Sometime after 1.00 am, the staff of PJ O’Brien’s called the control room of Chubb. The plaintiff was in that room with another employee of Chubb, Mr Jeff Griffiths. PJ O’Brien’s requested the assistance of Chubb Security. The plaintiff was the senior guard on duty, and so he attended.
The prelude to the incident, in which the plaintiff was injured, was captured on close circuit cameras. The relevant times are recorded on the film. The main camera was focussed on the scene immediately outside the pub. At 1.28 am, Nicholas was ejected from the pub by security employees of PJ O’Brien’s. He remained in the vicinity of the entrance to the pub, gesticulating angrily, and obviously arguing heatedly with the security staff of PJ O’Brien’s. Hilton and Doan are depicted arriving at the scene at 1.31 am. Neither of them became involved with Nicholas at that point. One minute later the plaintiff arrived. In evidence, he stated that he was then told by PJ O’Brien’s security staff that Nicholas had punched a hole in the wall of the pub, and had wanted to fight a barman. At that stage Nicholas continued to gesture at, and argue with, the security guards of PJ O’Brien’s. The plaintiff spoke to Nicholas, and they moved a short distance away from the door of the pub. Nicholas pushed the plaintiff in the chest. The plaintiff asked him to leave and Nicholas continued to scream and yell at him. The plaintiff told Nicholas that he would call the police if Nicholas did not leave. Nicholas responded: “call the police”. Accordingly, the plaintiff went down the walkway, out of view of the camera. He radioed the control room of Chubb, requesting the control room operator to contact the police. About two minutes later the plaintiff returned to the scene. Nicholas was near the doorway to the pub, gesticulating angrily at the PJ O’Brien’s security guard. He continued to remonstrate and argue during the next three minutes.
At 1.41 am, an elderly couple commenced to enter the pub. Nicholas tried to join them. A security guard from the pub confronted him and pushed him back. The plaintiff then intervened, and wrestled with Nicholas, pushing him backwards away from the door of the pub. Nicholas fell over a large weighing machine and on to his back. The plaintiff helped to raise Nicholas from the ground. He then placed his left arm around Nicholas and tackled him from behind as he was standing. As Nicholas moved, the plaintiff switched to having his right arm behind Nicholas. He then commenced to escort Nicholas down the walkway towards the corridor. At that stage Hilton was on the right hand side of Nicholas, and the plaintiff remained on the left hand side of Nicholas, with his right arm around him.
It was at this point that the vision on the camera ceased. The plaintiff stated that he took Nicholas through the corridor to the Ground West Loading Bay. He said that he had been instructed by Mr Ian Stewart, the security manager of the defendant, that that route should be used when evicting persons from the complex. The plaintiff stated that it was difficult to walk three abreast down the corridor because it was narrow. Accordingly, as they proceeded down the corridor, Hilton let go of Nicholas and walked behind them. The plaintiff still had his arm around Nicholas, who continued to yell and scream. Just before they reached the bend in the corridor, there was a scuffle between Nicholas and the plaintiff, and they both fell to the ground. At the time the plaintiff felt pain in his back and right leg. The plaintiff then, with the help of Hilton, walked Nicholas to the loading bay. By that time, Nicholas had calmed down, and was cooperating. They waited in the loading bay area until the police arrived.
It is common ground that as a result of the incident which occurred in the corridor, the plaintiff sustained a serious lower back injury. The medical evidence was uncontroversial, and accordingly the reports of the treating and examining practitioners were tendered. The main issue in the case was that of liability. I shall return to the plaintiff’s condition, and to the medical evidence, after dealing with the question of liability.
Issues
The plaintiff claims that he was injured as a result of the negligence of the defendant as his employer. The plaintiff’s pleadings underwent a series of amendments at the commencement of the trial. Although a number of particulars of negligence are contained in the further amended statement of claim, the plaintiff has essentially relied on three allegations to sustain his claim. First, he alleges that the defendant failed to ensure that he, and those who were working with him on the evening of the incident, had received proper training as to their duties. Secondly, the plaintiff alleges that the defendant had failed to carry out any, or any adequate, risk assessment associated with the physical eviction of patrons from the Southgate premises, as required by the Manual Handling Regulations 1999. Thirdly, the plaintiff alleges that the defendant had failed to design and implement an adequate system of work, including an appropriate system by which the staff of PJ O’Brien’s would remove from the Southgate premises any patron of the pub who had been ejected from that establishment.
In response, the defendant denies the allegations of negligence, and has alleged that there was contributory negligence on behalf of the plaintiff. Further, the defendant has alleged that, if there was any negligence on its behalf, that negligence was not a cause of the incident. In final address, Mr R Middleton, who appeared with Ms A Ryan on behalf of the defendant, stated that the question of causation was the defendant’s strongest point on the issue of liability.
The defendant’s submissions relating to the issues of causation depend, in large measure, on my findings as to how the incident, in which the plaintiff sustained his back injury, occurred. Mr Middleton submitted that, at the time that the plaintiff fell in the corridor, Nicholas had already been placated, and that the stumble or fall in which the plaintiff was injured was not related to any lack of care on behalf of the defendant. On the other hand, Mr T Tobin SC, who appeared with Mr N Bird for the plaintiff, submitted that I should accept the plaintiff’s evidence that, at the time at which the accident occurred, Nicholas was struggling, and that the plaintiff fell in the course of, and as a result of, that struggle.
Findings as to the fall in the corridor
In light of the above issues, it is appropriate first to make findings as to how the incident in which the plaintiff injured his back occurred.
In his evidence in chief, the plaintiff stated that when he and Nicholas entered the corridor, Nicholas kept yelling and screaming. The corridor was narrow, so that it was very difficult for two people to be on each side of the person who was being escorted down the corridor. He said that the incident in which he fell occurred just before Nicholas and he reached the bend in the corridor. The incident happened very quickly. There was a “bit of a scuffle” and then they both fell to the ground. At that stage Hilton and Doan did not have any involvement with Nicholas. In cross-examination, the plaintiff stated that, as they walked down the corridor, he did not think that Hilton had hold of Nicholas, and he thought that only he (the plaintiff) had hold of Nicholas. Doan was following them some distance behind. The plaintiff stated that he had hold of Nicholas while he was walking down the corridor, because Nicholas was still out of control. The scuffle occurred because, as the plaintiff had hold of him, Nicholas was moving his hands around trying to fight back and get away. The plaintiff did not have Nicholas’s arm restrained at that time. The plaintiff said that the narrow corridor was not a “comfortable” situation. He thought that he did hit the wall in the course of the scuffle. Nicholas was trying to get away and was moving his arms around. Nicholas fell first, and then the plaintiff fell on to the tiles, and got on top of Nicholas. He said that his hip had contact with the tiles. The plaintiff also agreed in cross-examination that in his Worker’s Compensation Claim Form, dated 22 April 2002, he stated that he “tripped”. He said that he probably should not have used the word “tripped”, and that what he meant was there was a bit of a scuffle and they both fell to the ground.
Mr Hilton and Mr Doan also gave evidence, in the course of which they described the incident in which the plaintiff was injured. Mr Hilton stated that because the corridor was narrow, three people could not stand in it side by side, and he thought that at the time of the incident he was behind both Nicholas and the plaintiff. As they proceeded down the corridor Nicholas fell over, and then “George (the plaintiff) tripped up as well”. Hilton could not see what had caused Nicholas to fall, but “he was drunk I would say”. Hilton could not recall whether the plaintiff actually fell to the ground, but he certainly stumbled. After the fall Hilton assisted Nicholas and the plaintiff, and grabbed Nicholas’s arm. At that stage, Nicholas calmed down, and the plaintiff and Hilton escorted Nicholas to the loading dock to wait for the police. In cross-examination, Hilton stated that when Nicholas stumbled or tripped, there was not a fight going on between the plaintiff and him, it was just a stumble or a trip. Nicholas fell over the plaintiff’s right leg. Mr Hilton could not recall if the plaintiff fell to the ground, but he definitely stumbled.
Mr Doan stated that he walked behind the plaintiff and Hilton as they took Nicholas through the corridor. Doan saw Nicholas try to escape, and they “little bit lost balance”. They regained their balance and there was a scuffle. Doan called the control room to contact the police. After that, the plaintiff and Hilton took Nicholas to the loading bay. In cross-examination, Mr Doan stated that the corridor was very small. As they were walking down the corridor, Nicholas was trying to get back to the pub. He was trying to get away, there was a struggle, and both the plaintiff and Nicholas fell. He could not recall whether they actually fell to the ground, but certainly they lost their balance or hit the wall.
Mr Middleton submitted that I should not accept the evidence of the plaintiff, or of Mr Doan, that at the time of the incident in the corridor, there was a scuffle involving the plaintiff and Nicholas. Mr Middleton submitted that the plaintiff has not put forward consistent versions of what occurred on previous occasions. He referred to the manner in which the incident was first pleaded in the statement of claim, and to the different way in which it was described in the further amended statement of claim, which was filed on the first day of the trial. He also referred to the incident report compiled by the plaintiff, and to an incident report compiled by Mr Hilton. The latter document was tendered in evidence pursuant to s 55 of the Evidence Act. In addition, Mr Middleton submitted that the plaintiff’s credit was placed in serious question on two other bases. First, the plaintiff had not disclosed to any of the examining doctors, and had not been frank with the Court about, the nature and extent of a previous back injury sustained by him in 1995. Further, the plaintiff had not been forthcoming to the Court in relation to the amount of work which he had undertaken over the last twelve months as a security guard.
As I shall discuss later in this judgment, I do not consider that the plaintiff has been totally candid concerning the extent of his previous back injury, or, more particularly, concerning the amount of work which he has carried out as a part time security guard in the 12 months preceding the trial of this case. Indeed, Mr Tobin realistically conceded that those two matters adversely affect the plaintiff’s credibility. Nevertheless, I do consider that the plaintiff was honest when he recounted his recollection of how the incident in the corridor occurred. When the plaintiff gave that evidence, I did not detect any tendency by him to fabricate or exaggerate his version of what had happened. Nor was there any element of reconstruction about his evidence. The plaintiff’s account of what happened was quite brief, and relatively short of detail, as might be expected in respect of such an incident.
The plaintiff’s account is supported by the evidence of Mr Doan, who stated that the incident occurred when Nicholas tried to get away, and there was a struggle, as a result of which both the plaintiff and Nicholas either fell to the ground or stumbled. Although Mr Hilton did not recall seeing a scuffle or struggle between the plaintiff and Nicholas, nevertheless he attributed the fall to the drunken state of Nicholas.
In addition, the plaintiff’s account of what occurred in the corridor is supported by the demeanour and conduct of Nicholas as depicted on the video, shortly before he entered the corridor. During the period of 13 minutes between the time that Nicholas was evicted from the pub, and when he grappled with the plaintiff outside the door of the pub before they fell over the scales, Nicholas had been acting in an agitated, aggressive and disorderly manner. It is not clear from the video whether Nicholas calmed down measurably after he fell over the scale. However, his conduct was such as to require the plaintiff to place his arm firmly around Nicholas’s waist, with Hilton taking up a position on the other side of Nicholas. The conduct and demeanour of Nicholas during the period preceding the plaintiff taking him under control outside the pub supports the evidence of the plaintiff and Doan that, when they were walking along the corridor, Nicholas was similarly disorderly and aggressive.
I do not consider that the documents, to which Mr Middleton referred in his final address, contradict the plaintiff’s account, or are so inconsistent with it as to persuade me to reject that account. In the original statement of claim, it was pleaded that the fall occurred when the patron (Nicholas) “lunged forward causing the plaintiff to slip, lose balance and fall”. That description was changed in the further amended statement of claim, which alleged that the incident occurred when the patron “scuffled with the plaintiff causing the plaintiff to fall”. Pausing there, both incidents describe conduct by the patron (Nicholas) which caused the plaintiff to sustain a fall. The incident report completed by the plaintiff on 7 April 2002 did not describe the incident at all. It simply described the injury which the plaintiff was then suffering. However, the report form did not contain any section in which the plaintiff was required to describe the incident. His omission to do so could hardly, in those circumstances, be described as being inconsistent with the version given by the plaintiff in Court. Similarly, the incident report filed by Mr Hilton described the circumstances in which the patron was evicted from the premises. In the last sentence, Hilton noted that the plaintiff had injured his right leg while removing the offender from the site. Clearly, the incident report form filled out by Mr Hilton was intended to describe the circumstances pertaining to the removal of the patron, and not to be a report of the plaintiff’s injury and fall. It does not contradict the evidence of the plaintiff or of Mr Doan.
Accordingly, I am satisfied that the incident, in which the plaintiff was injured in the corridor, occurred in the circumstances described by the plaintiff. Thus, I accept that as he and Nicholas approached the bend in the corridor, there was a scuffle instigated by Nicholas, which caused them both to fall.
I also accept the evidence of the plaintiff that while he was walking along the corridor, he was still holding Nicholas with his arm around the latter’s body.
Allegations of negligence
As I have stated, on the issue of liability, the plaintiff’s claim that the defendant breached its duty of care to him is based on three propositions which relate to the level of training of himself and his fellow employees, the failure of the defendant to carry out an adequate risk assessment in relation to evicting patrons from Southgate, and the failure of the plaintiff to design and implement an appropriate system of work for carrying out that function. I now turn to the evidence in relation to those aspects of the case.
As I stated earlier, the plaintiff commenced work as a security guard in the early 1990s. He began his employment with Probe at Southbank in 1996, and remained there when Probe’s contract was taken over by the defendant in 2000. The plaintiff had worked as a retail guard, and then in the control room. As a control operator, 50 percent of his work involved patrol duties, and the other 50 percent was based in the control room. When he was later promoted to senior security officer, 70 percent of his work was in the control room, and 30 percent was in the retail section or the two towers. The plaintiff stated that he did not receive any training at all in relation to the physical technique of arresting, restraining or evicting people. Neither Probe nor the defendant provided any training in how to carry out those functions. The plaintiff had not been given any instruction as to what grip to use when evicting persons from the premises. He chose the method of putting his arm around Nicholas by using what he described as his “common sense”. He had previously escorted people down the corridor, and had found it difficult to walk down that part with three abreast. I interpolate that it was agreed by counsel that the corridor was five feet wide.
The plaintiff stated that the problems with PJ O’Brien’s had been occurring for a long time before the incident. The security personnel of PJ O’Brien’s would request assistance when there was trouble at the pub. The plaintiff had made complaints to Mr Ian Stewart, the defendant’s security manager. Mr Stewart had acknowledged those complaints. He said that it was the responsibility of PJ O’Brien’s security to move the patrons on. However, there were different guards working at the pub at different times. Some of PJ O’Brien’s guards would move the patrons out of the complex, but others would not do so, and would rely on the defendant’s security guards to carry out that function. The plaintiff stated that in the past months the defendant’s guards, including himself, had been involved in moving other people away from PJ O’Brien’s premises on many occasions. He said that he did not know exactly what he should be doing. He said “one minute we would be told don’t get involved with PJ O’Brien’s, their security is supposed to take out their drunken patrons”. However, the staff of PJ O’Brien’s would not do their job, and a lot of times would not assist in the removal of patrons from outside their premises. The plaintiff stated that he was not aware of the defendant ever engaging in any risk assessment as to the task of removing a patron from outside PJ O’Brien’s. He was not consulted by the defendant in relation to the risks associated with that task. He did not at any time see any document or instructions relating to the method to be employed in taking people away from the front of PJ O’Brien’s. The plaintiff further stated that Mr Doan did not have any training in restraint or control of persons, and that he was a very slim person. Mr Hilton did not have any training in the restraint or arrest of persons. He was not very fit and did not evince much willingness or capacity to engage physically in the restraint of persons at the premises.
In cross-examination, the plaintiff agreed that he had described himself as a security guard and a crowd controller. He was a senior guard at the time at which the defendant took over the operation of Probe at Southgate, and on the night of the incident he was the “boss” of the shift. Before he commenced at Southgate, he had worked as a security guard at other shopping complexes. On occasions, he had been required to attend upon an unruly shopper or patron of those complexes.
The plaintiff confirmed in cross-examination that when he commenced work with Probe, he had a combined security and crowd control licence. He had undergone courses with Probe and the defendant. When he obtained his first qualification for the licence, he completed a first aid test, and also did a test which involved answering questions. He attended a course at Probe’s premises for one week. During that course, he was taught subjects relating to matters pertaining to security, such as powers of arrest, and how to deal with people. He had been trained in what force he could legally apply when evicting people from the premises. However, he did not receive any training as to how to physically handle people when he was evicting them. After his initial training course with Probe, the plaintiff later did an upgrade for a Level 3 certificate in 2000 when the defendant took over the contract. He said that in order to obtain the Level 3 upgrade he had to study a book, and answer written questions. The course was funded by the defendant and the government. Although the certificate was issued by Chisholm Institute, the plaintiff did not attend there, but did the course at Southbank. He said that he did not receive any practical training in the physical techniques of handling people, such as how to disarm or disable them. He was not given any demonstration or practical training on that aspect. He was not taught, as part of his basic training, that he should take hold of, and immobilise, the arm of the person being restrained or evicted.
The plaintiff agreed in cross-examination that before the incident he had not complained that the corridor was an inappropriate route by which to evict people. He said that after a patron had been escorted through the corridor, and through the automatic door, the patron could not re-enter the premises. When the patron was evicted from the outside door, it was difficult for them to re-enter the complex. He reiterated that the staff of the defendant had had constant problems with patrons from PJ O’Brien’s. He said that the defendant’s staff had not been instructed as to what to do. Every weekend there were fights and troubles, and the guards did not know what to do in those situations. He agreed that efforts had been made to have PJ O’Brien’s evict the patrons out of the whole complex, but that did not always happen.
In re-examination, the plaintiff said that he did not recall having to deal previously with a patron behaving as Nicholas did. He said that the course for the upgrade to his Level 3 security did not involve any practical training in restraint or grip or handling of people. He had not been given any instruction or training as to how to grip, hold or restrain another person in the course of his duties. He had never seen Mr Doan grip or restrain anyone before. By nature Doan was disinclined to get involved in such incidents. He was very small and timid. The plaintiff was not aware whether Mr Hilton had any training in relation to gripping or handling people. The plaintiff also stated that he did not have any authority to tell the staff of PJ O’Brien’s what they should do. He did not receive any response from the defendant to the complaints which he made as to the problems associated with the clientele of PJ O’Brien’s.
Mr Hilton stated in his evidence that he first commenced work as a security officer in October 2001, when he secured employment as a security guard at Southgate with the defendant. When he commenced his employment, he did first aid training, and learned about crowd control and looking after people in case of fires and other such emergencies. However, he received no training in how to grip, subdue, restrain or evict persons. He said that he was taught to give the person who was being evicted an option, by telling such a person that he would call the police unless the patron did not leave. Mr Hilton understood that none of the other employees had any training in the physical techniques of arresting and controlling people. He had not seen Mr Doan involve himself physically in the eviction of anyone else. He said that Doan was not a person who was inclined to become physically involved in such an incident.
Mr Hilton agreed that between the commencement of his employment in October 2001 and the date of the incident in which the plaintiff was injured, regularly there were problems with patrons evicted from PJ O’Brien’s premises. He understood that PJ O’Brien’s security officers were meant to remove those people from the Southgate centre. However, they did not do that very often, and on most occasions the defendant’s guards had to carry out the eviction. Mr Hilton was not given any instruction by the defendant or Mr Stewart as to how to deal with the problem, if PJ O’Brien’s staff did not remove evicted patrons from the complex. There was no system in place by which the defendant’s staff should remove those persons from the premises. Mr Hilton stated that the corridor was quite narrow and confined. As a result three people did not fit in it side by side, and therefore, at the time of the incident, he was walking behind the plaintiff and Nicholas.
In cross-examination, Mr Hilton stated that in order to obtain his licence he had done a two week basic training course. He was taught the theory of how to be a security guard. At the conclusion of the course he sat an examination, and obtained his licence. He said he was not taught how to apprehend offenders. He was taught about his powers of arrest and his right to use reasonable force. He agreed that it was his role to protect the amenity of the Southgate facility. He said that before 7 April 2002 he had not been involved in the eviction of people through the corridor at Southgate. In fact, he had never had to manhandle anyone in the course of his employment.
In re-examination, Mr Hilton said that at the time of the incident he believed it was PJ O’Brien’s responsibility to remove persons from outside their premises. However, he did not receive any instruction as to what to do with those people. There was no coordination between the defendant’s staff and PJ O’Brien’s staff. He was not given any instruction as to the demarcation of the roles of both organisations. Mr Hilton stated that he had no expertise in taking hold of and controlling a person’s body, particularly the body of an inebriated person who was struggling.
Mr Doan also gave evidence. He commenced work as a security guard with Probe at Southgate in September 1996. He undertook a course in order to obtain his security licence. As part of that course he learned the theory of how he could use reasonable force in the case of an arrest. He was not taught how to grip or take hold of someone in the course of an arrest or eviction. He said that when he was working at Southgate there were some problems with PJ O’Brien’s on Friday and Saturday nights. He did not have any instruction whether he, as a Chubb security guard, should remove from the Southgate complex customers who had been evicted from PJ O’Brien’s. He described his role on the night of the incident as a support role, to keep in radio contact with the control room so that the police could be contacted if necessary. In cross-examination, Mr Doan said that he had a combined security guard and crowd control licence. In basic training, he had been taught to deal with potential conflicts by negotiation. He said if the issue escalated, he was to call for back up by way of a two way radio. If all else failed, he could resort to using reasonable force to restrain and evict a patron. His understanding was that if persons who were misbehaving were in the public area, then the defendant’s security guards had to deal with them, whether or not they had come from O’Brien’s.
The plaintiff also called Mr Bill Kiriakoudis to give evidence. Mr Kiriakoudis commenced his work with Probe at Southgate in September 1997. In order to obtain his licence he did a course with Probe. He was not taught how to manually hold people in that course. Subsequently, before April 2002, he did an upgrade to Level 3. However, that course was not practical. It was based on written questions and reading material. When Mr Kiriakoudis was at Southgate he was promoted to a senior guard, and then subsequently became second in charge. Mr Stewart, the security manager of the defendant, was Mr Kiriakoudis’ superior in 2000.
Mr Kiriakoudis stated that the defendant’s staff worked rotating shifts. There was no system of providing a particular mix of staff on a shift, catering for the experience and capabilities of the staff. The defendant did not keep a register as to the particular skills or training which an employee might have.
Mr Kiriakoudis stated that, at the time of the incident in which the plaintiff was injured, there had been regular incidents at the pub which had required the intervention of security staff. Typically the incidents involved unruly behaviour of patrons who had been evicted from the pub. Mr Kiriakoudis understood that it was the role of PJ O’Brien’s security to evict those patrons from the complex through Ground West Loading Bay. Sometimes the defendant’s staff became involved, if PJ O’Brien’s did not have enough staff. Mr Kiriakoudis was not aware of any agreement between the defendant’s staff and PJ O’Brien’s as to the handover of people being evicted, or as to the way in which the defendant’s staff were to become involved in the evictions.
In the course of his evidence in chief, Mr Kiriakoudis viewed the video of the incident outside PJ O’Brien’s. He said that the staff of PJ O’Brien’s should have played a more active role, and should have removed Nicholas from the premises themselves. Mr Kiriakoudis was not aware of any instruction given to the defendant’s staff as to what request they should or could make of PJ O’Brien’s staff to remove such a patron. He was not aware of any agreement between the two organisations which entitled Chubb staff to request PJ O’Brien’s staff to do that. He said that no particular grip, hold or method had been prescribed for the carrying out of the eviction performed by the plaintiff.
In cross-examination, Mr Kiriakoudis stated that in the security guard course he had been taught the theory of how to apply reasonable force. Later, he upgraded to the Level 3 certificate. That upgrade was basically a written assessment. It did not involve a course which he attended. He had been given some work books to take home. He read then and answered questions. He could not recall sitting an examination.
Mr Kiriakoudis said that from the time that he commenced at Southgate to April 2002, he would have played an active role in about a half dozen evictions. As part of the defendant’s duties, if someone from PJ O’Brien’s rang the control room and asked for assistance, help would be given. There was an arrangement by which PJ O’Brien’s staff were to evict people from the premises, but typically that did not always happen. He said that generally the PJ O’Brien staff did evict people not only from the pub, but also out of Southgate.
In viewing the video, Mr Kiriakoudis stated that he did not see anything wrong with the way in which the plaintiff approached Nicholas. He agreed with the suggestion, by Mr Middleton in cross-examination, that the plaintiff carried out the eviction in a “copy book” manner. Mr Kiriakoudis said that he had not been given any practical instruction how to grip people or physically remove them from the premises. Subsequently, in 2004 or 2005, when the security licensing system was overhauled, he received practical training in those matters. He was then taught techniques as to how to grip an arm and how to immobilise people.
Mr Kiriakoudis agreed that the corridor was an appropriate route by which to evict someone. He said that it was a bit narrow, but otherwise it did not pose any problems to the security staff. The narrowness of the corridor served to confine the offender. Once the offender was evicted, it was difficult for him to re-enter the premises.
The final witness who was called on the question of liability was Mr Anthony Zalewski. Mr Zalewski is a former member of the police force who had served for seventeen years. Over the last 30 years he has been involved in lecturing in the field of security and public safety. He has undertaken research and development programs in security and public safety, and has lectured at various tertiary institutions. He is the Chief Executive Officer of the Australian Institute of Public Safety, which he founded in 1990. That institute conducts vocational training courses which are concerned with public safety, occupational health and safety and security training. In that capacity, Mr Zalewski has trained about 50,000 people. Mr Zalewski has also been involved in the development of training packages necessary to enable a person to qualify for a security licence. In addition, he has provided consultancy services on security procedures for a number of substantial institutions.
For the purpose of giving evidence in this case, Mr Zalewski visited the Southgate premises. In the course of his evidence, he viewed the video of the incident outside PJ O’Brien’s Pub, which was the precursor to the incident in which the plaintiff was injured.
Mr Zalewski stated that he developed the first course which was offered for security guards in 1990. That course was initially a two to three day course. It did not involve any practical training in the techniques of gripping or restraining a patron. In 1996, the Level 2 certificate in crowd control was introduced. That course was a nationally accredited program. One of the units of competence required physical skills training at a basic and practical level, which involved restraint holds and escort holds. It involved physical training and it was competency based, so that the participant had to demonstrate his or her competence to do the particular task. The Certificate 2 course had a currency until 2001. Subsequently, in the late 1990s, a Certificate 3 requirement was imposed. In order to obtain Certificate 3, the candidate first had to have obtained a Certificate 2. The Certificate 3 requirement was imposed in 2000. In order to maintain a licence, a security guard had to obtain Certificate 3 qualification.
Mr Zalewski stated that if the Southgate complex security guards had combined security and crowd control licences, he would expect that they had undertaken a pre-licensing course in 1996, which would have contained a unit of physical skills training. The course would have involved the demonstration by the guards of their competence at a practical level. Mr Zalewski stated that in addition to undertaking a pre-licensing course, the guard should also receive on the job training and be involved in ongoing professional development. In 2002, most major employers were involved in professional developmental strategies for their security staff. Employers varied in their commitment to that training, but it was very common in the industry for it to occur.
When the qualifications and training of the plaintiff, Mr Hilton and Mr Doan were put to Mr Zalewski in the course of his evidence, he expressed surprise that they had received no training in the practical application of force in a restraint situation. He said that it would be quite unusual in 2002 for a security guard not to have that level of practical training. He said that if such training had not been received by the guard, the employer should have picked that matter up and rectified it.
Mr Zalewski further stated that if a patron is ejected from licensed premises within a large complex such as Southgate, the security staff from the licensed premises should remove the patron from the complex as well. He said there were many practical and safety reasons for that. The crowd controllers of the licensed premises would be expected to have the appropriate competence and expertise to interact with the patron who was being removed. In addition, a handover of the patron to the complex’s security guards would introduce a new level of communication. It was not good practice for the Southgate security guards to be required to evict patrons who had been ejected from the licensed premises. Security guards of the shopping complex are not necessarily experts in crowd control for late night licensed premises, and it was not their role to become “de facto bouncers” of the licensed premises.
Mr Zalewski stated that as a matter of good common practice in 2002, the security organisation responsible for premises such as Southgate should have carried out a risk assessment of the work place, which took into account both the environment outside the Southgate premises and the internal environment. That risk assessment would also assess matters such as the training of staff, the location of staff, communication strategies, and risks associated with the system falling down. It would take into account the difficulties involved with a licensed premises such as PJ O’Brien’s, which, as late night premises, are and were recognised as high risk operations in the security industry. The risk assessment should be used to design an appropriate security management plan. In designing that system, it would be necessary to know the skills and qualifications of the staff who were to carry out the plan. The security management plan would be used to devise a range of operating procedures. It would also provide for security staff to be trained on the job, and to receive ongoing training against the operating procedures. In addition, as part of that plan, a hierarchy of control should be introduced as to who takes charge at particular times. Such a hierarchy of control was particularly important where there are two organisations – Chubb’s and PJ O’Brien’s – involved. There should be a clear understanding between the parties as to the demarcation of the roles of the personnel of each organisation. If there is no such delineation of duties, then the resolution of a problem is left to the exercise of discretion, which involves high risk.
Mr Zalewski was shown the video of the eviction of Nicholas. He said that the security officers of PJ O’Brien’s did not comply with common industry practice. Once they had evicted Nicholas from the premises, they did little to move him away from the door of the premises, or to communicate properly with him. Further, there was no proper “handover” of Nicholas by the PJ O’Brien’s staff to the Chubb staff. Looking at the video, Mr Zalewski stated that there was a clear deficiency in the training of the Chubb security guards. The plaintiff approached Nicholas incorrectly, and Nicholas was managed inappropriately when he was lifted from the ground after he had fallen from the scales. In particular, the grip which the plaintiff placed on Nicholas, by putting his arm around him, was totally ineffective. Nicholas’s arms remained free, and he was at liberty to escalate that to a physical confrontation. The plaintiff should have applied the “goose neck” grip (involving painful pressure to the wrist) or the “hammer lock” grip (with the patron’s arm up his back). It was bad practice for the offender to be pushed to the ground, because, by picking him up, the guard became vulnerable to attack from behind.
Mr Zalewski also stated that it was inappropriate to use an exit strategy, such as the corridor, where one of the two guards had to let go of the grip on Nicholas. The risk assessment in the planning process should have addressed that problem. In addition, the use of the corridor, in which only one person could hold Nicholas, placed a higher onus on issues such as training and capability.
In cross-examination, Mr Zalewski agreed that there were advantages in using the corridor to evict patrons. It separated the individual from other people, and it was more difficult for Nicholas to break free and get back to the pub if he wanted to. In addition, once he was ejected from the complex, it would be more difficult for him to regain entry to it.
Mr Zalewski stated that the Certificate 2 course, which was developed in 1996, contained a component involving practical training and physical restraint. Subsequently, the Certificate 3 requirement was developed, because it had been recognised that after people obtained Certificate 2, it had been left up to employers to maintain the competence, and some employers had been deficient in that respect. However, one of the deficiencies in the system was that in Victoria an employer could be a registered training organisation both for Level 2 and Level 3 certificates. Thus, the employer could be the assessor of the guard’s competence. The course for certificate 3 focussed on competency rather than just knowledge. The candidate had to demonstrate competence to do the task.
Mr Zalewski stated that on viewing the video, the plaintiff did not display competence in dealing with Nicholas. He said that in such a situation, if it is necessary to resort to reasonable force, the guard should control both limbs of the offender if he is able to. The technique which the plaintiff adopted of putting his arm around Nicholas’s torso involved a huge risk for many reasons. That technique is only effective if the offender does not resist. Where a person had been behaving like Nicholas, the technique was inappropriate.
Mr Zalewski stated in cross-examination that it was common industry practice for the security staff of licensed premises to complete an eviction from a complex such as Southgate. They are the specialist crowd controllers in evicting patrons. He said that that responsibility should have been documented as part of a management plan. Mr Zalewski considered that to his perception, there had been no formal risk assessment conducted by the defendant, and no appropriate security management plan developed. As a consequence, there was no consistency in the conduct of the PJ O’Brien’s security staff and the Chubb security staff. By contrast, at other large organisations such as Crown Casino, and nightclubs, clear instruction is given that there will be no handover of a patron, if there is any resistance by the evicted patron. Mr Zalewski agreed that some accidents involving a security guard are unavoidable. Nonetheless, it is convenient for an employer to blame an employee for an accident. Ordinarily, if there is a proper system of work, with proper supervision, and proper training and levels of competency in physical skills and escorting strategies, accidents such as that which occurred in this case do not occur.
In re-examination, Mr Zalewski was critical of the conduct by security staff of the incident involving Nicholas, as depicted on the video. No-one was taking a lead role for quite some time, during which Mr Nicholas was becoming more irate. The grip used by the plaintiff to restrain Nicholas was inappropriate. It increased the chance of a fall occurring. Mr Zalewski stated that although physical and practical training in restraint, holds and grips had been part of the training for Certificates 2 and 3, nonetheless some providers had failed to provide that type of training.
The defendant did not call any evidence on the issue of liability, notwithstanding that its security manager, Mr Ian Stewart, was identified as being in court during the plaintiff’s evidence. At one stage in the course of cross-examining the plaintiff, Mr Middleton foreshadowed that Mr Stewart would give evidence as to the problem posed by PJ O’Brien’s premises, and the efforts which had been made to have PJ O’Brien’s staff evict people from the whole complex who had been ejected from the pub. However, Mr Stewart was not called to give that, or any other, evidence.
Findings of liability
Mr Middleton submitted that the evidence established that the plaintiff was trained and experienced in the work which he was performing at the time he was injured. The plaintiff had been in the industry for almost 10 years and was a senior guard. He had had some training. He also had the responsibility of teaching new staff their work. The plaintiff’s role was to maintain the ambience of the Southgate complex. That role involved removing or restraining any patron who was conducting himself in an inappropriate way. He submitted that the incident in which the plaintiff was injured was not the result of any lack of care on behalf of the defendant, but was an unavoidable risk inherent in the type of work undertaken by the plaintiff as an experienced security guard.
I do not accept those submissions. In my view the evidence, to which I have referred, clearly establishes that there were significant breaches by the defendant of its duty of care to the plaintiff, as a result of which the plaintiff sustained the injuries in respect of which he claims damages.
First, it is clear that the plaintiff had not been properly trained to do the work required of him. In particular, I accept that, notwithstanding that it was a requirement for Levels 2 and 3 of the certificate that a guard undergo practical physical training in restraining and handling patrons, the plaintiff had not received any such training, either with the defendant, or before he was employed by the defendant. The plaintiff’s evidence to that effect is supported by the evidence of Messrs Doan, Hilton and Kiriakoudis, each of whom stated that they had not received any practical training in how physically to restrain and hold people. It is also supported by the evidence of Mr Zalewski, who stated that, notwithstanding the requirement for such training, there were a number of employers, including the defendant, who had been derelict in that respect. Indeed, the actions of the plaintiff in taking hold of Nicholas outside PJ O’Brien’s pub bespeak a lack of training and expertise on his behalf. Even to the uninitiated, it is clear that his approach to Nicholas was crude, and that his grip on him was ineffective. I am fortified in my conclusion by the fact that Chubb did not call any evidence to contradict the evidence of the plaintiff, or of Messrs Doan, Hilton and Kiriakoudis as to their lack of training.
Similarly, I accept that the plaintiff’s fellow employees, who were working with him that evening, lacked the necessary training and skills to properly support and assist him in evicting Nicholas. Neither Doan nor Hilton had received appropriate training in the physical techniques of handling and restraining patrons at the premises. Indeed, neither of them had had any experience of previously evicting a patron from the Southgate complex. The fact that Mr Kiriakoudis, who was second in charge of the security staff at the complex, would describe the plaintiff’s performance, in evicting Nicholas, as “copy book”, does not speak well of Mr Kiriakoudis’s understanding of proper technique in performing that function. Mr Kiriakoudis’s evidence, in my view, reflects a similar lack of expertise on his behalf.
As I have stated, the defendant did not call any witness to rebut the evidence of the witnesses to whom I have just referred as to their lack of training. Indeed, none of those witnesses were challenged in their evidence that they had not received any practical training.
In addition, there was a total lack of any properly documented protocol or arrangement between the defendant and PJ O’Brien’s, which required the security staff of PJ O’Brien’s to remove from the Southgate complex any patrons, whom they had evicted from the pub. I accept the evidence of Mr Zalewski as to the necessity for such a protocol to be properly developed and formulated in a clear and unequivocal manner. That evidence makes abundant sense. Again, a simple viewing of the video reveals both the practical need for such a protocol to be in place, and the manifest lack of any such protocol on the night in question. After Nicholas was ejected from the PJ O’Brien’s premises, he was left to pace and move around outside it, in close proximity to the doorway, gesticulating and remonstrating angrily. He was yelling loudly, and using abusive language. From time to time the security guards of PJ O’Brien’s would turn their back on Nicholas. The only efforts they made in his direction were to keep him away from the doorway. When the plaintiff arrived, there was no proper handover of Nicholas by PJ O’Brien’s staff to the plaintiff. The plaintiff’s intervention was precipitated by the attempt made by Nicholas to enter the pub in company with the elderly couple who had gone to its door. The plaintiff’s intervention was spontaneous rather than planned, and there was no coordination of it with the PJ O’Brien’s staff. In those circumstances, nothing had been done to placate Nicholas, or to properly defuse the situation by PJ O’Brien’s staff. The whole problem would have been simply avoided if the pub staff had taken hold of Nicholas at an early stage, and ejected him from the complex.
There was an argument in final address as to whether the Manual Handling Regulations 1999 applied to the task performed by the plaintiff. It is not necessary for me to decide that issue, but I do express the view that, in my opinion, those regulations did apply to the work performed by the plaintiff. The regulations require an employer to develop an appropriate risk assessment, where “manual handling”, as defined by the regulations, is involved. In any event, in the circumstances of the work performed by the plaintiff, the defendant’s common law duty of care required the defendant to develop a risk assessment of the type described by Mr Zalewski. That proposition is not borne of the wisdom of hindsight. At the time of the incident, there had been an ongoing problem arising from drunken patrons being ejected from, or leaving, PJ O’Brien’s premises in the early hours of the morning. That problem had been the subject of complaint by the plaintiff to his security manager. Notwithstanding those complaints, nothing had been done to assess the risks that were involved, or to devise an appropriate system for dealing with the problem. As part of the employer’s ordinary duty of care, it behoved the defendant to make an appropriate assessment of the problem and the risks associated with it, and to devise and implement a system by which its staff might appropriately and safely deal with it. This the defendant failed to do entirely.
The claim in this case is based on the defendant’s common law duty of care. It is trite law that the defendant, as an employer, did not have a duty to guarantee the safety of its employees. However, it did have a duty to take reasonable care to protect its employees against unnecessary risks of injury[1]. If there is a reasonable risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a system of work for the performance of that task which eliminates the risk, and by providing adequate safeguards[2]. In fulfilling its duty of care, the employer must take into account, and cater for, the possibility of thoughtlessness, inadvertence, carelessness or misjudgement by the employee[3].
[1]Hamilton v Nuroff (WA) Pty Ltd (1956) 96 CLR 18, 25 (Dixon CJ and Kitto J).
[2]Smith v Broken Hill Pty Ltd (1957) 97 CLR 337, 342 (Taylor J).
[3]McLean v Tedman (1984) 155 CLR 306, 311 - 12 (Mason, Wilson, Brennan and Dawson JJ); Bus v Sydney City Council (1989) 167 CLR 78, 90 (Mason CJ, Deane, Dawson and Toohey JJ); Kulczycki v Metalex Pty Ltd [1995] 2 VR 377, 380 (Tadgell J), 401 - 406 (Ashley J).
In the present case, the work performed by the plaintiff, and his fellow employees, in evicting inebriated and unruly patrons from the complex, was work which necessarily involved a real risk of injury to the plaintiff and his fellow employees. It was essential to the safe performance by them of their work that they be properly trained and practised in such a role. In the present case, some criticism was made by the plaintiff and his counsel of the use of the corridor as a route by which to evict persons from the complex. There were clearly benefits associated with the use of that corridor, including its ability to isolate miscreants from the general public, and to ensure that they did not regain easy access to the complex. However, the narrowness of the corridor made it highly likely, if not inevitable, that only one security guard would be able to hold a miscreant while evicting him or her from the premises. That circumstance, in my view, served to highlight the need for the security staff of the defendant to be properly trained in performing such a task. The defendant clearly failed to provide any, let alone any adequate, training to its staff in the performance of that function. Nor did the defendant take any appropriate steps to ascertain the level of training of its staff, or to ensure that they had the appropriate training and expertise to carry out the functions required of them in evicting patrons from the Southgate premises.
Pausing there, the defendant was, in that single respect, in clear breach of its duty of care to the plaintiff. As I have already found, the plaintiff was injured when he fell during a scuffle with Nicholas in the corridor. At the time of the fall, the plaintiff was not holding Nicholas by an appropriate or safe method of grip. I accept the evidence of Mr Zalewski that the method used by the plaintiff was entirely inappropriate. In re-examination, Mr Zalewski said, and I accept, that with the grip used by the plaintiff of Nicholas, the chances of a fall were substantially increased. The object of the use of a proper grip on an offender is not only to control that person, but is also to prevent both the person and the guard falling. In my view, the breach by the defendant of its duty to properly train the plaintiff was a direct and immediate cause of the fall, which, in all probability, would have been avoided if the plaintiff had had a proper hold of Nicholas.
I also consider that the failure of the defendant to have in place a properly documented, clear set of protocols requiring the PJ O’Brien’s staff to evict from Southgate patrons who had been ejected from the pub, was a breach of the defendant’s duty of care to the plaintiff. I accept Mr Zalewski’s evidence that such a protocol was important, particularly where PJ O’Brien’s had failed to comply with the unwritten understanding that its staff were to evict such persons from the Southgate premises. I accept that the plaintiff had made complaints about the matter to his superior. In my view, it was a breach of the defendant’s duty of care to its staff to fail to ensure that there was in place such a properly documented understanding, thereby eliminating the need for its own staff to be involved with drunken, irate and unruly patrons, such as Nicholas, who had been evicted from PJ O’Brien’s premises. The failure of the defendant to ensure that such a documented understanding was in place was, in my view, a clear breach by it of its duty of care to its staff, including the plaintiff.
In addition, in my view, the defendant breached its duty of care to its staff by failing to make a proper risk assessment of the work performed by the plaintiff at the time of the incident, and to devise an appropriate management plan to cope with it. There had been no risk assessment carried out by the defendant. Nor had it devised any appropriate plan by which its staff were to deal with situations such as that which arose on the night on which the plaintiff was injured. In large measure, the plaintiff and his fellow employees were left to their own devices. The risks associated with that were compounded by the manifest lack of any appropriate training or instruction of the plaintiff or his fellow employees as to how to handle such a situation in a safe and competent manner.
If there were appropriate protocols in place between PJ O’Brien’s and the defendant as to the removal of persons from the complex who had been ejected from PJ O’Brien’s, then the plaintiff would not have been involved in the eviction of Nicholas at the time of the incident. Further, an appropriate risk assessment would have disclosed to the defendant that it was unsafe and inappropriate for the plaintiff, or indeed Hilton or Doan for that matter, to be involved in that function, without them undergoing significantly more training than any of them had received. By failing to implement such a protocol with PJ O’Brien’s, and by failing to undertake an appropriate risk assessment and implement a proper management plan, the defendant placed the plaintiff in the position in which he was performing work for which he was not properly trained or equipped, with the aid of fellow employees who had even less experience, and were even less well equipped to assist him in such a task. In my view, the situation produced by the defendant’s breaches of its duty of care was a recipe for the type of disaster which unfolded on the evening, and which has resulted in significant permanent injury to the plaintiff.
Thus, for the reasons which I have set out above, I am satisfied that the defendant breached its duty of care to the plaintiff, and that the breaches which I have found were each a cause of the incident in which the plaintiff sustained injury, for which he now claims damages.
Contributory negligence
In its amended defence, the defendant pleaded a number of particulars of contributory negligence. In final address, Mr Middleton confined that defence to the particulars specified in paragraphs 13.8 to 13.12 of the defence. Those particulars allege that: If the work caused the plaintiff any difficulty, he failed to notify his superior; if the plaintiff required assistance, he failed to notify his superior; if the work system was inadequate, he failed to report that fact; and if he was incompetent, incapable or inexperienced to perform the work he was carrying out, he failed to inform the defendant, and had represented to the defendant that he had the necessary competence, capability and experience to carry out that work.
I do not accept that any of the particulars of contributory negligence relied on by the defendant are made out. The plaintiff had made complaints to his superior about the difficulties caused by the failure of PJ O’Brien’s staff’s to evict from Southgate patrons who had been ejected from the pub. The plaintiff lacked adequate training and expertise to apprehend that the work system which he was given was inadequate, and he lacked the appropriate competence and training to carry out the work required of him. There is no evidence that the plaintiff had any appreciation that his system of work was inadequate, or that he lacked such expertise. None of those allegations were put to the plaintiff in cross-examination. On the contrary, the plaintiff’s actions on the night in question bespoke a man who did consider himself sufficiently competent to assist in the eviction of Nicholas, albeit that he was misguided in that view. For those reasons, the defence of contributory negligence is not made out on behalf of the defendant.
Damages
The evidence concerning the plaintiff’s injuries did not occupy much time at the trial, because the plaintiff’s medical condition is largely uncontroversial. Consequently, a number of medical reports were tendered, and no doctor attended to give viva voce evidence. The main debate, on the issue of damages, related to the plaintiff’s present and future level of disability. That debate principally arose out of evidence which emerged in the course of cross-examination, concerning the plaintiff’s work as a security guard in the last 12 months, and concerning his current level of social activity. In addition, the medical reports are not recent. Although the plaintiff’s condition is clear, there is a residual question as to the extent to which it currently affects him in his working life and in his social activities.
As I have already stated, when the plaintiff fell, he felt pain in his back and right leg. The pain subsided while he remained at work, but by the time he got home, he felt as if he had bruised his hip and leg. That pain continued while the plaintiff remained at work over the following two weeks. The plaintiff stated that he was in a lot of pain and was not feeling at all well.
Ultimately, the plaintiff consulted his general practitioner, Dr Bongiorno, on 22 April 2002. A CT scan of the plaintiff’s lumbar spine demonstrated a large central disc protrusion at the L 4-5 level, with marked displacement of the thecal sac, and impingement on the right L 4 and L 5 nerve roots. The plaintiff was treated with physiotherapy, but there was no reduction in his pain. He was then sent to Cedar Court Rehabilitation Centre in June 2002. He remained at Cedar Court for a number of weeks, receiving a range of treatment, including psychological treatment. However, there was no improvement in his condition. On his discharge from Cedar Court, the plaintiff continued to see Dr Bongiorno.
Ultimately, Dr Bongiorno referred the plaintiff to Mr Grossbard, an orthopaedic surgeon, who examined the plaintiff on 16 August 2002. Mr Grossbard concluded that the plaintiff had suffered a disc protrusion, the symptoms of which had not resolved. He considered that surgery may ultimately be required, but recommended that the plaintiff first try a course of regular swimming and physiotherapy. The plaintiff was reluctant to go undergo surgery. He commenced swimming and hydrotherapy, which produced some improvement in his pain. In the meantime, he continued to see the physiotherapist and to take medication prescribed by Dr Bongiorno.
Overall, the plaintiff had no improvement in his condition in the first ten months after the incident. In the early hours of Saturday 7 February 2003, he woke in bed, and felt a massive pain through his back radiating to his legs. Although the pain ceased, he suffered a loss of sensation and paralysis in his legs. He had no feeling in the genital area. He became incontinent of urine. His wife called the ambulance. However, when they attended, the ambulance officers refused to move the plaintiff because they could not get the stretcher upstairs. Ultimately, the plaintiff’s family conveyed him to St Vincent’s Hospital. Later that evening he was transferred to the Epworth Hospital. There the plaintiff was examined by Mr De la Harpe. An emergency MRI was ordered. It revealed a very large central disc prolapse which was producing compression of the cauda equina. Despite Mr De la Harpe’s advice, the plaintiff was reluctant to undergo surgery. However a neurosurgeon, Mr Davis, attended, and confirmed Mr De la Harpe’s advice.
Accordingly, on the next day, 8 February, Mr De la Harpe performed a complete laminectomy at the L 4-5 level. Mr De la Harpe, in his report, stated that a “shockingly large fragment” of disc was removed in the operation. There was complete compression of the cauda equina at that level. The operation went without complication, and the plaintiff was returned to the ward.
Immediately after the operation, the pain in the plaintiff’s back reduced. He continued to feel numb in his legs. For some time after surgery he was unable to move his legs. He had an indwelling catheter, and no sensation in his genital region or in his bowels. He was incontinent of bowel motions. After a couple of days he was mobilised on crutches. The plaintiff remained in hospital for 20 days. The pain in his back had ceased, but he had no control over his bladder or bowel function. He was feeling emotionally devastated and terrible. When he was discharged from hospital, he was transferred to the Royal Talbot Rehabilitation Centre at the Austin Hospital. There he had treatment for his bowel and bladder function, and also for his walking. The indwelling catheter was removed. On 24 March 2003 he was discharged home for four days’ leave. By that time he was unable to urinate without using a catheter, and he still had no control over his bowels.
The plaintiff then returned to the Royal Talbot for a further period of four or five days for bowel and bladder treatment. That training was not totally successful. When the plaintiff was discharged from the Royal Talbot Hospital he was using crutches to walk. He continued to use crutches for about six months. He then used a walking stick for a couple of months. By the end of 2003 he was able to walk for 15 to 20 minutes without experiencing pain. The pain the plaintiff now feels is different to what he experienced before the operation. It occurs when he has to put a strain on his back due to the diminished sensation and strength in his legs.
Since the plaintiff’s discharge from the Royal Talbot Rehabilitation in 2003, he has regularly attended the gymnasium. He still goes to the gym four times per week, and does a series of exercises which are designed to increase the strength in his muscles. He also underwent a lengthy period of physiotherapy, but that treatment ceased when WorkCover ceased to pay for it. In addition, the plaintiff commenced treatment with a psychologist, Mr Simon Jacobs in July 2003. He discontinued that treatment at the end of 2007, as he wished to have a break from it. He continues to take painkilling medication prescribed by Dr Bongiorno.
Since the operation in February 2003, the plaintiff has had no sensation in his buttocks, genitals, groins, the backs of his legs, and the back of his calves down to his feet. He has a numb sensation on the front of his legs. He walks with a limp, and his gait is somewhat awkward. He finds it difficult walking on rough surfaces and up hills. His walking has improved a bit, because of the exercises which he has been doing to strengthen his muscles.
The plaintiff has continued to experience incontinence of both his bladder and bowels. He usually catheterises himself once per day to empty out his bladder. He has no sensation of wanting to urinate. The only sensation he has is that he feels a chill. He uses a pad every day. When he takes it off it is usually wet, but sometimes it is dry. The plaintiff receives, about every six weeks, a package containing catheters and pads, which are paid for by WorkCover. The plaintiff also has problems with his bowels. When he urinates he has to sit on the toilet, because he may have bowel accidents. He does not have any sensation when he needs to have a bowel motion. He tries to control the bowel accidents by limiting his diet and his intake of fluids. However, he continues to have bowel accidents daily.
Since the accident, the plaintiff has had no sexual capacity, and no feeling in his groin area. He was not able to have sexual intercourse with his wife before their marital break up, which occurred about six months after his operation at the Epworth Hospital in February 2003. For some years, WorkCover has been paying for Cialis. That medication enables him to sustain an erection. He does not have any feeling in his penile area. He is able to have intercourse, but is unable to have orgasm or ejaculate.
After the plaintiff returned home from the Royal Talbot Hospital, he was not coping emotionally. His relationship with his wife deteriorated, and after six months she left him. He said it would have been terrible for her to continue to live with him. In his evidence in chief, he stated that since his wife left him he has been unable to form any long-term relationship. He does not consider that he has a prospect of forming such a relationship, mainly because of his sexual difficulties.
After the plaintiff’s wife left him, his sister, Maria, came and lived with him for one and a half years. Maria did the cleaning and cooking and all other domestic chores. After Maria left, she and her eldest sister, Sula, continued to help the plaintiff. Approximately 18 months later, an old family friend, Nick Kyrriakou, came to live with the plaintiff. He does most of the cooking, cleaning and other domestic tasks.
In his evidence in chief, the plaintiff stated that on most days he goes swimming and to the gym, and does his exercises. At 5.00 pm each day he visits his sister Sula for a couple of hours. He gets on well with Sula. He has another sister at Seaford, but he does not feel psychologically or physically capable of travelling to see her. The plaintiff’s brother is a security guard. In his evidence in chief, the plaintiff stated that on “a couple of occasions” he had gone with his brother to Leongatha to undertake some security duties there. He described his job as “crowd control”. He said he was not doing much, “just walking around”. He worked for five or six hours in that capacity. He said that physically he was not up to the work, but he felt mentally better as a result of it.
In his evidence, the plaintiff stated that on one occasion in the 1990s he went to hospital for three or four hours with back pain. He did not return to the hospital. By the time he started work at Southgate, he was not having any problems with his back, and was not having any treatment for it. He said that he did not have any other medical condition which would have precluded him from working in the last six years. If he had not been injured, he had intended to remain working as a security guard with the defendant. He enjoyed the work and saw it as a career path available to him. He now feels he might be able to do some part time security work, but he could not do it full-time because of the stress on his body. He has been to rehabilitation with WorkCover, who initially tried to get him back to work, but that did not occur. WorkCover have not stopped payments to the plaintiff for compensation for loss of earnings.
The plaintiff was cross-examined, in some detail, about whether he had previously suffered any back pain, other than that revealed by him in his evidence in chief. In cross-examination, he stated that he only recalled the one occasion of back pain, when he attended the Alfred Hospital in August 1995. He did not consider that that was a complaint of acute back pain. He could not recall being prescribed physiotherapy or medication. With some hesitation, he recalled having an x-ray performed on his back. The plaintiff was unable to recall any other visits to the hospital, either at that time, or previously. In particular. he did not recall attending the Alfred Hospital in May 1990 with a back pain which had been sore for two weeks, and he did not recall having an x-ray or physiotherapy for that condition. Similarly, he did not recall attending the Alfred Hospital again in August 1991. He did recall taking four weeks off work, when he had back pain in August 1995. He was cross-examined about the claim form for benefits under the Accident Compensation Act, which he had signed, in respect of the injury which is the subject of this proceeding. In that form he stated that he had not previously had any pain or disability in the area of his present injury. He explained that omission by stating that he had understood that the question on the claim form related to a previous serious injury.
The medical records of the plaintiff at the Alfred Hospital were tendered in evidence on behalf of the defendant. They revealed that the plaintiff had had a number of visits to that hospital, up to 1995, for injury to his back. They disclose (inter alia) attendances by the plaintiff at the Alfred Hospital in May 1990 for a sore back of two weeks’ duration, in July 1990 for a low back pain caused by weightlifting, in August 1991 for a sore back as a result of body building in the gymnasium, and in August 1995 for an episode of acute back pain while working in the gym. The notes of the last visit state that the plaintiff had sustained a sudden onset of mild pain while lifting weights, which gradually worsened “to the point of being unbearable”. At that time, he told the hospital that five years previously (that is, in 1990) he had had back strain. An x-ray was performed, and he was prescribed Naprosin, Panadeine Forte and bed rest. On 22 September 1995, the hospital records stated that the plaintiff had improved and had made virtually a full recovery, and a return to work was planned on 25 September 1995.
The plaintiff also stated in cross-examination that since he had broken up with his wife, he had had about ten girlfriends, whom he had met at clubs. He said that he had had sexual relations with all of them. The longest relationship lasted for three or four months. His most recent relationship finished two months ago. That relationship lasted three or four weeks, and the plaintiff stated that he had sex with that girlfriend on a lot of occasions. He confirmed that he could not reach a climax or ejaculate, and that he takes Cialis regularly.
The plaintiff was then cross-examined about the work which he has done with his brother. He said that he did a job in Leongatha with his brother six months ago at a nightclub. He was acting as a bouncer, working for five or six hours. He was a passenger in the vehicle driven by his brother to and from Leongatha, a trip of two hours each way. He was paid $120 for the work. He then stated that he had performed that work six or seven times, but had never done it two nights in a row. He said he had worked at the Swan Hotel in Richmond once, and at the club in Leongatha on one occasion. He was paid $120 ($20 per hour) on each occasion. He then stated that he had worked at the Swan Hotel once every month during the last six months before the trial. He said he went there with his brother, and worked as a bouncer on the inside. He was just walking around, and did not have to eject anyone, he was just doing crowd control work. The plaintiff stated that he had not told any doctor of the work that he was doing as a bouncer. Nor had he declared it when, each month, he submitted a claim to WorkCover for benefits. He agreed that he had not been telling WorkCover the truth.
On the next day, in cross-examination, the plaintiff further stated that he had thought again about the work which he had done at Leongatha and the Swan Hotel. He said that he had not carried it out for the last six months, but rather for the last year. He had worked once a month or once every three weeks. He later changed that estimate to once every two or three weeks. He said that he would have worked, during that time, 10 or 20 times. He later said that he would have worked 20 or 30 times. He has not declared his earnings for tax purposes, or to WorkCover. He travels to the workplace with his brother, and he works in company with his brother. His hours of work are 10.00 pm to 3.00 am. He said that the Swan Hotel was quite a safe environment, which was attended by young people. His work at the Swan Hotel is basically crowd control, which is dealing with intoxicated people. However, he has not had to remove, or assist in the physical removal of, any patron from those premises.
In re-examination, the plaintiff stated that he would not have been able to obtain the work which he has performed at the Swan Hotel or Leongatha without his brother being there. He relies on his brother’s presence, because he knows his brother will look out for him, and his brother knows of his injury. He said that he would not get involved, if a fight or fracas occurred. He would not be able to sign an occupational health and safety declaration, such as is required by the defendant, certifying to a prospective employer that he does not possess any medical condition which may restrict his duties. He also said that there has been no improvement in his sexual dysfunction over the last five years, and that it affects his ability to maintain relationships with women.
The plaintiff also called Mr Kyrriakou and his sister, Maria Anastasiou, to give evidence on the issue of his injuries.
Mr Kyrriakou stated that the plaintiff had been very fit before his injury. He was an outgoing person who was the centre of attention with his friends. The plaintiff is now an entirely different character. Mr Kyrriakou has lived at the plaintiff’s house in Kew since 2007. He is in the hospitality industry, and works from 3.00 pm to 11.00 pm on Wednesdays to Sundays. When he is home, the plaintiff is mainly on the sofa, and is reluctant to go out. Mr Kyrriakou does the housework and cleans the bathrooms. He regularly sees the plaintiff’s pads in the toilet, and they are soiled. In cross-examination, Mr Kyrriakou said that he had not seen the plaintiff with a girlfriend at home, and had not seen him go to work. Mr Kyrriakou has not been to a club with the plaintiff, as he (Mr Kyrriakou) does not drink alcohol. He said that if he goes for a walk with the plaintiff, they have to rest every 10 or 15 minutes, as the plaintiff is unable to proceed further. In re-examination, Mr Kyrriakou said that the plaintiff had had a happy marriage before his injury.
Maria Anastasiou stated that before his injury the plaintiff was an outgoing, fun loving person. He lived a full and active life. He had a loving relationship with his wife and they would go out a lot together. They seemed to be very happy together. However, after the plaintiff’s injury, the plaintiff’s wife was unable to cope with the various issues which affected the plaintiff’s health. Maria did all the housework when she moved in with the plaintiff. She said that at that stage he needed full-time care, and he could not cope on his own. Emotionally he would break down a lot, and he was very down in his moods. The plaintiff did not like going out, and would remain at home. Maria stated that the plaintiff had not had any relationships since his marriage failed, because he felt that females were not attracted to him. In cross-examination, Maria stated that when she was living with her brother at Kew, he would go out sometimes, but mainly he was at home. She was not aware how many girlfriends or relationships he had had since his marriage broke up, and she did not know whether the plaintiff had worked.
As I have stated, a large amount of medical reports were tendered in evidence. The most recent report is that of Mr David Brownbill, neurosurgeon, who examined the plaintiff in November 2004. Most of the reports are historical, and there is a substantial amount of repetition in them. I shall therefore be selective in summarising the reports. In particular, I shall concentrate on the reports of the treating doctors, and also the reports which were referred to in final address.
I commence with the reports of Dr Bongiorno. I have referred in part to some of his report. His most recent report is April 2004. Dr Bongiorno noted that since the plaintiff’s laminectomy in February 2003, there had been an improvement in his back pain, but the plaintiff had significant symptoms of urinary retention, faecal incontinence, impotence and depression. The plaintiff had been treated for those conditions and had improved, but he remained “significantly disabled”. At that time, Dr Bongiorno expressed the view that the plaintiff would never be able to return to his former duties, and that he should be re-trained for a lighter occupation.
The defendant also tendered in evidence a report of Dr Bongiorno dated 11 August 2003. That report appeared to be a response to a proposal for a return to work by the plaintiff. In that report, Dr Bongiorno stated that the plaintiff was suffering from depression, caused in part by his inability to return to his previous employment.
Mr De la Harpe, in his main report dated June 2003, stated that he had reviewed the plaintiff since the operation which he performed in February 2003. At that stage the plaintiff was making slow but steady recovery, and his urinary continence was improving. However, impotence was still a problem, and he had been referred to Dr Yee Chan, a urologist, for that problem. Mr De la Harpe stated that it was most likely that the plaintiff would be permanently incapacitated. He considered that probably the plaintiff had had a “grumbling disc rupture” for over 12 months, which had burst in February 2003, “giving him his devastating neurological impairment”. It was unlikely that the plaintiff would ever return to his previous level of activity in the work force, and it was likely he would suffer bladder, bowel and sexual dysfunction because of his injury. In a further short report of July 2003, Mr De la Harpe stated that the plaintiff’s mobility, power and sensation in his legs were such that it would be unsafe for him to drive a motor car.
Mr Yee Chan, a urologist, provided a short report of February 2005. He stated that the plaintiff has a neurogenic bladder, which he is unable to empty completely. He will need intermittent self-catheterisation, and will therefore need a constant supply of urethral catheters.
The plaintiff was also referred to Dr Rodney Syme, a urologist, for assessment on behalf of the defendant in June 2003. On examination, Dr Syme found that the anal sphincter was quite lax and lacking in tone. There was no evidence of any contraction of the sphincter on stretching or with bulbocavernosus reflex stimulation. There was a significant loss of sensation in the sacral dermatomes 1-4, which included the area of the penis, scrotum and perianal areas in the buttocks. Dr Syme concluded that the disc prolapse, which had become acute in February 2003, resulted in a severe cauda equina compression, which was not relieved quickly enough to prevent ongoing neurological effects. The plaintiff’s description of urination is typical of a bladder which seriously lacks sensation and seriously lacks motor power. Those features are typical of a cauda equina lesion. The plaintiff is unable to have an adequate erection and is unable to have intercourse. There is a lack of sensation in the genital and perianal and buttock areas. Again, all those features are consistent with a cauda equina lesion, which is probably incomplete, as the plaintiff is able to achieve some penile tumescence. Dr Syme stated that treatment with either Viagra or Cialis was indicated. (As I have already stated, the plaintiff has been taking Cialis for his sexual dysfunction).
In conclusion, Dr Syme expressed the view that the plaintiff had a severe L 4-5 disc prolapse, causing cauda equina compression. The injury had resulted in total incapacity for work due to weakness and loss of sensation in the legs, continuing pain in the back, and loss of bladder control. Dr Syme stated that the plaintiff had no capacity at that time to return to employment. The injury was then not stable. There was potential for some recovery in the next 12 months, but it was extremely likely there would be residual neurological damage in the long term.
The plaintiff was also examined by Mr Brownbill, consultant neurosurgeon, in November 2004, for the purposes of an assessment pursuant to the AMA Guides (4th Edition). Mr Brownbill had available the reports of Mr De la Harpe and Dr Syme, the report of the CT scan of May 2002, and the report of the MRI scan of February 2003. On examination of the lower limbs, Mr Brownbill noted that both ankle jerks were absent. He also noted that sensation was decreased on the top of both feet and on the outside of the lower legs, and was markedly decreased at the back of the thighs and calves, and in the soles of the feet. The perineum was not examined.
Mr Brownbill stated that that examination showed an extensive loss of sensation in the legs, weakness of foot movements on both sides, and absent ankle jerks. The plaintiff had sustained a huge L 4-5 disc prolapse, which had produced a cauda equina lesion, which had partially resolved following surgical decompression. The plaintiff had no penile erections (without medication), and there was no ejaculation or sensation during intercourse with medication. Bowel and bladder function were disturbed without sensation, and he controlled function by regular active straining. Mr Brownbill stated that the plaintiff had an ongoing partial cauda equina lesion. He had disturbance of the bowel, bladder and sexual functions, resulting from nerve damage within the spinal canal. His impairment had stabilised.
Mr Peter Kudelka, orthopaedic surgeon, examined the plaintiff in May 2003. He confirmed that the plaintiff had sustained nerve damage resulting from the L 4-5 disc rupture, with associated partial cauda equina paraplegia. Mr Kudelka expressed the view that the plaintiff could not carry out the normal range of duties of a security guard. He could return to light duties, but that would involve part time sitting and part time standing. He could train or supervise service personnel in an office environment, monitoring television screens and the like.
The defendant tendered a report of Dr David Elder dated October 2003. Dr Elder is a consultant in the speciality of occupational medicine. In his report he noted that the plaintiff “reluctantly described” that he still had sex three times a week with a girl he then knew. Dr Elder concluded that there were significant physical and psychosocial aspects to the plaintiff’s condition. He was not optimistic that the plaintiff would be able to return to work. There appeared to be a significant conflict between the plaintiff and his employer, and thus a return to work would not be feasible. Dr Elder considered that until a rehabilitation physician became involved from a treating and managing aspect, the plaintiff would continue to be certified as completely incapacitated for employment.
A number of reports were also tendered in evidence relating to the plaintiff’s psychological condition. His treating psychologist, Mr Jacobs, has provided two reports which were tendered. In those reports, he described the plaintiff as being depressed, stressed and anxious about his future work prospects and social functioning. He was taking anti-depressant medication. He had undergone counselling on a regular basis since his first visit in July 2003. The plaintiff was depressed, and was suffering from post traumatic stress symptoms resulting from the pain in his back and the disruption to his life. Although some gains had been made, the plaintiff had found it difficult to sustain a positive outlook. There was a strong relationship between the plaintiff’s physical and psychological symptoms.
Dr David Weissman, a consultant psychiatrist, examined the plaintiff on behalf of the defendant in October 2003. Dr Weissman noted that the plaintiff took Zoloft anti-depressant medication 50 mg daily over the last four or five months. He considered that the plaintiff had developed an adjustment disorder with depressed mood of moderate severity. The prognosis was uncertain and guarded, because the plaintiff still had moderate depressive symptoms which had not stabilised. He should continue to see his psychologist for at least another nine months, and his anti-depressant medication should be increased to 100 mg daily. With appropriate medication and treatment, Dr Weissman expected that there would be some improvement in the plaintiff’s mental state, so that from a psychiatric point of view he would become fit for at least partial pre-injury duties.
Dr John Douglas, a psychiatrist, also examined the plaintiff on behalf of the defendant in December 2004. Dr Douglas noted that the plaintiff was then taking Zoloft at 200 mg per day. He also concluded that the plaintiff had an adjustment disorder with depressed mood. The impairment was secondary to, and a consequence of, the back injury.
The defendant tendered in evidence, and relied on, a report of Dr Alan Jager, psychiatrist, who examined the plaintiff on behalf of the defendant in June 2003. Dr Jager concluded that the plaintiff fulfilled the diagnostic criteria for a major depressive disorder. He recommended that the plaintiff commence treatment with anti-depressant medication.
Conclusion on damages
In light of the above evidence, it is undisputed that, as a consequence of the incident in which he fell at work on 7 April 2002, the plaintiff suffered a very severe lower back injury, which, ten months later, developed into a large prolapse with cauda equina compression. The medical evidence is unanimous that the plaintiff has thereby sustained a partial permanent cauda equina lesion, which has resulted in impairment of his sexual function, and impairment of his control and function of his bowel and bladder.
In cross-examination, two main issues emerged, each of which impacted on the plaintiff’s credibility in relation to his current state of disability. First, it is clear that the plaintiff has not been candid about the extent of his back injury in the 1990s, both when speaking to doctors who examined him for this case, and in giving evidence in Court. I should interpolate that the matters relating to the plaintiff’s previous back injury were relied on by the defendant solely for the purposes of credit. The defendant did not contend, nor lead any evidence to support the proposition, that the previous injury to the plaintiff’s back had any role in his current disability. Secondly, the plaintiff has been even less candid with this Court, and with WorkCover, about the amount of work which he has been performing in the last 12 months as a security guard. The evidence which was extracted from him in cross-examination was revealed piece-meal, and with a degree of reluctance.
Notwithstanding my reservations as to the plaintiff’s credit on those two matters, I do not consider that he has exaggerated his evidence in describing the extent to which he is disabled in his sexual function, in his bowel function or in his bladder function. The medical evidence clearly supports the plaintiff’s own testimony that he has no sexual function without the aid of medication. By using Cialis he is able to achieve erection, but he is unable to ejaculate. The medical evidence also supports the plaintiff’s testimony as to his problems with his bladder and bowels. I accept that he does need regularly to use a catheter in order to empty his bladder, and that he requires a pad in order to cater for his incontinence. Equally, I accept that he has bowel incontinence. It does appear that the plaintiff has achieved some degree of control of his bowel and bladder functions by regulating his diet, and by regulating his fluid intake.
I also accept that the plaintiff does suffer from a reasonably significant disability to both of his legs. The evidence of Mr Brownbill and Mr De la Harpe support the plaintiff’s complaints of numbness and lack of strength and agility in his legs. From a functional point of view, the plaintiff has achieved some improvement by a conscientious regime undertaken by him in the gymnasium. His improvement is sufficient to have enabled him to feel confident to undertake some work as a security guard in the last 12 months. Nevertheless, I accept that the plaintiff is significantly disabled in that respect. I also accept that, while most of his back pain has been eliminated by the operation performed by Mr De la Harpe, there is still some mild ongoing disability in that respect, particularly when he walks too far.
I also accept that the plaintiff has suffered from, and continues to suffer from, the psychological problems described by Mr Jacobs, and confirmed by Dr Weissman and Dr Jager. The psychological and psychiatric reports are out of date. However, they do establish that, in the period of two years after the plaintiff’s accident, he was suffering substantially from a psychological reaction to his physical injuries. The plaintiff’s own evidence is that his level of psychological functioning has improved. No doubt it has been assisted by his regime of gym work and swimming, and by his capacity to undertake some employment in the last 12 months. Nonetheless, I accept the plaintiff’s evidence, as supported by the evidence of Mr Kyrriakou and Maria Anastasiou, that he still suffers from a significant degree of stress and depression as a result of his physical injuries.
It is clear that the plaintiff’s social and work activities are more extensive than as perceived by Mr Kyrriakou and by his sister, Maria Anastasiou. I accept that both those witnesses were honest and candid. However, it does seem that they have not been aware of the plaintiff’s social activities, nor of his recent work activities, as described by the plaintiff in cross-examination. Nonetheless, and bearing that caveat in mind, I do accept that their evidence supports the plaintiff’s evidence that, notwithstanding his level of improvement, he still suffers a significant degree of disability in his ordinary life, and that his enjoyment of life has been substantially diminished by his residual injuries.
Conclusion as to general damages
Thus, in assessing the plaintiff’s general damages, I take into account that the plaintiff has sustained a very serious injury. I have no doubt that the events of February 2003 were particularly frightening for him. During the preceding 10 months he had been subject to significant disability and pain. Although the operation performed by Mr De la Harpe was to a significant extent successful, the plaintiff has been left with permanent and grave injuries. His disability has radically affected his life. He has lost his marriage and has been unable to engage full-time in the employment which he enjoyed, and which he had found fulfilling. I accept that the plaintiff had always intended to remain in work as a security guard, and I have no doubt that he found that work particularly satisfying. For the first two or so years after the injury, I accept that the plaintiff suffered from a significant degree of discomfort and disability. In the last four years the plaintiff has been able to achieve a measure of improvement. Nonetheless, he has remained significantly impaired in important functions which ordinarily a person is entitled to take for granted. His problems with his bladder and bowel control and function are a very substantial impairment of his ability to enjoy his life fully. At the most basic level they are an ongoing embarrassment to him. They limit his ability to participate in a number of functions in life, and no doubt have a severe effect on him psychologically. He is left with the ongoing consciousness that the impairment will never heal, and will be permanent.
Over and above the loss of those two functions is the plaintiff’s loss of sexual function. That loss is almost total, without the aid of appropriate medication. The use of that medication enables the plaintiff to achieve erection, but he has no physical sensations, and cannot reach a climax. Thus he has been deprived of the pleasure and satisfaction ordinarily derived from the act of sexual intercourse. His incapacity significantly comprises his ability to achieve and maintain a lasting relationship. I accept Maria Anastasiou’s evidence that the plaintiff feels that females are not attracted to him, and therefore he is reluctant to seek any long-term commitment with another woman. It must be remembered that the plaintiff’s injury occurred when he was 38 years of age, having been married for about five years. He is now deprived of the ability to father a child by natural means. He has lost his marriage, and, as I have stated, it is unlikely that he will enter into any permanent long-term relationship.
I also accept that as a result of the plaintiff’s injury his working ability has been significantly affected. I shall return to this aspect of the case when considering the plaintiff’s claim for loss of earnings and loss of earning capacity. However, on any view, the plaintiff is unfit to participate in the career which he had chosen, namely, as a full-time security guard. Indeed, given the severity of the plaintiff’s injury, I am somewhat surprised that he has chosen to carry out the part-time work which he has in the last 12 months. It is noteworthy that he is not carrying out that work on medical advice, or after consulting his doctor about the wisdom of it. On any view, given the plaintiff’s disabilities, he has been deprived of the sense of fulfilment and satisfaction ordinarily derived from pursuing the career of his choice. His capacity to work in the future is significantly impaired on a permanent basis.
Bearing all those matters in mind, it is clear that the plaintiff is entitled to a substantial award of general damages for past and future pain, suffering and loss of enjoyment of life. Mr Middleton, in final address, submitted that I should award the plaintiff damages, in respect of this part of his claim, in the sum $150,000 to $175,000. He submitted that I should take a cautious approach to the award of such damages, as the plaintiff has not been forthcoming about his level of recent activity. On the other hand, Mr Tobin submitted that the plaintiff, on any view, has been significantly compromised in the functions relating to his back, bowel, bladder and sexual capacity. On an ongoing basis, he suffers the ignominy attached to his incapacities relating to those basic human functions. On that basis, Mr Tobin has submitted that I should award the plaintiff $300,000 for past and future pain, suffering and loss of enjoyment of life.
Ultimately, the assessment of damages in this category cannot partake of arithmetic precision. On the other hand, it is not based on an intuitive or speculative process of reasoning. It is important that the general damages properly take into account and compensate the plaintiff for his past pain and suffering, his loss of enjoyment over the last six years, and the future disability and loss of enjoyment to which he will be permanently subjected. Bearing in mind the radical way in which the plaintiff’s injury has affected his life, and will continue to affect and impair his enjoyment of it, in my view this is a case in which the plaintiff should be awarded a substantial sum, in excess of the amount proposed by counsel for the defendant. In my view, the appropriate sum of damages to compensate the plaintiff for his past and future pain, suffering and loss of enjoyment of life is the sum of $250,000.
Conclusions concerning claim for loss of earnings and loss of earning capacity
The parties helpfully agreed the relevant wage rates, taxation rates, and superannuation entitlements, for the purposes of assessing the plaintiff’s claim for loss of earnings and loss of earning capacity. The figures were compiled in a table, which was tendered as an exhibit.
The two main issues which arose concerning the plaintiff’s claim for loss of earning capacity relate, first, to the level of his past and future incapacity to work, and, secondly, to the question whether the plaintiff would have worked until the age of 60 or to the age of 65 years.
Unfortunately, there is a paucity of medical evidence proffered by the plaintiff as to the effect of his injuries and disabilities on his past and future earning capacity. As I have already stated, Mr Brownbill performed his examination, and provided his report, for the purposes of an assessment in accordance with the AMA Guides. Mr Brownbill was not asked to, and did not, express an opinion relating to the plaintiff’s work capacity. The general practitioner, Dr Bongiorno, in his report of April 2004 expressed the view that the plaintiff was significantly disabled, and that he would never be able to return to his former duties. He also stated that the plaintiff should be trained for a lighter occupation. That view is supported by the report of Mr De la Harpe of June 2003, in which Mr De la Harpe stated that it was unlikely the plaintiff would ever return to his previous level of activity in the work force.
The views which were expressed by Dr Bongiorno and Mr De la Harpe, while now somewhat out of date, did relate to the condition of the plaintiff which was, and is, permanent. On the other hand, the plaintiff has sustained some functional improvement, no doubt as a result of his swimming and gymnasium work. His involvement in security guard work in the last 12 months is testimony to that level of improvement. As I have already stated, the plaintiff was somewhat reticent about the amount of work which he has performed. I am not confident that he has revealed the full extent of his work activities over the last one or two years. Indeed, Mr Tobin, in final address, realistically acknowledged that that was so, and stated that I would be justified in being “robust” in assessing the plaintiff’s residual work capacity, as evidenced by the plaintiff’s work over the last 12 months or so. I also take into account that the plaintiff’s recent work activities were only brought to light in the course of the trial. The defendant was thus deprived of the opportunity of investigating the plaintiff’s current and past employment, and of making appropriate inquiries in relation to it.
Bearing those matters in mind, in that unsatisfactory state of the evidence, I am required to form some assessment as to the plaintiff’s past and future earning capacity. Mr Middleton submitted that in determining the plaintiff’s claim for loss of past earnings, I should accept that he was 100 percent disabled for the first two years after his accident, that he was two-thirds disabled for the next two years, and that he has been 50 percent disabled over the last two years.
On the other hand Mr Tobin submitted that the plaintiff’s past economic loss (which, without deduction, would total $237,385) should be discounted to $220,000, to cater for the plaintiff’s most recent work capacity as revealed in his evidence.
Taken at its highest, the plaintiff’s evidence in cross-examination disclosed that over the last 12 months he has worked approximately three days each month. As acknowledged by Mr Tobin, in my view I am justified in treating that evidence as an understatement of what the plaintiff has done over the last one or two years. However, given the nature of the plaintiff’s disability, I doubt that it is a significant understatement of that work. Bearing those matters in mind, I consider that it is appropriate to discount the plaintiff’s past loss of earnings over the last two years by 30 percent. I therefore consider that the appropriate sum of damages to be awarded to the plaintiff for his past loss of earnings is the sum of $210,000.
It has been agreed between the parties that the plaintiff has paid taxation of $20,790 on weekly payments of compensation which he has received to date. Accordingly, he is entitled to recover damages, representing that sum, pursuant to the decision of the High Court in Fox v Wood[4].
[4](1981) 148 CLR 438.
I turn then to the question of the assessment of the plaintiff’s loss of future earning capacity. Mr Middleton submitted that I should award damages for that component of the plaintiff’s claim to the age of 60, and that the plaintiff should only be awarded 25 percent of his future loss, in light of the work which he is currently undertaking.
In response, Mr Tobin proffered a rather more elaborate method of computing the plaintiff’s loss of earning future earning capacity. He submitted that the plaintiff’s loss of future earning capacity should be calculated on the basis that the plaintiff would have worked to the age of 65 years if he had not been injured. He submitted that it would be appropriate only to apply a 10 percent discount, rather than a 15 percent discount, for vicissitudes, because the wage rates relied on by the plaintiff do not take into account his prospects for future promotion in the security industry. Mr Tobin submitted that, having performed that calculation, the total should be reduced by an amount constituting the plaintiff’s “retained” earning capacity. Mr Tobin submitted that that retained earning capacity should be assessed at 40 percent, in other words, on the basis that the plaintiff has lost 60 percent of his future earning capacity. He submitted that, given the plaintiff’s current injuries, it is likely that he will only work to the age of 60. Based on that calculation, Mr Tobin submitted therefore that the plaintiff should be awarded the sum of $320,000 for loss of future earning capacity.
The differing submissions by counsel raise three questions. The first issue concerns the age to which it is expected the plaintiff would have worked if he had not been injured. The plaintiff did not give any evidence on that aspect of his claim. On the one hand, the plaintiff was clearly keen on his career as a security guard, and it appears that he derived significant enjoyment from it. On the other hand, the plaintiff’s employment did involve him working rotating shifts, one third of which were worked at night. As the plaintiff progressed, his work may have involved more work in the control room, rather than on the ground as a security guard. Nevertheless, it would seem that a physical component would have remained an essential part of such employment. In those circumstances, I am not satisfied on the balance of probabilities that the plaintiff would have worked to the age of 65 years as a security guard, if he had not been injured. In my view, it is appropriate to assess the plaintiff’s claim for loss of future earning capacity on the basis that he would have worked to the age of 60 years.
The second question concerns the appropriate percentage by which I should discount the plaintiff’s claim for the vicissitudes of life.
The standard discount rate, sanctioned by the High Court, is 15 percent for future vicissitudes. Those vicissitudes take into account both positive and negative factors. In my view, they sufficiently cater for such positive factors as the prospect of promotion, had the plaintiff remained in work. I see no justification for departing from the usual discount rate of 15 percent, which I shall apply in this case.
The final, and most difficult, question concerns the issue of the plaintiff’s residual future work capacity. Again, the paucity of evidence on this topic has rendered my task more difficult. Nonetheless, it is incumbent on me to make some assessment of the plaintiff’s capacity, doing the best that I can.
Notwithstanding the plaintiff’s recent employment, it is clear that he has sustained a substantial and permanent impairment of his ability to undertake the career of his choice. Further, he has limited education, having completed school at Year 11, and not proceeded to any tertiary education. As Mr Tobin correctly points out, he has little by way of transferable skills. Indeed, as I have pointed out, his training as a security guard was lamentably insufficient. In those circumstances I consider that the estimate of the plaintiff’s retained earning capacity of 40 percent proffered by Mr Tobin, is appropriate and realistic, and I intend to apply it in the present case.
On that basis I consider that the plaintiff should be entitled to loss of earning capacity to the age of 60. The appropriate multiplier, agreed by the parties, is $567. It is agreed between the parties that the appropriate net weekly loss, applicable to the plaintiff’s work, is $830. Thus the plaintiff’s undiscounted loss of future earnings is $470,610 ($567 multiplied by 830). Discounted by 15 percent for vicissitudes, that loss is $400,000. On the basis that the plaintiff has a retained earning capacity of 40 percent, it is therefore appropriate to award the plaintiff damages for his loss of future earning capacity of $240,000.
Bearing all those calculations in mind, the plaintiff’s claim for past and future economic loss can thus be calculated as follows:
Loss of past earnings $210,000 Fox v Wood damages $20,790 Damages for loss of future earning capacity $240,000 Total $470,790 Conclusion
I can therefore state my conclusions in this case in summary form as follows:
(1)The plaintiff was injured on 7 April 2002 in the course of his employment with the defendant as a consequence of the negligence of the defendant.
(2)There was no contributory negligence on behalf of the plaintiff.
(3)The plaintiff is entitled to damages consisting of:
(a)General damages for past and future pain, suffering and loss of enjoyment of life $250,000.
(b)Damages for loss of earnings and loss of earning capacity $470,790.
Thus the plaintiff is entitled to judgment for damages totalling the sum of $720,790.
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