Bainbridge v James, Jacotine and Liuzag Custodian Pty Ltd
[2011] VCC 1393
•13 December 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
Case No. CI-10-04252
| IAN BAINBRIDGE | Plaintiff |
| v | |
| EDWARD JAMES and SYLVIA JACOTINE | First Defendants |
| (trading as JAMES LEIGH PROMOTIONS) | |
| and | |
| LIUZAG CUSTODIAN PTY LTD | Second Defendant |
---
| JUDGE: | HIS HONOUR JUDGE SMITH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 26, 27, 28, 31 October, 2, 3, 4, 7, 8 and 9 November 2011 |
| DATE OF JUDGMENT: | 13 December 2011 |
| CASE MAY BE CITED AS: | Bainbridge v James, Jacotine & Liuzag Custodian Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1393 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – damages in respect of injuries caused by criminal assault by a third party – whether the plaintiff was an employee or independent contractor – scope of duty of care owed to the plaintiff – whether either defendant owed a duty of care to take reasonable steps to protect the plaintiff from injury caused by criminal conduct of third party – causation – whether the negligence of either defendant was a cause of the plaintiff’s injuries – what injuries had been caused by or aggravated by the assault – contributory negligence – discharge of jury without verdict.
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram with | Vincent Verduci & Associates |
| Mr N Griffin | ||
| For the First Defendants | Mr M Titshall SC with | Hall & Wilcox |
| Mr S Smith | ||
| For the Second Defendant | Mr J Brett | HWL Ebsworth Lawyers |
| HIS HONOUR: |
1 In the weeks leading up to Christmas of 2007, Ian Bainbridge was working as a “Santa Claus” at the Milleara Shopping Centre (“the Centre”) in Avondale Heights, a suburb of Melbourne.
2 His role was to interact with children and their parents at the Centre, hand out various small gifts such as chocolates to the children, and pose with the children for photographs taken by parents. He performed those duties from a throne set up at the Centre.
3 He had performed virtually identical work at the Centre in the pre-Christmas period in the previous year without incident.
4 On 22 December 2007, Mr Bainbridge was returning from the throne area at the completion of his designated hours and proceeding to the Centre Management Office (“the office”), where he intended to change out of his Santa Claus outfit and into his normal civilian clothes prior to returning home.
5 The office was situated some 100 to 150 metres from the throne area. The last portion of that journey required him to walk up a corridor which led to men’s and women’s toilets and, at the end of the corridor, the office.
6 As he reached a point near the entrance to the men’s toilets, a youth, estimated by Mr Bainbridge to be aged between thirteen and sixteen years old, came from the men’s toilets, abused Mr Bainbridge orally with obscene language and kicked him in the region of his left knee (“the assault”).
7 Mr Bainbridge claims damages in this proceeding in respect of injuries that he alleges were caused by or consequential upon the assault.
8 The first defendants, Edward James Jacotine and Sylvia Jacotine, are the proprietors of a business trading as “James Leigh Promotions”. I shall refer to them in these reasons as “the first defendants”. Edward James is also known as Edward Jacotine. Their business involved the conduct of various promotions. Amongst other things, they conducted food and fuel promotions at various shopping centres, junior singing competitions at such centres and Mother’s Day and Father’s Day promotions. In addition, they also supplied persons to act as Santa Claus at various shopping centres in the pre- Christmas period.
9 The second defendant is the owner, occupier and proprietor of the Centre. The Centre consists of approximately fifteen to twenty shops, a common area and a car park. It is a relatively small shopping centre.
10 Mr Bainbridge alleges that at the relevant time, he was an employee of the first defendants. The first defendants deny this. They allege that they acted as a type of booking agent whereby they obtained for Mr Bainbridge various promotional jobs, usually for a short period of one or a few days.
11 Mr Bainbridge alleges that on the date of the assault, he should have had a security guard accompanying him back from the throne area to the office.
12 In fact, on nearly every occasion on which he had worked as Santa Claus at the Centre in the weeks leading up to Christmas of 2006 and 2007, he had been escorted by a security guard when walking from the office to the throne, and on his later return to the office. Generally, he would proceed to the throne area, perform his duties with the children and return to the office for lunch. He would then return to the throne area for further such duties and at the completion of them, return once more to the office.
13 He alleges that the first defendants owed him a duty, as his employer, to provide him with a safe place of work and a safe system of work. In order to discharge that duty, he alleges that a security guard should have been supplied to escort him on each of his journeys to and from the throne area.
14 In the alternative, Mr Bainbridge alleges that, even if he was not an employee of the first defendants, they nevertheless owed him a duty to exercise reasonable care to protect him from the reasonably foreseeable risk of criminal behaviour by third parties. The first defendants deny that it owed him such a duty of care.
15 The second defendant admits that it was the owner and occupier of the Centre. Mr Bainbridge alleges that it was responsible for the provision of a security guard for the purposes of protecting him from the reasonably foreseeable risk of injury from criminal behaviour by persons present at the Centre whilst he undertook the role of Santa Claus. The second defendant denies that it owed such a duty of care to him.
16 Mr Bainbridge claims damages in respect of pain and suffering. No claim is made in respect of pecuniary loss.
17 The issues to be determined are:
(a)
What was the nature of the relationship between Mr Bainbridge and the first defendants and, in particular, whether he was their employee?
(b)
What was the scope of any duty of care owed by the first defendants to Mr Bainbridge?
(c)
What was the scope of any duty of care owed by the second defendant to Mr Bainbridge?
(d)
Was there any breach by any of the defendants of any duty of care owed respectively by them to Mr Bainbridge?
(e)
Was any breach of duty of care on the part of either the first defendants or the second defendant a cause of injury, loss or damage to Mr Bainbridge?
(f)
In what sum (if any) should Mr Bainbridge be compensated by way of damages?
(g)
Was there contributory negligence on the part of Mr Bainbridge that was a cause of his injuries and, if so, to what extent is it just and equitable to reduce damages in accordance with s.26 of the Wrongs Act 1958?
Background
18 Mr Bainbridge is currently sixty-two years old. He was educated to Year 9 level and left school aged fifteen. He has had a variety of jobs, including those of labourer, painter and decorator, and sales and retail work.
19 From a relatively early age, he encountered financial difficulties. He was declared bankrupt in the late 1970s and then again in the 1990s. He has been convicted of a number of offences relating to dishonesty. In the main, these offences related to writing cheques when he knew there were insufficient funds in his account to honour them, obtaining credit by deception, obtaining credit at times when he was an undischarged bankrupt, and larceny. He admitted to convictions for such offences in May 1970 (at which time he was aged about nineteen or twenty), in August 1970, June 1972, October 1973, December 1974, October 1975, June 1977, May 1979, August 1979, 1991, August 2001 and August 2002.
20 In respect of those convictions, he had been sentenced to a variety of penalties, including good behaviour bonds, community-based orders (involving a work component), fines and to three periods of imprisonment ranging from one month to eight months. In respect of the offences for which he was convicted in 2002, Mr Bainbridge alleged that he had been the victim of a set-up by other persons, notwithstanding that he may have pleaded guilty to charges and been sentenced to a period of imprisonment.
21 For many years Mr Bainbridge enjoyed musical interests, playing the drums professionally, on some occasions accompanying relatively well-known international artists.
22 Prior to the incident at the Centre in December 2007, Mr Bainbridge had suffered from a number of physical injuries and illnesses:
(a) In April 1999, he had fallen whilst in Beechworth and injured his right knee; (b) Soon afterwards, he suffered a stroke and, as a consequence, underwent brain surgery with consequential right-sided weakness and memory problems; (c) In 2001, he underwent a total knee replacement of his right-knee joint. This involved the insertion of a prosthetic knee joint; (d) In 2005, he underwent a further total knee replacement surgery, this time involving his left knee; (e) In addition, he suffered from high blood pressure and had previously suffered a mild heart attack. 23 On any view, Mr Bainbridge’s earlier bilateral total knee replacements constituted significant physical impairment. He was unable to kneel and had difficulty remaining on his feet for extended periods. He had intermittent ongoing symptoms of pain.
24 Following the left total knee replacement in 2005, the condition of that knee was significantly improved, although it appears that he had intermittent symptoms of pain in that knee from time to time for which he consulted his general practitioner.
25 Following his 2005 left total knee replacement surgery, Mr Bainbridge had been able to return to work and was employed by Wyndham Mobility. For a time he was manager of its Bacchus Marsh branch until that business closed down following illness to its owner in about early 2006.
26 At about the time of the closure of that business, Mr Bainbridge coincidentally met Edward James (one of the first defendants), a person whom he had met some years earlier. The meeting occurred at Werribee Plaza where Mr James was involved in running some sort of Elvis Presley contest. The two discussed the possibility of Mr Bainbridge doing such promotions work and, a couple of weeks later, Mr James telephoned him and offered him some work. That offer was accepted. A number of documents were tendered relating to various jobs performed by Mr Bainbridge that had been organised by the first defendants.[1] The last of these was organised in August 2007 and related to his job as Santa Claus for December 2007, during which time the assault the subject of this proceeding occurred.[2]
[1] Exhibits D1-3 to D1-13
[2] Exhibit A
27 The December 2006, Santa Claus duties were performed without incident. Mr Bainbridge said that in that month, he was escorted by a security guard on virtually every journey to and from the throne area. He gave evidence as to what he was told by Mr James concerning the security guard. I shall set out what appear to me to be the relevant parts of that evidence:
Q: “What were you told in 2006 by whom about security guards?--- A:
The shopping centre, to the best of my knowledge, had the security guard there, and escorted the… And he escorted the both of us down to where we were working at the throne, and then took us back. And then when I started to do the one in 2007, Eddie said to me, ‘There’ll be a security guard supplied at all times’.
Q: Eddie is Edward James?--- A: Edward James, correct.[3] . . . Q:
You referred to an arrangement concerning the provision of security guards. Did you have any say in those arrangements; by whom they were supplied, or anything of that nature?---
A:
No. When I was asked by Mr James from James Leigh Promotions to do the job and I just said, ‘I’d love to’ and he said, ‘Now, there will be a security guard to escort you from the centre management’s office to the throne and back. On top of that, the centre management will give you some Santa chocs to give to the kids… And that was basically it.[4]
. . . Q:
Now, correct me if I’m wrong, but I understood your evidence to be that if – that your understanding of what was provided was a security guard to take you from the centre management office to the throne and then from the throne back to the office?---
A: Correct. Q: And that would be so, whether it’s lunchtime or whatever?--- A: Correct. Q:
Start or finish. And you said something today about and that ‘After that’ you said, I think were your words, ‘He would go about his other duties’?---
A: Yes. Q:
And so once he had – I’m still on 06, once he escorted you to the throne, would he then go and walk around the shopping centre? ---
A: Yes, and he’d come back to see if everything was all right.[5] . . . Q:
I just wanted to ask you, to what extent did you have a belief in your own mind as to the need for a security guard in the event that you had hassle problems of the type you referred to in that cross- examination?---
A:
Very difficult to answer because when I got the job with Mr James he just said to me that there would be a security provided at all times, okay? Now whether it was supplied by him or the shopping centre, I don’t know, but he said, ‘You’ll always have a security guard with you,’ and I thought, ‘Okay, no problem,’ and that was it. It never entered my mind for anything and that’s how I was led to believe but as I said, I don’t know who was meant to provide the security guard, whether it was James Leigh Promotions or whether it was the shopping centre but I think I also said to my way of thinking and being at several shopping centres working with James Leigh there’s always been a security guard around again, whether it was supplied by him or the shopping centre, I don’t know.”[6]
[3] Transcript (” T” ) 95
[4] T 108-109
[5] T 203 (in cross-examination)
[6] T 396 (in re-examination)
28 In fact, on nearly every occasion that Mr Bainbridge walked to or from the office and throne, he was escorted by a security guard. During the periods at which Mr Bainbridge sat at Santa’s throne and attended to children, the security guard was not in close proximity. At best, from time to time, the security guard appeared.
29 Mr Bainbridge stated that on the first day of his Santa duties in both December 2006 and December 2007, there were two guards present. On those dates, at the first appearance of Santa for the season at the Centre, he rode into the Centre on a “sleigh” pulled by a number of husky dogs. However, at all other times, there was only one guard in attendance at any time at the Centre. Mr Bainbridge stated that the guard had other duties to attend to whilst he was performing Santa Claus duties in the throne area.
Was the Plaintiff an Employee of the First Defendants?
30 The test as to whether a person is an employee of another has been judicially considered on a number of occasions. Recently, in Boehm v Strongback Pty Ltd,[7] Beach J said:
[7] [2011] VSC 463 at paragraph [18]
“As I have said above, a significant issue in this case is whether the plaintiff was an employee of the defendant or an independent contractor. Much has been written about the differences between employees and independent contractors and how one is to recognise in an individual case whether a person is one or the other. The authorities in this area were recently surveyed by Robson J in Shirreff v Elazac Pty Ltd.[8] Whilst earlier authorities often regarded ‘control’ as the determinative factor in deciding whether someone was an employee or an independent contractor, later authorities have recognised that control (or, more particularly, the right to exercise control) is only one of a number of possibly relevant factors (albeit an important one) in determining the issue. Modern authority is to the effect that it is the totality of the relationship between the parties which must be considered. Relevant factors in determining the nature of the relationship between a person who engages another to perform work and the person so engaged include:
[8] [2010] VSC 381 at paragraphs [125] and [136]
(a) the degree of control which the former can exercise over the latter; (b)
whether what is being supplied is the work and skill of a person (contract of service) or the supply of equipment or its performance (contract for services);
(c)
whether or not the person engaged can set their own hours of work;
(d)
the method of payment (and, in particular, whether payment is determined by hours of service or output or production);
(e)
whether or not income tax is deducted and holiday pay or long service leave or superannuation paid;
(f)
whether or not the person engaged employs employees and/or conducts his business in partnership;
(g)
whether or not there is a power to delegate (send someone else to perform the work); and
(h)
whether or not the person engaged considered the relationship as one of independent contractor.”
31 The decision in Shirreff[9] was recently overturned by the Court of Appeal.[10] At paragraph 30, the Court of Appeal set out, without criticism, the indicia referred to by the trial Judge in determining whether or not a person was an employee or contractor. These were the same indicia as those used by Beach J in Boehm. Indeed, Beach J was a member of the Court of Appeal in Shirreff. I do not consider that the Court of Appeal was in any way critical of the indicia used.
[9] (supra)
[10] Elazac Pty Ltd v Shirreff [2011] VSCA 405
32 Robson J, at first instance, had found that the plaintiff was an employee. The Court of Appeal held that he had not given sufficient weight to various of those indicia; in particular, the degree of control the plaintiff had in how the work was to be performed, the ability of the plaintiff to employ his own staff to perform the work, the ability of the plaintiff to employ outsiders to perform the work, and the fact that the plaintiff operated his own business in partnership with his wife. In all the circumstances, the Court of Appeal held the plaintiff to be an independent contractor.
33 The issue is an important one because, as Robson J said in Shirreff:[11]
“An employer owes a non-delegable duty to an employee to exercise reasonable care in providing a safe place of work and a safe system of work. A standard of care owed to an independent contractor is normally not quite as high as he is normally responsible for the safety of his own system of work”.
[11] (supra) at paragraph [126]
34 Further, the relationship of employer/employee was identified by the High Court in Modbury Triangle Shopping Centre Pty Ltd v Anzil & Anor[12] as an exception to the general rule that a person owes no duty of care to protect another from injury resulting from criminal acts of third parties. I shall return to this issue later in these reasons.
[12] [2000] 176 ALR 411
35 I consider that the question as to whether Mr Bainbridge is an employee of the first defendants or merely an independent contractor is to be determined by examining the totality of the relationship between the two parties.[13]
[13] See Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561 at paragraph [571-2]; Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at paragraph [44]; Stagecraft Ltd v Minister of National Insurance (1952) SC 288 at 297
36 Both counsel for the plaintiff and first defendants discussed in closing submissions a number of what were described as “indicia”, indicating that the conclusion in relation to this issue was in favour of their respective clients.
37 I consider that the relevant matters to be taken into account when reaching a determination on this issue are as follows:
(a)
The degree of control which the first defendants had over the duties of Mr Bainbridge – that is, the right to exercise control. In this case, the dates and hours during which Mr Bainbridge was required to perform the duties as Santa Claus and the rate of pay were laid down in a document prepared by the first defendants and signed by Mr Bainbridge, entitled “Entertainment Booking Contract” dated 9 August 2007.[14] I accept that Mr Bainbridge had no say at all in relation to these matters;
(b)
Mr Bainbridge was given no particular script or instruction as to how he was to perform his role as Santa, presumably being left, to a large degree, to perform the role on the basis of his own childhood memories or possibly on the basis of other Santa Claus performers that he may have seen previously;
(c)
Mr Bainbridge was paid an hourly rate. He was not paid by output or production.;
(d)
It was the first defendants who paid Mr Bainbridge on the basis of the hours worked. He was not paid by the second defendant;
(e) The first defendants did not deduct income tax; (f)
Mr Bainbridge’s understanding was that he was not entitled to holiday pay, long service leave, sick leave, and the first defendants did not make superannuation contributions for him;
(g) As to the perception of the parties of the nature of the relationship: [14] Exhibit A
(i) Mr Bainbridge gave evidence that –
“I was employed by James Leigh Promotions to act as Santa
for the duration – from 8 December right through.”[15]
[15] T 109
I consider this to be a view expressed by him on a matter of law
and should be given little weight.
(ii) There was no evidence from either of the first defendants as to how they perceived their relationship with Mr Bainbridge. Mr James did not give evidence at all. Mrs Jacotine gave evidence, but not on this issue;
(h) On earlier occasions, when performing work provided by the first defendants, Mr Bainbridge had been required to wear a shirt with the name or insignia of James Leigh Promotions on it provided by them. As Santa, he bought his own Santa suit. It had no insignia or name on it; (i) On earlier occasions, he had been required to set up, pack up and lock up equipment supplied by the first defendants and to be used by him;[16]
[16] Exhibit D1-3, D1-4, D1-9 and D1-10
(j)
On an earlier occasion, Mr Bainbridge had been required to drive the first defendants’ van and to transport its equipment;[17]
(k)
The first defendants required Mr Bainbridge to provide a tax invoice to them in respect of all work performed by him. Mr Bainbridge did send such invoices on most occasions that he worked for the first defendants. These may not have been proper tax invoices because he had no registered Australian Business Number;
(l)
Mr James attended at the Centre from time to time in both the 2006 and 2007 Christmas seasons to check how things were going;
(m) Mr Bainbridge did not run a business of his own; (n)
Mr Bainbridge would not have had the right to employ others to perform the Santa duties or to subcontract the Santa duties to others.
[17] Exhibit D1-11
38 I do not consider that any one of the above mentioned indicia is conclusive one way or the other on the employment issue. However, on balance, I am satisfied that Mr Bainbridge has established that he was an employee of the first defendants at the relevant time. In particular, I note that Mr Bainbridge was paid on an hourly basis – his pay was not determined by output or production. His hours and place of work were dictated by the first defendants. He did not run his own business. He had no power to send somebody else to perform the work for which he had been engaged to perform. I conclude that the first defendants had a right to exercise control of him. Mr James attended at the Centre to inspect how Mr Bainbridge was performing his duties. I conclude that if Mr James had considered it necessary to make changes in the presentation of the Santa Clause role, he could have directed Mr Bainbridge accordingly. Further, if Mr James had considered that additional facilities or support were required for Mr Bainbridge, he could have insisted that that these be provided.
39 I am conscious that the first defendants did not deduct income tax instalments nor pay superannuation, holiday pay or long service leave.
40 Insofar as holiday pay, long service leave and sick leave are concerned, I consider that the absence of these is still consistent with Mr Bainbridge being employed on a casual part-time basis by the first defendants. I consider that many such casual employees would rarely have such entitlements.
41 It is the case that, if he was an employee, statutory superannuation contributions should have been made by the first defendants. However, I do not consider that the failure to make such contributions as required by law can be used by the first defendants to support an argument that Mr Bainbridge was not an employee.
The Duty of Care Owed by the First Defendants
42 As a consequence of my finding that the first defendants employed Mr Bainbridge at the relevant time, I consider that the duty of care owed by them to him was a duty to take reasonable care for his safety. This duty, so far as is relevant, included a duty to provide a safe place of work and a duty to provide a safe system of work, although, it is more than merely to provide a safe system –
“An employer’s duty is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer … .”[18]
[18] McLean v Tedman & Brambles Holdings Ltd (1984) 155 CLR 306 at paragraph [12]
43 The employer’s duty is non-delegable.[19] By non-delegable, I consider that an employer cannot avoid liability resulting from failure to provide a safe place or system of work merely by establishing that he has delegated those tasks to another person or that he has made arrangements with another person to attend to those matters.
[19] Kondis v State Transport Authority (1984) 154 CLR 672 at 687-8
Was there a Breach of the Duty of Care by the First Defendants?
44 Notwithstanding some variation in Mr Bainbridge’s evidence as to what was said to him by Mr James concerning the provision of a security guard, I accept that, in substance, at the commencement of both the 2006 and 2007 Christmas seasons, Mr James did advise Mr Bainbridge that he would be provided with a security guard and that the guard would escort him on his journeys to and from the throne area.
45 Mr James elected not to give evidence at the trial. No reason was proffered to explain his absence. In those circumstances, I can more confidently accept the evidence of Mr Bainbridge concerning the conversations he had with Mr James.[20] I therefore accept that, in substance, Mr James advised Mr Bainbridge that such a security guard would be with him on those journeys.
[20] Jones v Dunkel (1959) 101 CLR 298
46 Further, in answer to Interrogatory 3, Mr James swore that “the first defendants expected the second defendant to provide a security guard”.[21]
[21] Exhibit B
47 However, there is no direct evidence as to why it was that Mr James expected the second defendant to provide a security guard or why it was that he told Mr Bainbridge that a security guard would be provided. Counsel for Mr Bainbridge submitted that there were two reasons why I should infer that a security guard was reasonably necessary for the protection of Mr Bainbridge whilst he journeyed to and from the throne area:
(a)
The fact that a security guard had, in fact, escorted Mr Bainbridge on those journeys on nearly every prior occasion. Mr Bainbridge estimated this to be up to 99 per cent of those prior journeys;
(b)
There would have been no reason for Mr James to make any mention of the provision of security guards to Mr Bainbridge unless there was some reason for doing so. The only logical reason, it was submitted, was that Mr James was aware of the need for some protection whilst Mr Bainbridge, in his Santa Claus outfit, proceeded on the journey of up to 150 metres to the office. The basis for such a belief on the part of Mr James was not identified. However, it was submitted that Mr James had experience in dealing with the provision of persons acting as Santa Claus at a number of shopping centres over some years.
48 I consider that I am able to infer that if Mr James had given evidence at the trial, his evidence would not have advanced the case of the first defendants. However, I am not entitled or permitted to speculate as to what that evidence might have been.[22] Further, I am not entitled to use the failure of Mr James to give evidence as a means of filling gaps in evidence presented on behalf of Mr Bainbridge and which would be required in order to establish his case.
[22] O’Donnell v Reichard (1975) VR 916
49 Counsel for the first defendants submitted that, in the event that I found that Mr Bainbridge was an employee of his clients, I should find that there had been no relevant breach of the duty owed by them. That is, that whatever duty was owed by them had been discharged. He relied upon the absence of evidence of any earlier assaults or threatened assaults or aggressive behaviour towards Mr Bainbridge during the course of his performance of his Santa Claus duties. He pointed out that Mr Bainbridge’s evidence was that there had merely been a few instances where some “snide remarks” had been made to him. There was no evidence that, at any time, Mr Bainbridge had been conscious of any threat to himself, nor at any time had he been concerned for his safety. At no time had Mr Bainbridge ever conveyed to Mr James any concern that he may have had about his own safety. Nor had he conveyed to Mr James that there had been a handful of occasions when the security guard had not been present at the time that he was to journey to and from the throne area.
50 I note that Mr Bainbridge makes no allegation that the first defendants were vicariously liable for any possible negligence on the part of the guard on duty on the day in question. There was no allegation of negligence on the part of the guard.
51 Counsel for the first defendants submitted that the evidence was that, on previous occasions, the guard, having escorted Mr Bainbridge to the throne area, then left him and attended to his normal duties in and around the Centre. It was not a case where the guard remained in close contact with Mr Bainbridge during the course of his Santa Claus duties.
52 Mr Bainbridge alleged that the first defendants had breached the duty of care owed by it, in that it failed to provide a safe system of work or a safe place of work. Further, he alleged that the first defendants had failed to provide him with any direction or instruction as to what to do in the event that the security guard was not present when he was due to return to the office. More particularly, he alleged that they had failed to provide him with any direction, warning or instruction not to leave the throne area in the event that the guard was not present and/or not to walk between the throne and the office whilst wearing a Santa Claus outfit and carrying a bell in one hand and a sack in the other unless he was accompanied by a security guard.
53 Mr Bainbridge gave evidence, and I accept, that there was no communication facilities in the area of the throne which would enable him to contact the security guard, centre management or Mr James. He was, effectively, on his own and left to his own devices.
54 The duty of an employer is not an absolute one. It is a duty to act reasonably in all of the circumstances. Counsel for the first defendants referred to the following:
(a) It was a small shopping centre.[23] (b)
Mr Bainbridge’s only perception of any need for a security guard was that he was dressed in a Santa outfit so that he stood out and that a lot of shopping centres had idiots around that could cause problems.[24]
(c)
There had been no incident of violence or abuse or anything of that nature before, other than a few snide remarks.[25]
(d)
The security guard was never present with any regularity other than when he walked Mr Bainbridge to and from the throne area.
(e)
On the few occasions when there was no security guard present when he was due to go back to the office, Mr Bainbridge had been content to make the journey on his own.[26]
(f)
On the occasions that Mr James had called in at the centre to make sure that things were going okay, Mr Bainbridge had not advised him of any problems.[27]
(g)
At no time had Mr Bainbridge ever complained to Mr James about the absence of a guard.
(h)
There was nothing in the evidence that amounted to an admission on the part of Mr James that a guard was reasonably required to protect Mr Bainbridge.
[23] T 376
[24] T 200
[25] T 203
[26] T 206
[27] T 208
55 Counsel for the first defendants submitted that, in the circumstances of the case, there was a remote and small risk that Mr Bainbridge would be exposed to violence in the absence of a security guard. He maintained that, even if the first defendants were an employer, the principles laid down by Mason CJ in Wyong Shire Council v Shirt[28] applied.
“In deciding whether there has been a breach of duty of care, the Tribunal of Fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the Tribunal of Fact to determine what a reasonable man would do by way of response to the risk, taking into account the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action.”
[28] (1980) 146 CLR 40 at paragraph [14]
56 Counsel maintained that a reasonable employer would not have considered it appropriate or necessary to ensure that a security guard was present during those journeys.
57 One of the difficulties facing the first defendants is that they elected to lead no evidence on matters relating to their liability to Mr Bainbridge. Whilst I may not use that election to fill gaps in Mr Bainbridge’s case, I can more readily accept the evidence led by Mr Bainbridge on the issue.
58 The evidence before me is that Mr James expected there to be a security guard present on the journeys referred to and that he told Mr Bainbridge at the commencement of both the 2006 season and the 2007 season that a security guard would be present on those occasions. I consider that I can infer that, in both cases, there was some reason for making those statements. I consider that I can infer that the first defendants did foresee that a person dressed in a Santa Claus outfit walking alone in a shopping centre (even a small one) could well be the butt of aggressive behaviour on the part of irresponsible persons.
59 Further, I note that, in fact, a security guard was provided for Mr Bainbridge on virtually all of the relevant journeys over two Christmas seasons. There is no evidence before me as to whether the security guards who accompanied Mr Bainbridge did so pursuant to some agreement reached between the first defendants and the second defendant, or merely at the direction of the second defendant. Either way, I think it most unlikely that the second defendant would have directed its security guard to accompany Mr Bainbridge on those journeys, or hired a security guard to do so unless it considered that it was reasonably necessary for him to be escorted. I consider it extremely unlikely that such an escort would have been provided for no good reason.
60 The fact that the second defendant may have had good reason for arranging an escort does not necessarily mean that the first defendants were aware of such reasons. However, I do have the evidence that Mr James specifically told Mr Bainbridge that such an escort would be available. I infer from this that he was also aware of some need for protection of Mr Bainbridge during such journeys. The fact that he chose not to give evidence at trial enables me to infer that, had he done so, his evidence would not have advanced the case of the first defendants on the issue.
61 The first defendants would or should have been aware that the final part of the journey to the office involved Mr Bainbridge walking along a corridor, away from the main area of the Centre, in a relatively isolated area and where there were likely to be fewer potential witnesses.
62 On balance, I find that a reasonable employer in the position of the first defendants would have foreseen that a relatively elderly man, dressed up in a Santa Claus outfit and walking alone through the Centre was at risk of oral and physical abuse, and would have provided a security guard to accompany Mr Bainbridge on his journeys to and from the throne area. I find that the provision of a safe system of work and a safe place of work in all the circumstances involved the provision of a security guard.
63 Accordingly, I consider that the first defendants were in breach of their duty to provide Mr Bainbridge with a safe place of work and a safe system of work.
The Duty of Care owed by the Second Defendant
64 In its Defence dated 7 November 2011, the second defendant admitted:
(a) that it was the owner of the Centre; (b) that it arranged for the first defendants to provide it with a “Santa Claus” character for the 2007 Christmas trading period at the Centre. 65 In evidence, Mr Bainbridge stated that he reported to and dealt with a Mr Kevin Donovan, the manager of the Centre. In a written Outline of Submissions, Counsel for the second defendant conceded that Kevin Donovan was an employee of the second defendant.
66 I accept the evidence of Mr Bainbridge that at the commencement of his work as Santa Claus at the Centre, Mr Donovan told him that the security guard would escort him to and from the throne area and that Mr Donovan was able to observe him and the guard departing for the throne regularly.
67 I am able to conclude that the second defendant was the owner, occupier and manager of the Centre. As such, it owed a duty of care to persons on the premises in accordance with s.14B of the Wrongs Act 1958. However, that duty is one restricted to injuries or damage by reason of the state of the premises or things done or omitted to be done in relation to the state of the premises. Such duty would have no relevance to the circumstances in which Mr Bainbridge was injured.
68 The High Court, in Modbury Triangle Shopping Centre Pty Ltd v Anzil,[29] held that whilst occupiers owe a duty of care to persons lawfully on its premises, that duty of care does not extend to taking reasonable care to protect persons from the criminal conduct of third parties, subject to a limited number of exceptions. Gleeson CJ referred to the general rule being that there is no duty to prevent a third party from harming another.[30]
[29] supra
[30] Modbury at paragraph [26]
69 At paragraph [26], Gleeson CJ said:
“Leaving aside contractual obligations, there are circumstances where the relationship between two parties may mean that one has a duty to take reasonable care to protect the other from the criminal behaviour of third parties, random and unpredictable as such behaviour may be. Such relationships may include those between employer and employee, school and pupil, or bailor and bailee.”
70 There was no allegation by the plaintiff or any suggestion in the evidence that the second defendant employed Mr Bainbridge.
71 In Modbury,[31] the fact that injury of the type suffered by the plaintiff was reasonably foreseeable was not considered by the Court, on its own, to be sufficient to create a duty of care on the part of the shopping centre proprietor to take reasonable steps to protect her from an assault of the type that occurred.
[31] Modbury at paragraph [35] per Gleeson CJ and at paragraph [100] per Hayne J.
72 It was not alleged by Mr Bainbridge that the second defendant was negligent in allowing his assailant to enter the premises, or in permitting him to remain on the premises. It was not alleged that the second defendant had any control over the assailant. Rather, Mr Bainbridge alleged that the second defendant owed him a duty to exercise reasonable care to protect him from the reasonably foreseeable risk of criminal behaviour by persons present at the premises whilst he was there undertaking his role of Santa Claus. Particulars were provided as to the circumstances said to have given rise to that duty. These included:
(i)
that Mr Bainbridge was at the Centre as an invitee of the second defendant;
(ii)
that his role as Santa Claus was to entertain customers for the benefit of the second defendant;
(iii)
that he distributed gifts or chocolates provided to him by the second defendant as gifts for children;
(iv)
that the second defendant was responsible for the security of the premises, and employed security staff for that purpose;
(v)
that the second defendant provided changing facilities for Mr Bainbridge at a location some 100 to 150 metres from the throne area, the location of the changing facility and the throne being determined by it;
(vi)
that Mr Bainbridge was moving to and from the throne and was in a position of insecurity and vulnerability to criminal behaviour, and the second defendant knew this;
(vii)
that the risk of someone causing physical injury to Mr Bainbridge whilst dressed as and/or performing his duties as Santa Claus was reasonably foreseeable by the second defendant;
(viii)
that Mr Donovan of the second defendant had told Mr Bainbridge that a security guard would escort him to and from the throne area; and
(ix)
that, in fact, on nearly every occasion, a security guard who apparently worked throughout the Centre did escort him to and from the throne area.
73 I accept that the second defendant was in a position where it could have ensured that a security guard escorted Mr Bainbridge to and from the throne area on every occasion that he made that journey. However, that capacity or ability to do so does not, in my view, give rise to a duty to do so. Gleeson CJ, in Modbury, referred to the “use of the imprecise and beguiling but deceptively simple terms ‘known reliance’ and ‘assumption of responsibility’”.[32] The fact that the second defendant had the capacity to provide a security guard does not mean that it assumed a particular responsibility to do so in order to protect Mr Bainbridge from injury resulting from criminal assault by a third party. Gleeson CJ drew the distinction between “capacity” and “obligation”.[33]
[32] Modbury at paragraph [25]
[33] Modbury at paragraph [23]
74 It might be different if the circumstances were such that the risk of injury to a person on the premises such as Mr Bainbridge was particularly high. At paragraph [30] in Modbury, the Gleeson CJ said:
“There may be circumstances in which, not only is there a foreseeable risk of harm from criminal conduct by a third party, but, in addition, the criminal conduct is attended by such a high degree of foreseeability, and predictability, that it is possible to argue that the case would be taken out of the operation of the general principle and the law may impose a duty to take reasonable steps to prevent it. The possibility that knowledge of previous, preventable, criminal conduct, or of threats of such conduct, could arguably give rise to an exceptional duty, appears to have been suggested in Smith v Littlewoods Ltd.”[34]
[34] [1987] AC 241 at 261
75 One could well envisage circumstances in which the assault, or one similar to it, was attended by a high degree of foreseeability and predictability; for instance, if persons playing the role of Santa Clause at the Centre had frequently been criminally assaulted in the past or if a specific threat had been received by the Centre that the person playing the Santa Claus character would be assaulted.
76 However, the evidence here falls well short of that degree of foreseeability or predictability. The evidence was that in neither of the 2006 or 2007 Christmas seasons was there any assault or threat of any type of criminal conduct to Mr Bainbridge. There was no evidence of any such incident in previous years. There was no evidence of such incidents at other shopping centres at which a Santa Claus character was present. The highest that Mr Bainbridge could put his case in relation to this aspect was his evidence that on a couple of occasions there had been some snide remarks made to him. Mr Bainbridge’s evidence concerning this was as follows:
Q: “Was there ever any incident of violence or abuse or anything of
that nature in 06 towards you?---A:
No, not violence – no violence whatsoever, just – I mean, you heard a few snide remarks but it was just water off a duck’s back.”[35]
[35] T 203
77 In re-examination:
Q: “You said that there haven’t been any acts of violence before, but you said that you had been subjected to snide remarks previously. Do you remember giving that evidence?--- A: Yeah, just snide remarks. Q: What sort of things were said to you?--- A: Oh, nothing in general, just snide remarks. Like, you know, ‘Look at that stupid mongrel’ or, you know, ‘Fancy being dressed up like that’. Just stuff like that. Q: But on any occasion when such remarks have been made, have
there been any attempt to inflict any violence on you?---A: No sir. Q: Where have you been positioned when those sort of remarks have
been made to you?---A: Sitting at the throne.[36] . . . Q: When you were in transit with a security guard were you ever the
subject of any snide remark?---A: No. Q: When you were in transit with Santa (sic), were you ever the
subject of any physical attack of any description?---A: No.”[37] [36] T 391 (in re-examination)
[37] T 392
78 I consider that the degree of foreseeability and predictability of attack on Mr Bainbridge fell well short of that described by the Gleeson CJ in Modbury that might give rise to a relevant duty of care.
79 Mr Bainbridge relied heavily upon the fact that a guard had been made available to escort him to and from the throne on up to 99 per cent of those journeys. However, I consider that that provision by the second defendant cannot, in itself, give rise to the duty alleged.
80 Counsel for Mr Bainbridge submitted that I should infer that the security guard had been provided pursuant to an agreement between the first defendants and the second defendant. There was no evidence of any such term. I do not consider that the evidence enables me to infer that such a term existed. Even if it did, I do not consider that that would give rise to a duty of care of the scope alleged. Such a term, if shown to exist, may have been relevant to contribution proceedings between the defendants but no such term was pleaded by either defendant.
81 Accordingly, I find that the second defendant was under no duty of care to take reasonable steps to protect Mr Bainbridge from injury caused by the criminal assault by the youth at the Centre. The claim against it will be dismissed.
Is the Modbury Principle Restricted to Occupiers?
82 In the event that I am later found to have erred in my conclusion that the first defendants were employers of Mr Bainbridge, and that he was merely a contractor engaged by them to perform as Santa Claus at the Centre, a further issue would arise as to the nature and scope of the duty of care (if any) owed by them to him and as to whether it extended to taking reasonable steps to prevent him suffering injury as a consequence of criminal acts of a third party whilst at the Centre.
83 Counsel for Mr Bainbridge submitted that even if he was not an employee, the duty of care owed by the first defendants would be identical in scope to that owed by an employer. I do not accept this.
84 It was submitted that the principles laid down in Stevens v Brodribb Sawmilling Co Pty Ltd[38] indicated that a similar duty could be owed in certain circumstances to contractors. Whilst this is no doubt so, the facts here are very different from those in Brodribb. There, a principal contractor engaged numerous subcontractors to perform duties in a forestry area. Depending on the circumstances, the principal contractor might have been under a duty to co-ordinate the various activities of those subcontractors so as to avoid risk of injury to them. Whether such a duty had been breached would depend on the circumstances in which injury had occurred. The Court, in Brodribb, determined that the principal contractor owed a general common law duty of care to the injured subcontractor, but held that, in all the circumstances, it was not in breach of that duty. I do not consider that the decision in Brodribb assists Mr Bainbridge in this matter.
[38] (1986) 160 CLR 16
85 It was further submitted on behalf of Mr Bainbridge that the Modbury principle was restricted to occupiers. The defendant in Modbury was an occupier of the shopping centre and car park where the plaintiff had been assaulted.
86 It was submitted here that the first defendants were not occupiers of the centre, and that, I consider, is correct. However, I do not accept that the Modbury principle is applicable only to occupiers of premises.
87 Gleeson CJ (with whom Gaudron J agreed) and Callinan J referred, with approval, to Smith v Leurs,[39] where Dixon J said:
“It is, however, exceptional to find in the law a duty to control another’s actions to prevent harm to strangers. The general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third. There are, however, special relations which are the source of a duty of this nature. It appears now to be recognised that it is incumbent upon a parent who maintains control over a young child to take reasonable care so to exercise that control as to avoid conduct on his part exposing the person or property of others to unreasonable danger.”
[39] (1945) 70 CLR 256 at 262
88 Smith v Leurs did not involve an occupier. In that matter, the parents of a child were found liable for breach of duty of care in allowing the child to leave his home and cause damage to another by means of a slingshot.
89 Gleeson CJ, in Modbury, referred to the special relationships constituting exceptions to the general principle, including those of employer and employee and school and pupil. There was no suggestion that the general principle would only have applied to the employer or the school where the incident causing injury occurred at the employer’s premises or at the school premises.
90 But for my decision that the first defendants were, at the relevant time, employers of Mr Bainbridge, I would not have considered that they owed any duty of care to take reasonable steps to protect him from injury caused by the criminal conduct of the youth in question or any other third party.
Causation
91 Causation is an issue in two senses in this matter:
(a) Firstly, as to whether the breach of duty on the part of the first defendants was a cause of any injuries suffered by Mr Bainbridge. In reality, this amounts to an issue as to whether the breach of duty by the first defendants was a cause of the assault; (b) Secondly, as to what injuries were caused by the assault. I shall deal with this latter aspect in my consideration of damages later in these reasons. 92 The Full Court of the Federal Court of Australia recently considered causation issues in Merck Sharp & Dohme (Australia) Pty Ltd v Peterson.[40] Keane CJ, Bennett and Gordon JJ said:
“The ‘but for’ test serves, in this field of discourse, as a negative criterion. That is to say, unless the defendant’s actionable conduct is shown to be a necessary condition of the plaintiff’s injury, the plaintiff’s claim will not succeed. Thus, in Amaca v Ellis[41] at [11] – [12], it was accepted that a plaintiff must show on the balance of probabilities that the actionable conduct of the defendant was a necessary of the occurrence of the harm in respect of which the plaintiff claims damages. It is true, as Counsel for Mr Peterson pointed out, that this rule was not the subject of argument in Amaca v Ellis; but it is also true that this rule represents the law in Australia binding on all courts below the High Court.”[42]
[40] [2011] FCAFC 128
[41] [2010] HCA 5
[42] (supra) at paragraph [99]
93 In Peterson, the Court quoted, with approval, parts of the judgment of Allsop P in Evans v Queanbeyan City Council[43] and, in particular:
“…Subject to the views of the High Court in respect of any development of the common law, as a general proposition, the increasing of risk of harm by a tortious act is, alone, insufficient for a conclusion of causation by material contribution to that harm or for a conclusion of responsibility in law for that harm.”[44]
[43] [2011] NSWCA 230.
[44] (supra) at paragraph [102]
94 Whether or not a causal connection exists between a breach of duty and harm suffered by a person to whom that duty is owed is a question of fact to be decided on the balance of probabilities. The existence or otherwise of the causal connection is to be determined in accordance with commonsense notions of causation.[45]
[45] Bennett v Minister of Community Welfare (1992) 176 CLR 408; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
95 The breach of duty need not be the sole cause. Plainly here, the primary cause of Mr Bainbridge’s injury was that he was kicked by a youth who is not a party to this proceeding. Mr Bainbridge argues that, had he been provided with a security guard on the occasion of his return to the office on 22 December 2007, as he had been on nearly every other occasion, the assault by the youth would not, on the balance of probabilities, have occurred.
96 It was submitted that the evidence showed that on nearly every other such journey, a security guard would escort Mr Bainbridge in close physical proximity to and from the throne area. It appeared that the passage where the assault occurred was somewhat isolated, in that it was away from the shops and busier areas of the Centre, notwithstanding that it was the access to the men’s and women’s toilets. It was submitted that the physical presence of a security guard would have acted as a deterrent to the youth, sufficient to prevent the assault from occurring. It was submitted that the presence of a security guard would have deterred such an offender, because the chances of identification and/or apprehension following such an assault would have been significant.
97 The defendants submitted that Mr Bainbridge had not established that the assault would not have occurred even if a security guard had been escorting him at the relevant time. Reliance was placed on a number of parts of the Judgments in Modbury. At paragraph 107, Hayne J said:
“As Gleeson CJ points out, the causal connection between a lack of light in the car park and the attack on the first respondent is by no means self-evident. The conduct of criminal assailants is not necessarily dictated by reason or prudential considerations. There is no basis for deciding whether the absence of better lighting affected the conduct of those who assaulted the first respondent in any way which might have enabled him to avoid their attack. Moreover, it is not enough to say, as the respondents contended, that better lighting would have enabled the first respondent to keep a better look out.”
98 Callinan J said, at paragraph 150:
“But more significantly, it involves the further assumption that all or most criminal conduct is actuated by, and proceeds according to considerations of common sense. Assumptions about dictates of common sense can often be dangerous. It by no means strikes me as a matter of common sense that the absence of the relevant lighting in this case made the attack here inevitable, or caused, or indeed even invited it.”
And at paragraph 151:
“In the circumstances, I do not consider that the absence of lighting caused, or in any material or significant sense, increased the risk of injury to the first respondent”.
99 Gleeson CJ, said, at paragraph 29:
“The unpredictability of criminal behaviour is one of the reasons why, as a general rule, and in the absence of some special relationship, the law does not impose a duty to prevent harm to another from the criminal conduct of a third party, even if the risk of such harm is foreseeable.”
100 Counsel for the defendants submitted that the youth might or might not have applied reason to his decision as to whether or not to assault Mr Bainbridge. The assault only lasted a matter of seconds from the time the youth appeared from the men’s toilet doorway. I accept that it does not appear to have been a planned attack, but more a spur of the moment decision.
101 It was submitted that it was unknown as to whether the youth would have even seen a guard had one been present.
102 Further, it was submitted that the security guards that had previously escorted Mr Bainbridge to and from the throne area were of mixed age. It was submitted that they might have been elderly or obese. The youth might not have had respect for such a guard. Likewise, if the guard had been female, the youth might not have thought a female likely to be able to prevent him assaulting Santa or capable of pursuing or apprehending him.
103 Reference was made to the decision of the High Court in Adeels Palace Pty Ltd v Moubarak & Anor.[46] There, the Court found that the evidence at trial did not show that the presence of security personnel would have deterred the re- entry into the premises of the gunman. It stated that such a conclusion could have been reached only if it was assumed that the gunman would have acted rationally. The gunman’s conduct at the restaurant on the night in question was said to be dictated neither by reason nor by prudential considerations. The Court pointed out that the gunman had shot a man who had done nothing to him and who, defenceless, had begged for mercy. The Court also found that the evidence did not show that security personnel could or would have prevented re-entry by the gunman, who it described as a determined person, armed with a gun and irrationally bent on revenge.
[46] [2009] HCA 48
104 The defendants relied on the statement by the Court at paragraphs [50] and
[51] of the judgment: “Recognising that changing any of the circumstances in which the shootings occurred might have made a difference does not prove factual causation. Providing security at the entrance of the restaurant might have delayed the gunman’s entry; it might have meant that, if Mr Bou Najem was a random victim, as seemed to be the case, someone else might have been shot and not him. But neither plaintiff proved factual causation by pointing to possibilities that might have eventuated if circumstances had been different.
Nor was ‘but for’ causation established in these cases by observing that
the relevant duty was to take reasonable care to prevent injury to patrons from the violent, quarrelsome or disorderly conduct of other persons. That is, the question of factual causation was not answered in these cases by pointing out that the relevant duty of care was to take reasonable steps to prevent violent assault, that each plaintiff was the victim of a violent assault, and that the damage sustained by the plaintiffs was ‘the very kind of thing’ which the relevant duty obliged Adeels Palace to take reasonable steps to prevent.”
105 At paragraph 57, the Court said:
“Rather, it would be contrary to established principles to hold Adeels Palace responsible in negligence if not providing security was not a necessary condition of the occurrence of the harm but providing security might have deterred or prevented its occurrence, or might have resulted in harm being suffered by someone other than, or in addition to, the plaintiffs
…
Accordingly, the submission that the plaintiffs’ injuries in these cases were caused by the failure of Adeels Palace to take steps that might have made their occurrence less likely, should be rejected.”
106 Counsel for the defendants submitted here that the negligence of the first defendants was not a necessary pre-condition to the occurrence of the injury. The submission was that all that had been established was that the presence of a security guard might have reduced the likelihood of the assault.
107 In order to succeed on the issue of causation, Mr Bainbridge must establish, on the balance of probabilities, that the negligence of the first defendants was a cause of injury suffered by him in the assault. He does not have to establish that the presence of a guard would certainly have prevented such assault. I need merely to be satisfied that, if a guard had been present at the time, such an assault would probably not have occurred.
108 I am satisfied that Mr Bainbridge was unlikely to have been assaulted had he been escorted at the time by a security guard.
109 I take into account the age of the youth, estimated at between thirteen and sixteen years. He would have been younger than a security guard escorting Mr Bainbridge. Had a security guard been walking in close proximity to Mr Bainbridge (as had almost always been the case previously), the youth would almost certainly have seen him. Whether or not a security guard would have been in a position to physically prevent the kick is uncertain. He may well have blocked the kick. However, I consider it likely that even an irrational youth would have been unlikely to have assaulted Mr Bainbridge in circumstances where there was a witness close by who was likely to have been able to recognise him and might have been able to restrain him or detain him.
110 Insofar as the first defendants submit that the guard provided might have been an elderly or frail person, or a woman of little strength, I understand by that submission that such person may have been physically incapable of any real protection and would not have been viewed by the youth as any threat at all. I do not accept that submission. The duty I have found owed by the first defendants was one to take reasonable steps to prevent Mr Bainbridge from suffering injury as a consequence of criminal acts such as an assault. Such reasonable steps would not, in my view, have involved the provision of a guard who was elderly, frail or otherwise incapable of providing physical assistance to him in the event that he was the subject of criminal assault. I do not consider that it is an answer, in the context of the causation issue, to say that the guard provided might have been inadequate for those purposes.
111 Accordingly, I am satisfied, on the balance of probabilities, that the previously identified breach of duty of care by the first defendants was a cause of the injuries suffered by Mr Bainbridge as a consequence of the assault.
Contributory Negligence
112 The first defendants allege that if Mr Bainbridge was injured as a result of their negligence, his own negligence was also a cause of his injuries. Particulars of contributory negligence were set out in the first defendants’ Amended Defence as follows:
(a) Failing to seek the assistance or presence of a security guard; (b)
Leaving his station when he knew or ought to have known it was unsafe to do so;
(c) Walking to the office without a security guard; (d)
Walking to the office without requesting the presence of a security guard;
(e) Failing to wait for a security guard prior to leaving for the office. 113 Counsel for the first defendants effectively submitted that Mr Bainbridge’s negligence was in leaving the throne area on his own rather than waiting for the security guard. Counsel’s submission was that if the first defendants ought to have foreseen the need for a security guard, then Mr Bainbridge ought to have foreseen it also.
114 That submission, incorrectly in my view, equates the duty of care owed by an employer with the duty owed by the employee to take reasonable care for his own safety.
115 Mr Bainbridge had been told that a security guard would be provided to escort him to and from the throne. He knew that a guard had done so on virtually every occasion that he made that journey during the 2006 and 2007 Christmas periods. However, on the occasion of 22 December 2007, the guard was not present. He was nowhere to be seen. His whereabouts were unknown. For all Mr Bainbridge knew, the guard might have been involved elsewhere in the Centre in detaining a shoplifter, in attending to a problem in the car park, or in a host of other duties which may have occupied him for an indefinite time. Waiting for the guard to attend may have meant waiting a few minutes or it may have involved waiting for a considerable period. Mr Bainbridge was not to know how long.
116 There was no means of communication in the vicinity of the throne area. Had there been communication facilities available, Mr Bainbridge would have been able to ring the office and make enquiries as to where the guard was and how long he would be. He had been left to his own devices. He made a decision, having waited for a few minutes, to make his own way back to the office and did so. He was unaware of any particular danger that was likely to confront him. I do not consider that he could be criticised for doing so.
117 Counsel for the first defendants referred to the evidence of Mr Bainbridge that the guard appeared in the corridor where the assault had occurred about 15 to 20 seconds afterwards. He submitted that this showed that the guard was not far away. However, the place of the assault was 100 to 150 metres from the throne. There was no evidence as to the direction from which the guard had approached the scene and no evidence as to where the guard was when Mr Bainbridge departed from the throne area on his own.
118 The onus of proving contributory negligence lies on the first defendants. I am not satisfied that they have established that Mr Bainbridge’s decision to walk back to the office on his own constituted negligence on his part.
Damages
119 Mr Bainbridge claims damages in respect of pain and suffering as a consequence of injury to both of his knees.
120 He had previously undergone total knee replacement surgery to his right and left knees in 2001 and 2005 respectively. On any view, total knee replacement surgery is a serious procedure. It involves the severing of the femur and the tibia, and a complete replacement of the knee joint with a prosthesis – an artificial joint. The upper and lower ends of the prosthesis are driven into the severed femur and tibia respectively.
121 The medical evidence was that the likely life of such prosthesis was, on average, somewhere between ten and fifteen years, but that for a variety of reasons, that life could be substantially less or more. It was not uncommon for revisions to be required after five years or for such prostheses to last for longer than fifteen years.
122 The medical evidence was that a typical prognosis for a patient following a total knee replacement, assuming the surgery was technically successful, was for intermittent pain, an inability to kneel on the knee, and for restrictions in the ability to stand for extended periods and engage in athletic pursuits.
123 On any view, Mr Bainbridge had suffered serious injuries to both of his knees well before December 2007.
124 Significant issues at trial concerned the extent to which Mr Bainbridge was suffering from symptoms of pain and restriction in his knees in the years leading up to December 2007 and as to whether revisions of the knee prostheses were inevitable, regardless of the assault.
125 In respect of his right knee, his evidence was initially that he had obtained a very good recovery of function following the 2001 right total knee replacement.
126 However, on 19 March 2004, Mr Bainbridge had made and signed a declaration concerning his inability to perform community work which he had been ordered by a court to undertake in relation to convictions referred to previously. He declared that he had a pre-existing illness or injury that would prohibit him from undertaking his assigned community work responsibilities – namely, “lower back injury, weakness in both knees, recovering from brain surgery”.[47]
[47] Exhibit D1-1
127 On 23 March 2004, his then general practitioner, Dr Rankin, provided him with a letter indicating that, at that time, he was suffering from hypertension; that in 1994 he had suffered intracranial bleeding (a stroke); that he suffered from Depression and Panic Disorder; and that in January 2001, he had had a right- knee replacement. On the basis of those conditions, he was, according to Dr Rankin, unable to engage in any lifting or physical activity.[48]
[48] Exhibit D1-2
128 The evidence of Dr Lisner was that Mr Bainbridge had been a patient at the Prime Healthcare Medical Centre at Werribee Plaza, Werribee, since August 2005, some two-and-a-half years before the assault. In early 2006, he attended at the surgery with bilateral swollen tender knees and bilateral ankle oedema. In July 2006, he was diagnosed with what was described as “pitting oedema” below both knees. This condition was described as excess fluid. The expression “pitting” meant that, if you put your finger on it, it would leave a mark or a pit. Fluid was gravitating to his legs. Dr Lisner thought that a number of conditions could cause pitting oedema. These included cardiac, kidney, or liver conditions. Various medications could cause it as a side-effect. He was not able to say what was causing Mr Bainbridge’s pitting oedema at that time. Mr Miller, the treating orthopaedic surgeon, was of the view that the pitting oedema was unconnected with earlier knee replacement.
129 In August 2006, Mr Bainbridge complained to Dr Lisner of a few weeks of a sore left knee, and had made reference to the knee replacement surgery the previous year. The knee was tender at the front over the tibia. X-rays, taken on 30 August 2006, were reported by a radiologist as showing that the knee replacement was in situ, meaning that it was anatomically in a good position and there was no evidence of any complications.[49] Mr Miller accepted the radiology report as showing that the prosthesis was in good condition at that time. Mr Dooley considered that the type of x-ray performed would not confirm the state of the prosthesis. He considered that a full thigh to ankle x-ray would be required. That view was not put to Mr Miller in cross- examination for his comment.
[49] T 553; Exhibit D1-15
130 In mid-2006, and regularly thereafter, Mr Bainbridge was prescribed medication known as Murelax to assist him in sleeping. Dr Lisner could not recall the reason for this and his clinical notes did not identify the precise problem which was causing difficulty in sleeping.
131 In November 2006, Mr Bainbridge complained that both of his knees were sore. Dr Lisner’s note indicated that they were extremely sore. He interpreted his notes as indicating that Mr Bainbridge was in extreme pain.[50]
[50] T 554
132 Later, in November 2006, Mr Bainbridge presented with a sore left knee and calf for a few weeks, and swelling of the left lower leg. Again, the description used in Dr Lisner’s notes was “pitting oedema”. Dr Lisner was unsure as to any relationship between the soreness of the left knee and the swelling in the leg. An ultrasound was arranged to exclude deep vein thrombosis.
133 In March 2007, the plaintiff was again prescribed Murelax to assist him sleeping, and Uremide, a fluid reduction medication. He was also prescribed the anti-depressant, Effexor. His blood pressure was rather high – 170 on 100 – and it may have been the cause of headaches. The doctor was unable to identify the basis of a continuing problem with depression at that time.
134 I note that Mr Bainbridge had been able to work on a part-time basis through much of 2006 and 2007. His work consisted of his sales/managerial role at Wyndham Mobility and, later, in his part-time promotions work with the first defendants.
135 On 23 October 2007, he again complained to Dr Lisner of oedema of his legs, the doctor noting that there had been a lot of swelling in the previous few days. Again, pitting oedema to both of his knees was identified.
136 On 28 November 2007, significant oedema was again identified by Dr Lisner. This was approximately one week before he commenced the 2007 Christmas season at the Centre. On 9 December 2007, he was seen in relation to epilepsy problems. There was no complaint concerning his knees.
137 Dr Lisner was of the view that Mr Bainbridge’s complaints of soreness in his knees at around that time could have related to the pitting oedema condition referred to. He thought the pitting oedema could be due to blood flow problems and be completely unrelated to the prostheses.[51]
[51] T 565
138 Mr Miller was of the view that the bilateral pitting oedema was unlikely to be related to either the left or right-knee replacement surgery. Dr Lisner agreed.
139 On 20 December 2007 (two days prior to the date of the assault), Dr Lisner’s notes indicated that the oedema was gone. There was no mention of any knee problem, left or right.
140 Mr Bainbridge conceded that in an earlier court proceeding in June 2010, he had agreed that he had, prior to December 2007, only worked part-time for many years. He agreed that the reason why he had only worked part-time was because of injuries to his knees and to his condition following his stroke.[52]
[52] T 171
141 It was put to Mr Bainbridge that it was because of his previous injuries that, leading up to 2007, that he had been only capable of part-time work. He did not concede that. He said that part-time work was the only work that he was able to find at that time.
142 The first defendants called evidence from Ms Jacotine, Ms De Silva and Ms Tuhuro. All three gave evidence that:
(a)
they had worked at the Centre on 15 December 2007 helping out at a breakfast for children involving an appearance by Santa Claus;
(b) Mr Bainbridge had noticeably limped that morning; (c)
Mr Bainbridge had joined the three women for a coffee later that day at a café at the Centre, had discussed with them his left knee and his previous surgery to it, and had shown them a surgical scar on his left knee.
143 Mr Bainbridge accepted those parts of their evidence, and I accept it.
144 In addition, Ms Jacotine recalled asking Mr Bainbridge why, if his knee was worrying him, he did not have further surgery on it. She said he told them he could not afford it. Ms De Silva also recalled a similar conversation. Ms Tuhuro made no mention of any discussion about further surgery. Mr Bainbridge strongly denied this part of the conversation occurred.
145 I accept Mr Bainbridge’s evidence that he did not discuss the need for or possibility of future surgery with those witnesses. Firstly, I consider such a question by an unqualified person concerning a surgical procedure about which she knew nothing (as opposed to a suggestion that he should see a doctor or physiotherapist about his knee) to be inherently unlikely. Secondly, I accept Mr Bainbridge’s evidence that he had had the prior left-knee surgery as a public patient and at no cost to himself. If a revision was being considered at that time, it is likely that he would, again, have been a public patient. Thirdly, there was no evidence that, prior to 15 December 2007, Mr Bainbridge had discussed a possible revision with any medical practitioner, and it is most unlikely that he would have had a view as to a need for revision even if his knee was giving him problems.
146 I accept that Mr Bainbridge had been seen to be limping that morning, but I find this to be consistent with the pitting oedema condition for which he had seen Dr Lisner during December and the preceding months of 2007.
147 In summary, I accept that the plaintiff was not symptom-free in the years leading to December 2007 in respect of either his right or left knee. However, I accept the evidence of Mr Miller and Dr Lisner that the pitting oedema was unlikely to be related to either of his previous knee surgical procedures. Although that pitting oedema had caused him to visit his general practitioner on a number of occasions during 2007, I note that on 20 December of that year, the condition appeared to have disappeared. There was no evidence that it had ever re-appeared or was likely to be an ongoing concern for him.
148 I accept the evidence of Mr Miller that, following a total knee replacement surgical procedure, Mr Bainbridge (and most other such patients) would suffer ongoing intermittent pain in the knee that had been operated upon. I accept that from time to time he displayed a limp and that he was restricted in the time for which he could stand or sit. Overall, I accept that generally, up to the date of the assault, his symptoms in both left and right knees were relatively minor and such that no revision surgery to either had been considered.
149 Following the assault, Mr Bainbridge continued to work on 23 and 24 December 2007, as scheduled. His evidence initially was that he had gone to see a doctor on the day after the assault - that is, on 23 December 2007. He thought that he had seen Dr Lisner. Dr Lisner’s notes disclose no such consultation, and he was unable to remember one on that date. It appears that Mr Bainbridge did attend Dr Lisner’s surgery on 24 December 2007, although the doctor’s notes indicate he attended in relation to a lost prescription. There is no mention in the clinical notes of a report of an accident two days earlier or of any particular problem with his left knee.
150 On 26 December 2007, Mr Bainbridge’s partner, Mary-Anne Lee, pointed out to him that he had a large bruise at the back of his left knee. Mr Bainbridge recalled that she had made that observation at Anglesea on that date. She recalled that she had observed it at the Werribee Plaza Shopping Centre on that date, immediately prior to them travelling to Anglesea. I accept Ms Lee’s evidence. I do not consider that the variation in evidence between them is of significance. I accept that he had a significant bruise on the back of his left knee by 26 December 2007. Both Mr Miller and Mr Dooley considered that the development of a bruise at the back of the knee four days later was consistent with the mechanics of the trauma as it had been described by Mr Bainbridge.
151 Dr Lisner’s notes indicate that he saw Mr Bainbridge at the surgery on 22 January 2008. His notes refer to a prescription of Murelax (for anti-anxiety and sleeping); Uremide (a fluid tablet); Zimstat (for cholesterol); Slow-K (a potassium supplement); Atacand (a blood-pressure medication); Effexor (an anti-depressant); Prinivil (another blood-pressure medication); and Natrilix (another blood-pressure medication).[53] There was no mention in the notes of the kicking incident, although Dr Lisner’s evidence was that he obtained a history of the incident on that date.[54]
[53] T 561-2
[54] T 430
152 It appears that Mr Bainbridge did not attend at Dr Lisner’s surgery after 22 January 2008.
153 Shortly before that time, Mr Bainbridge moved from Hoppers Crossing (near Werribee) to Bacchus Marsh. Soon after, he commenced seeing Dr Sadhai and Dr Sooknandan of the Bacchus Marsh Medical Centre. He had first attended at the Bacchus Marsh Medical Centre on 22 January 2008 and had seen Dr Sadhai on that occasion. Murelax (for sleeping) was prescribed. There had been a discussion about Mr Bainbridge’s left knee, and arrangements were made for an x-ray of it. On that date, Dr Sadhai took a history of a left-knee injury on 22 December 2007 whilst working at the Centre as Santa Claus when he was kicked heavily by an adolescent.[55]
[55] T 430
154 The knee continued to be painful and, in due course, he was referred to Mr Miller, who arranged further x-rays and a bone scan, which he considered showed loosening of the prosthesis. He considered the condition of the knee was consistent with trauma to the knee.
155 Mr Miller recommended a revision of the prosthesis; that is, a complete replacement of it. Such a revision, performed by him in May 2008, involved the further shortening of the femur and tibia and a re-insertion of a larger prosthetic joint. I am satisfied that such a revision would not have been performed unless Mr Bainbridge had been in severe, debilitating pain. He was in hospital for about a fortnight. Following that procedure, I am satisfied Mr Bainbridge was severely restricted in his ability to move around and was treated with powerful analgesic medication.
156 That left-knee revision appears to have, technically, been a success. Mr Bainbridge underwent further rehabilitation and physiotherapy. He appears to have recovered a relatively good range of movement. As expected, he has continued to experience some pain and discomfort from time to time. He has reached a point where he is taking over-the-counter analgesic and anti- inflammatory medication every month or two. At present, his complaints of left-knee problems appear to be at a similar level to those experienced by him prior to his being kicked.
157 Mr Miller considered that a revision knee replacement was never likely to produce the same result as the original knee replacement. He explained this by saying that an initial knee replacement would be likely to result in a recovery of 80 per cent of normal function, but after a revision knee replacement, a patient was likely only to recover about 80 per cent of that reduced level. He thought that each successive revision, no matter how technically successful, would result in a lesser function.[56]
[56] T 278-279
158 In terms of longevity, Mr Miller considered a revision prosthesis would not be expected to last as long as the original – about 80 per cent.[57] He considered that each time a joint was operated on, more scarring was created and the risk of infection was doubled with each revision.
[57] T 279-280
159 Following the May 2008 revision, Mr Bainbridge developed a redness immediately beneath the prosthesis, which Mr Miller considered might have been due to infection, but might also have been merely due to the prosthesis being hammered down with such force into the tibia that it had caused fat to ooze out of the bone, causing the problem.
160 Mr Miller considered that a major disease of this kind would impose significant restrictions on Mr Bainbridge’s mobility in general, his capacity for domestic and gardening activities, and physical, recreational and leisure activities.[58] However, I consider that he was there expressing a view relevant to any person who had undergone a total knee replacement. I do not consider that he was saying that such restrictions only resulted from the revision surgery of 2008. He did not express a view as to the overall additional restrictions (if any) caused by the revision surgery over and above those that would flow from the original 2005 procedure.
[58] T 289
161 Following the revision surgery of May 2008, Mr Bainbridge was reviewed on a number of occasions by Mr Miller. Flare-ups of symptoms were noted where the knee was worse, but later improving. This was described by Mr Miller as a typical picture.
162 Both Mr Miller and Mr Michael Dooley were of the view that the loosening of the left-knee prosthesis was present prior to the traumatic incident of 22 December 2007. Both agreed that a loosening of a prosthesis can be present without the condition being symptomatic.[59]
[59] T 307
163 Mr Miller considered that the traumatic event had caused a further injury, in other words, more loosening, or that the loosening had become manifest.[60] Mr Miller was of the view that if the plaintiff had been limping to an extent prior to the traumatic event, he did not think that this would necessarily indicate the presence or otherwise of loosening at that time.[61]
[60] T 308
[61] T 308
164 Mr Dooley agreed that the x-rays taken in January 2008 confirmed probable loosening of the tibial component of the left-knee replacement. However, he thought those radiological changes were such that the loosening process was present prior to December of 2007. He said:
“It is well accepted that changes of loosening of a prosthesis can be present on an x-ray without the condition being symptomatic ... It would be accepted that if changes of loosening are present, then gradually over a period of time they will evolve naturally and may result in terms of pain, increased bone resorption etc. On balance, one would have to accept that the blow to the knee may have rendered the underlying loosening process symptomatic. Because of ongoing pain, a decision was made to proceed to revision knee replacement surgery. Overall, Mr Bainbridge has obtained a very good result from this surgery.”[62]
[62] Exhibit D1-15, page 3
165 In Mr Dooley’s first report of 10 September 2009,[63] he considered that the majority of patients, following successful revision knee replacement, will still note intermittent knee pain. The majority of those patients would have difficulty kneeling and squatting. He considered that the loosening process would have evolved naturally, and it was probable that ultimately Mr Bainbridge would have required further surgery on the knee. It was, he said, impossible to give a timeframe in this regard. He thought that it was more probable than not that the current left-knee replacement would last Mr Bainbridge the term of his natural days. He did not opine as to what he considered Mr Bainbridge’s life expectancy to be.
[63] Exhibit D1-15
166 In his second report dated 15 March 2010, Mr Dooley stated that the work- related episode (the assault) on balance had rendered asymptomatic loosening changes in the left-knee prosthesis symptomatic. He thought there had been a significant loss of knee function, and that the loss would persist for the foreseeable future. He thought it was possible that Mr Bainbridge would require a further revision during the term of his natural life.
167 In his final report of 24 May 2011, Mr Dooley again confirmed that the significant loss of left-knee function was a result of both natural loosening and the subsequent aggravation. The revision knee surgery had improved his situation, but overall there would be persisting symptoms, and he would continue to note difficulty with function. He considered that he would be unfit for heavy work or work that involved a lot of bending, kneeling or squatting.
168 Mr Dooley gave evidence in Court and was cross-examined. In evidence, he said that at the time that he wrote the reports referred to above he did not have any history of problems with the left-knee prior to the kicking incident. It was pointed out to him that there was evidence before the Court that before the incident, the knee was causing him to limp slightly, that he could not stand on the left leg for any length of time, it was worse in cold weather, and his walking was restricted to approximately 3 to 400 metres. He thought that those matters may represent symptoms associated with the loosening of the prosthesis. That is, the loosening may not have been entirely asymptomatic at that time. He considered those described symptoms as being more than normal post total knee replacement symptoms. He considered that, given they were about three years post the original knee replacement, this would be consistent with symptoms relating to early but definite loosening of the prosthesis.
169 Mr Dooley therefore considered that Mr Bainbridge’s left-knee replacement was showing early signs of loosening before the assault (within three years), and that this was indicative of mechanical malfunction, in that it was not initially well aligned. That is, it reflected a technical error at the time of the original 2005 surgery. A well-fixed, well-aligned prosthesis would be very unusual to be failing at five years.[64] Mr Dooley considered that it was difficult to assess what difference it made that Mr Bainbridge was considerably overweight.
[64] T 596
170 Mr Dooley thought that the 2008 revision was well aligned and well fixed. That prosthesis, he thought, had a life expectancy of at least ten years.[65] There would be potential for a further knee replacement after that time, but he would not necessarily describe that as being certain or probable. He thought there was potential for it.
[65] T 605
171 Mr Dooley did not consider that the assault had caused loosening of the prosthesis. Rather, he considered that it had rendered the loosened prosthesis symptomatic.[66] That is, the kick had rendered the underlying process symptomatic.[67]
[66] T 605
[67] T 607
172 Mr Bainbridge was able to return to part-time employment in the latter part of 2008, working for a computer-sale company called Computer Connect. The position involved him working for four hours a day, five days per week. However, generally, he chose to remain at work for eight hours a day, even though he was not paid for the second four hours. He elected to do so because it enabled him to learn more about the business. He had continued in that position until about August 2011, just prior to him entering hospital to have a further revision total knee replacement to the right knee. To date, approximately four months after, he is yet to return to work. At present, he is clearly considerably debilitated as a consequence of the right-knee surgery. It is anticipated, however, that he will improve further in the next months.
173 Mr Bainbridge was hopeful he would return to the workforce either in his previous position or one similar to it. It was not suggested in evidence that Mr Bainbridge’s knee injuries would prevent him from returning to any work. Clearly, such work would need to be of a relatively sedentary nature, and would probably require him to be able to be seated or standing as he chose.
174 In respect of the left knee, I make the following findings, on the balance of probabilities:
(a)
Following the initial total knee replacement procedure in May 2005, and up to December 2007, Mr Bainbridge had suffered intermittent symptoms of pain in his knee, as would be expected following such a procedure. It is likely that he limped from time to time, and that he may well have complained to others from time to time about it.
(b)
Prior to the assault, his symptoms were not such that an early revision of that surgery would have been considered.
(c)
I accept that prior to the assault, it is likely that there had been some loosening of the tibial end of the prosthesis, but that such loosening was asymptomatic.
(d)
That the assault resulted in the loosening of the prosthesis becoming symptomatic to the extent that revision surgery was conducted within six months. But for the assault, the left knee may not have become symptomatic to any significant extent for many years.
(e)
That the symptoms leading to the 2008 revision surgery were significant. I do not consider that Mr Bainbridge, or any surgeon treating him, would have considered such revision surgery unless the symptoms of pain were severe.
(f)
Regardless of the assault, Mr Bainbridge was likely to have required revision of the left-knee prosthesis ten to fifteen years after 2005 – that is, in the period 2015 to 2020, at which time he would have been between sixty-six and seventy-one years old. However, in the light of the evidence of both Mr Dooley and Mr Miller that there was already loosening of the tibial end of the prosthesis within approximately two- and-a-half years of the 2005 surgery, I consider that, but for that assault, it is likely that such revision surgery would have been required at the bottom end of that range – that is, within ten years, or by 2015, by which time Mr Bainbridge would have been aged about sixty-six. A revision of his left prosthesis at that time would have been likely to last a further ten to fifteen years and may well not have had to be repeated during his lifetime. The accelerated revision brought about by the assault means it is more likely that he will require a third revision in his lifetime but I am unable to conclude that this will necessarily occur.
175 Mr Bainbridge also claims damages in respect of injury to his right knee. He alleges that in the months leading up to the revision surgery to his left-knee and for a period afterwards, he limped badly, placing about 80 per cent of his weight on his right leg. The effect of this, he alleges, is that it brought about an earlier deterioration of the condition of his right prosthesis and a need for earlier revision/replacement of it than would otherwise have been the case.
176 In fact, his right knee has deteriorated to the point where a revision of that prosthesis was required. That procedure was performed in August 2011 by Associate Professor Bucknell. He is still in the relatively early stages of recovery from that procedure. He is happy with his progress to date.
177 Both Mr Miller and Mr Dooley were questioned at length concerning the likely contribution of the left-knee condition to the deterioration of the right knee. Mr Miller had, in two earlier reports, opined that there had been no contribution and that the right knee had merely worsened with time in the normal way. In a recent report dated 4 October 2011, he stated that the problems with the left knee had made a small contribution to the deterioration of the right. Mr Dooley was reluctant to acknowledge any such contribution but conceded that Mr Miller was entitled to his view.
178 Professor Buckland, the surgeon who performed the recent right-knee revision, was not called to give evidence. I infer that, had he been called, his evidence would not have advanced Mr Bainbridge’s case on this causation issue.[68]
[68] O’Donnell (supra)
179 I am not satisfied that Mr Bainbridge has established that his problems with his left knee have contributed to any material extent to the need for the right- knee revision or brought forward the need for it. In particular, I note that the right knee revision was performed ten years after the original right-knee replacement. That is, the need for revision was within the normal range of longevity for a healthy knee replacement, albeit at the lower end of the period.
180 Mr Bainbridge also gave evidence that in late 2008, at a time after the left- knee revision, he had developed symptoms of deep vein thrombosis in his right calf. This had led to a pulmonary embolism with potentially serious consequences. There was, in my view, no evidence linking the development of that DVT condition to the traumatic incident of 22 December 2007. I find that Mr Bainbridge has not established that causative link.
181 Counsel for the first defendants submitted that Mr Bainbridge’s past record of convictions demonstrated that he was a dishonest person, prepared to act in a dishonest manner in order to benefit financially. His criminal record is indeed unimpressive. However, I did not find that he deliberately exaggerated or concocted any part of his evidence. To the contrary, I consider that, in many respects, he understated the problems he encountered as a consequence of his injuries.
182 I accept that there were a number of inconsistencies with his evidence – in particular, his evidence concerning his initial attendance on Dr Lisner after 22 December 2007. However, I consider that these were the result of confusion as to dates and events, rather than any conscious attempt to concoct or exaggerate evidence or to mislead the Court.
183 In assessing damages, I must not compensate Mr Bainbridge as I would have had the defendants been responsible for the overall current state of his knees. Rather, I must make allowance for the significant injuries to both of his knees that pre-dated the assault. I consider that revision of the left knee was likely regardless of the incident and probably would have occurred in about 2015. The assault has made that likelihood a certainty and brought it forward by some seven years, thereby increasing the likelihood of him requiring a third revision later in his lifetime.
184 I consider that an award of damages in the sum of $80,000 adequately compensates Mr Bainbridge in respect of pain and suffering and loss of enjoyment of life.
Discharge of the Jury
185 The trial commenced before a jury of six persons. The plaintiff had in his Writ sought trial by jury. The first defendants had later, and in accordance with the Rules of the Court, served a notice requesting trial by jury. All jury fees had been paid.
186 The jury was empanelled on Thursday, 27 October 2011 and the trial commenced on that date. The following Tuesday was a public holiday and the Court did not sit. On the fourth sitting day, application was made by both Counsel for Mr Bainbridge and Counsel for the second defendant for discharge of the jury on the grounds that the matters to be considered were largely a combination of fact and law and that it was not practicable for the matters to be determined by a jury. Counsel for the first defendants opposed the application. After hearing argument, I acceded to the application and discharged the jury without verdict. I indicated then that I would later provide reasons for doing so.
187 Pursuant to Order 47.02 (3) of the County Court County Court Civil Procedure Rules 2008, the Court has a discretion to direct trial without a jury if, in its opinion, the proceeding should not, in all the circumstances, be tried before a jury.
188 In Altmann v Dunning,[69] it was held that the trial judge’s exercise of discretion to discharge the jury had not miscarried in circumstances where there were complexities and difficulties in the jury grappling with various permutations and combinations in assessing damages.
[69] (1995) 2 VR 1
189 Relevant principles were considered by Forrest J in Gunns Ltd v Marr & Ors (No. 5):[70]
[70] [2009] VSC 284
“(a)
Subject to compliance with the Rules of the Court, a party is entitled as of right to seek trial by jury provided the claim is founded in contract or in tort.
(b)
For that right to be enlivened, it is necessary for the party seeking trial by jury to comply with the procedural requirements of r 47.02 (1)(a) and (b); otherwise the trial will be heard before a judge sitting alone (absent an order of the Court to the contrary). Part 6 of the Juries Act 2000 (Vic) provides the statutory basis for the conduct of a trial by jury.
(c)
Where a party has given notice regularly that a trial by jury is required, that will be the prescribed mode of trial (subject to compliance with the Rules of the Court and the provisions of the Juries Act) unless the Court is persuaded to dispense with the jury.
(d)
Notwithstanding the right of a party to opt for a jury trial, there resides in the Court an overriding discretion to determine the mode of the trial, regardless of the wishes of the parties.
(e)
A court may at any stage of the proceeding direct a trial without jury if it is satisfied that it should do so.
(f)
As a general rule in this State (where civil juries are still the norm in tortious injury and defamation litigation), juries should be regarded as capable of dealing with issues of legal complexity as well as difficult issues of fact.
(g)
The onus of persuading a Court to dispense with a jury trial rests upon the party making that application. A Court will not lightly make such an order, given the right of the other party to seek trial by jury. There must be some special reason to do so.
(h)
The considerations which may influence a Court to dispense with a jury trial are unfettered; the discretion may be exercised where it is warranted by the dictates of justice.
(i)
Subject to the statement of general principles set out in (h), in determining whether to accede to an application to dispense with the jury, the following matters may be relevant:
– the complexity of the factual matters that the jury will need to consider
–
the complexity of the legal issues relating to liability, particularly where the claim involves consideration of multiple causes of action and multiple defendants
– the complexity of the jury’s task in relation to the assessment of
damages– the potential duration of the trial (although this, of itself, could
never be the determining factor)– the stage at which the proceeding or trial has reached
(j)
A decision as to the mode of trial (by a judge alone or by jury) cannot of itself amount to a miscarriage of justice as whichever form is chosen is a trial according to law.”
[Footnotes not included]
190 This was a trial which largely concerned the nature and scope of the duty of care owed by the defendants (if any) to Mr Bainbridge. Although the evidence was not complete at the time of the application, I considered that a likely issue would be whether respective duties of care owed by the defendants would be identical. I considered that there was a real prospect that the first defendants would owe a duty of care to Mr Bainbridge as his employer and that the second defendant might well owe a lesser, less stringent, duty of care as a non-employer/contractor. I consider that this would have been difficult for a jury to come to terms with.
191 Further, it was evident from the commencement of the trial that there was an issue of significance as to whether Mr Bainbridge was an employee of the first defendants as opposed to an independent contractor. In their Defence, the first defendants had denied that they were employers and alleged that they were, in effect, booking agents who, from time to time, found engagements for Mr Bainbridge. I considered that this was a substantial issue in the trial as it would be likely to dictate the nature and scope of the duty of care owed by the first defendants to Mr Bainbridge. I considered that this was a matter of law and that it would be inappropriate for a jury to determine that issue.
192 In addition, I considered that it was likely to be a significant issue as to whether either defendant owed a duty to take reasonable steps to protect Mr Bainbridge from injury caused by criminal conduct of third parties. I considered this also to be a matter solely of law and which would not be determined by the jury.
193 I accepted the submissions of Counsel for the second defendant that the abovementioned issues contained a relatively complex mix of questions of fact and law. In every jury trial, matters of law are to be determined by the trial judge and the jury is directed accordingly. Matters pertaining to fact would normally be the province of the jury. However, I considered that here, the elements of law and of fact were intertwined in a way that would have involved me having to make extensive findings of fact in order to come to conclusions concerning the law.
194 My concerns as to the extensive interplay between fact and law were later confirmed by the complexity and length of final addresses by Counsel for each of the parties.
195 In addition, both defendants had pleaded contributory negligence against Mr Bainbridge. Particulars of negligence were pleaded quite differently in each case. Had the jury considered that there had been some negligence on the part of Mr Bainbridge, they would have needed to have considered the different particulars of contributory negligence pleaded and made a comparison of both culpability (the degree of departure from the standard of care) and the relative importance of the acts of the parties in causing the damage.[71] I had raised the issue of different particulars of contributory negligence pleaded with the parties earlier in the trial. Neither defendant had seen fit to seek to amend its Particulars. Accordingly, it would have been open to the jury to compare the culpability and contribution of Mr Bainbridge’s negligence and that of the first defendants, and then conduct the same exercise in relation to the second defendant with the possibility being that different apportionments might have been made. I considered that this was likely to confuse the jury.
[71] Podrebersek v Australian Iron and Steel Pty Ltd [1985] 59 ALJR 492 at 494
196 In addition, at the commencement of the trial and up until the fourth day of it, neither the jury nor I had been told anything of contribution proceedings as between the two defendants. No documentation in relation to such proceedings has been included in any of the three court books filed by the parties with the Court. No mention had been made of contribution proceedings in the opening address to the jury by Counsel for the plaintiff. Neither defendant sought to raise the issue at the conclusion of that opening address. I thought it a matter of concern that the jury had heard a good deal of the evidence concerning the alleged liability of the defendants but without advice that one of their tasks might be to apportion liability as between them. I consider that it was important that the jury were made aware from the outset either by Counsel for one or other of the parties or by the trial judge as to the various issues that are alive in the trial and which they will be required, in due course, to determine.
197 Finally, at the time of the application, I had asked Counsel to indicate if there was any agreement as to the questions that would be put to the jury in the event that the application was refused. Counsel were unable to reach any such agreement.
198 In all the circumstances, I considered the matter an inappropriate one to continue before a jury and discharged it accordingly.
Conclusion
199 There will be judgment for the plaintiff against the first defendants in the sum of $80,000 (EIGHTY THOUSAND DOLLARS).
200 There will be judgment for the second defendant.
201 I shall hear the parties in relation to costs.
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