Bilal Kassem v ACN 075092232 Pty Limited (In Liquidation) (Formerly known as "Australian Event Protection Pty Limited")

[2009] NSWDC 262

Reported Decision: 9 DCLR (NSW) 340

District Court

CITATION:	Bilal Kassem v ACN 075092232 Pty Limited (In Liquidation) (Formerly known as "Australian Event Protection Pty Limited") [2009] NSWDC 262
HEARING DATE(S):	23-26 March 2009, 1-3 June 2009 and 1 July 2009
JUDGMENT DATE:	17 August 2009
JURISDICTION:	Civil
JUDGMENT OF:	Hungerford ADCJ
DECISION:	(1) Verdict and judgment for the first defendant against the plaintiff on the action. (2) Plaintiff to pay the first defendant's costs of the proceedings in an amount as agreed or assessed. (3) Direct that the exhibits remain with the file to be returned on application to the Registrar after 28 days. (4) Note the order made on 25 March 2009 that the proceedings against the second defendant be dismissed.
CATCHWORDS:	TORTS - Intentional torts - Assault and battery - Patron of nightclub punched by security guard outside premises - Very severe head and facial injuries - Licensed premises - Security guard employed by security company engaged by operator of nightclub - Vicarious liability of security company - Whether security guard's harmful conduct carried out in course of or incidental to employment - Whether security guard's acts so closely connected with authorised employment acts as to be mere improper modes of performing them - Whether security guards acts were independent and motivated by personal animosity and vindictiveness - Whether security guard acted in self-defence to enable security company to avoid liability - Whether injured patron engaged in conduct constituting serious criminal offences to prevent any award of damages in his favour - Whether security company could be vicariously criminally liable for conduct of security guard so as to save any award of damages - Extent of application of Civil Liability Act 2002 - Assessment of damages - Common law principles applied to assessment of damages - Dismissal of claim against security guard for failure to serve claim
LEGISLATION CITED:	Civil Liability Act 2002, ss 3B (1)(a), 3C, 50, 51(3), 52, 53 and 54, Pt 2, Pt 6 and Pt 7 Corporations Act 2001 (Cth), s 500 (2) Crimes Act 1900, ss 59(1), 61, 93C(1) and 93D(2) Registered Clubs Act 1976, ss 44A(1) and 67A Uniform Civil Procedure Rules 2005, rr 6.24(b) and 12.9(2)
CASES CITED:	Awada v Linknarf [2002] NSWSC 873 Deatons Pty Ltd v Flew (1949) 79 CLR 370 Kiperman v Highflame Pty Ltd [2007] NSWDC 165 New South Wales v Lepore (2003) 212 CLR 511 Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204 R v Donovan [1934] 2 KB 498 R v Taylor [1992] 2 All ER 299 Sprod v Public Relations Oriented Security Pty Ltd [2007] NSWCA 319 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 Zorom Enterprises Pty Ltd v Zabow [2007] NSWCA 106; (2007) 71 NSWLR 354
TEXTS CITED:	Salmond's Law of Torts (London: Sweet & Maxwell, 9th ed, 1936) at 495
PARTIES:	Bilal Kassem - Plaintiff ACN 075092232 Pty Limited (In Liquidation) (formerly known as "Australian Event Protection Pty Limited") - First Defendant Josefa Varo Matako - Second Defendant
FILE NUMBER(S):	1280 of 2006
COUNSEL:	Mr AJ Bartley SC and Mr F Tuscano for Plaintiff Mr PJ Deakin QC, Mr AR Davis and Mr G Dilworth for First Defendant No appearance for Second Defendant
SOLICITORS:	Consolidated Lawyers for Plaintiff Walker Hedges & Co for First Defendant

JUDGMENT

1 After forcibly being removed from a Sydney city nightclub by security staff for alleged unseemly behaviour in the early morning hours, a patron was released and sent on his way. However, he returned and attempted, in a somewhat dramatic and vigorous way, to re-enter the Club but was met with resistance from a number of security guards who endeavoured to restrain him. In the ensuing melee the patron received four punches to his head by one of the guards and lost consciousness; he suffered very severe head and facial injuries. On being transported to Royal Prince Alfred Hospital, emergency surgery to the head was performed that day with further surgery the following day to relieve intracranial pressure. He was discharged from hospital two weeks later. After four months, he was readmitted to hospital for four days and underwent elective surgery to correct certain defects in the skull but the results of the injury are still very much visible.

2 The resultant condition from the injuries was said to be an incapacity to engage in gainful employment due to cognitive impairment and only intermittent part-time work at an unskilled level was performed for a short period. Otherwise, the disabilities from the injury were said to be extensive as affecting memory, concentration, sleep patterns, mood, energy levels, self-esteem and confidence levels; there was a reduced capacity to participate in social, family and domestic activities; and regular occurrences of depression and anxiety symptoms were experienced.

The claim, the defence and the reply

3 The plaintiff, Bilal Kassem, sued Australian Event Protection Pty Limited as the first defendant who provided, managed and controlled at all relevant times the security services at a nightclub known as the “Cave Night Club” (the Club) located in licensed premises at Star City Casino in Pirrama Road, Pyrmont and operated by Rejoleer Pty Limited. The claim against the second defendant, Josefa Varo Mataka, was brought in his capacity as the security guard employed by the first defendant who punched the plaintiff in the subject incident which occurred at about 3am on Monday 24 March 2003. The plaintiff was a member of the Club and regularly attended on a weekly basis, usually on Saturday nights.

4 The action concerning the first defendant pleaded counts of negligence by breaching its duty of care to the plaintiff in failing to take reasonable security measures to protect him against assault while attending the Club, breach of the contract it had with Rejoleer as the operator of the Club to protect the plaintiff as a member entering or seeking to re-enter the premises and vicarious liability for the assault and battery on the plaintiff by the second defendant as its employee. The count against the second defendant was for the assault and battery in punching the plaintiff. By way of defence, the first defendant pleaded any injury, loss or damage was wholly or partly the result of the plaintiff’s own negligence in behaving aggressively, refusing directions and placing himself in a position of peril. However, as the matter was argued, the plaintiff’s claims in negligence and contract were abandoned and the defence of contributory negligence was not pursued. Thus, the sole count relied upon was the intentional assault.

5 The principal defence by the first defendant was that it was not vicariously liable for the acts and conduct of the second defendant in assaulting the plaintiff because such acts were outside the scope of his employment. It was put that they were independent acts constituting unauthorised and wrongful conduct which, by their viciousness, were acts of “retributive justice” for which the employer should not be held liable: see Deatons Pty Ltd v Flew (1949) 79 CLR 370 at 382; and also New South Wales v Lepore (2003) 212 CLR 511 at [54] and Zorom Enterprises Pty Ltd v Zabow [2007] NSWCA 106, (2007) 71 NSWLR 354 at [27].

6 Reliance was placed by the first defendant on the whole of the Civil Liability Act 2002, and in particular s 54(1), in denying liability. Even if s 3B(1) of the statute made inapplicable its provisions as to civil liability in respect of an intentional act done with intent to cause injury as was the position here, Pt 7 (which included s 54) of the statute was by subpara (ii) of s 3B(1)(a) continued in operation so as to preclude an award of damages to a person where the injury occurred at the time of, or following, conduct of that person which constituted a serious offence within the meaning of s 54(3) as being an offence punishable by imprisonment for six months or more. This was said to be fatal to the plaintiff’s claims as in the subject incident he engaged in conduct sufficient, on the balance of the probabilities, to satisfy the requirements of three such criminal offences under the Crimes Act 1900: first, common assault under s 61; second, assault occasioning actual bodily harm under s 59; and, third, affray under s 93C.

7 In his reply, the plaintiff pleaded reliance on s 54(2) of the Civil Liability Act to exclude the effect of the s 54(1) defence. In that respect, it was said the plaintiff’s injury for which damages were sought was caused by conduct of the first defendant through the second defendant as its employee constituting criminal offences of assault occasioning actual bodily harm and common assault respectively under ss 59 and 61 of the Crimes Act.

8 In its pleaded defence, the first defendant relied also on ss 52 and 53 of the Civil Liability Act to deny liability as the second defendant during the incident was acting in self-defence. The plaintiff in reply denied the first defendant was entitled to rely on s 52 as such a defence was available only to the second defendant.

9 The first defendant pleaded the s 50 defence under the Civil Liability Act that the plaintiff was under the influence of alcohol during the incident to the extent his capacity to exercise reasonable care and skill was impaired. The plaintiff joined issue on this but in submissions senior counsel for the first defendant did not attend to this defence. The plaintiff’s senior counsel simply put that s 50 was unavailable because it was excluded by s 3B(1)(a).

10 The second defendant did not file a defence or any notice of appearance.

11 Course of the proceedings

12 The second defendant did not appear at the hearing and no pleading was filed on his behalf. The statement of claim in this matter was filed on 24 March 2006 but I was informed that it was not served upon the second defendant because he could not be located and apparently had since returned to his homeland in Fiji. Accordingly, on 25 March 2009 I made an order, for reasons then given, pursuant to r 12.9(2) of the Uniform Civil Procedure Rules 2005, having in mind the provisions of r 6.2(4)(b) as to the invalidity of claims not served within the specified time of filing, that the proceedings against the second defendant be dismissed with no order as to costs. Thus, the case continued against the first defendant only.

13 The hearing in this action commenced on 23 March 2009. During the plaintiff’s examination-in-chief on 25 March 2009 counsel advised, it having just then come to their notice, that the first defendant in October 2008 had been placed in voluntary liquidation. Thereupon, on 26 March 2009 the matter was adjourned as required by s 500(2) of the Corporations Act 2001 (Cth) to enable the plaintiff to seek leave from the Supreme Court of New South Wales to proceed with the action or, in the alternative, for a declaration that as a voluntary winding-up leave was not necessary: see Awada v Linknarf [2002] NSWSC 873 per Barrett J. That relief was duly granted and the proceeding resumed in this Court on 1 June 2009. In all, the hearing occupied eight days and counsel provided, very helpfully if I may say so, detailed outlines of submissions which were supplemented orally.

14 In the circumstances, the name and style of the first defendant on all process was amended on 1 June 2009 to “ACN 075092232 Pty Limited (In Liquidation) (formerly known as ‘Australian Event Protection Pty Limited’)”.

15 In addition as senior counsel for the first defendant advised in indicating his instructions to so continue appearing, the first defendant’s insurer who had previously given instructions had also gone into liquidation. The case so proceeded.

Plaintiff’s background
16 The plaintiff was born in Lebanon on 15 July 1968 and migrated to Australia with his parents and siblings in June 1984. He was educated in Tripoli to the equivalent of Year 10 in high school and on arrival in Australia undertook a full-time six month course in English. He completed the Higher School Certificate at Arthur Phillip High School, Parramatta in 1986 followed by the award of an Associate Diploma in Chemical Technology from Granville TAFE in 1991. In the meantime, however, in 1985 he suffered head and neck injuries in a motor vehicle accident for which compensation of $17,000 was received.

17 Employment of a couple of months as a laboratory technician with the then Metropolitan Water Sewerage and Drainage Board occurred in early 1992 until the plaintiff commenced at the University of Technology Sydney a degree course in Applied Science. Due, as he said to the death of his mother, he deferred that course but never resumed it. Thereafter, employment was intermittent as involving work as a laboratory technician for about four months in 1992 at GM Laboratories Pty Limited at Leichhardt and then for about two years in 1994-1996 as the North Sydney Area Supervisor for Swan Services Pty Limited in the commercial and industrial cleaning industry. He was married in February 1994 and a daughter was born in November 1995 and a son in December 1997. At the end of 1996 he commenced to work part time for his older brother in the family video store in Granville assisting customers with CDs and tapes of movies and music in both English and Arabic. However, that employment was interrupted by another motor vehicle accident on 7 September 1999 when the plaintiff sustained injuries to his neck and shoulders for which a settlement of $40,000 was eventually obtained. He did not return to paid work at the video store and has since been unemployed; he went to the video store from time-to-time to help his brother as a family member but without remuneration. In the longer term, he said he intended to resume a job as a laboratory technician.

18 In 2000 the plaintiff and his wife separated and were divorced in December 2002.

19 It seems that the plaintiff during 1988 got to know about the Cave Night Club at Star City Casino and he began, on becoming a member of the Club, to regularly visit it each week on a Saturday night with friends; he said he gradually got to know the people who ran the Club.

20 The plaintiff said he became aware he attended the Club on the evening of 23 March 2003 at about 11pm or midnight but had no recollection at all of the incident which occurred early the following morning. His first memory was waking up in the intensive care ward of Royal Prince Alfred Hospital, where members of his family were present, but he did recall “a little bit” before the incident when he arrived at the Club with a friend and had a drink of scotch at the bar.

21 Prior to the subject incident in March 2003 after the plaintiff and his wife separated in 2000, he lived alone and did all of his own shopping, cleaning and other household tasks. Although he applied a number of times after the September 1999 motor accident for employment as a laboratory technician he was unsuccessful. At that time, the plaintiff experienced feelings of dizziness, headaches and an admitted psychiatric problem of depression with chronic pain, although by the time of the subject incident he said he was not consulting any medical practitioners as a result of that motor accident. From the first motor accident in 1986 the plaintiff said he had a neck problem. Interestingly the plaintiff said he had been involved since 1986 in as many as five or six motor accidents and on two such occasions in 1987-1988 had been knocked unconscious and suffered consequent headaches for which medication was taken.

22 Otherwise, prior to the incident at the Club, the patient’s condition seemed to be unremarkable. It need only be emphasised that since the September 1999 motor accident he had been unemployed, but was looking for work as a laboratory technician, with the extent of work being part time helping in his brother’s video store without pay.

Circumstances of the incident at the Club.

23 Beyond recalling attendance at the Club on Sunday evening, 23 March 2003, and having a drink of scotch at the bar, the plaintiff had no memory. Therefore in determining what occurred in this incident it is necessary to review the other evidence, that evidence comprised as a principal part of the case put by each party, film from closed-circuit television cameras positioned inside the foyer and bar area of the Club and most importantly from an outside camera covering the main entrance/exit door of the Club and the adjacent area. However, it is to be noted that the footage obtained was not all that clear and it was necessary for the film to be shown four or five times so as to enable a reasonable understanding of it. In any case the circumstances of the incident were the subject of oral evidence from the Club’s duty manager (for the plaintiff) and from the operations manager (for the first defendant) of Lani Richmond Promotions and Events which was engaged to promote and host events at the Club. In addition five witnesses to the incident gave statements to the police as part of the subsequent investigation and having in mind those persons (with one exception, who was not required for cross-examination) could not be located to give evidence. The statements were admitted into evidence in the first defendant’s case, it is convenient to consider the video film and each witness in turn.

24 Video film: Footage from three cameras was shown. The first was of activity in the bar area of the Club, called the Velvet Room, from 2.30am to 3.02am. Much of this period was not relevant and showed a crowded bar area with people drinking, conversing and moving around. At about 3.01am the activity increased with what seemed to be a group of people moving rapidly backwards and forwards in what could have been a scuffle; a female was seen getting up from the floor. Identification of those involved and who was doing what was not possible.

25 From the camera in the foyer area footage from 3.02am to 3.05am showed a person struggling in a very agitated and animated state being forcibly restrained by two persons. He broke free and went further inside the Club but then reappeared in the custody of two persons still in an agitated state and struggling and was then taken outside the Club through the main front doorway. The images were clear enough for persons to be identified.

26 The outside camera recorded events from 3.02am to 3.26am. Again, the images were not entirely clear but it was possible to discern the general course of what occurred and identification of the persons concerned was possible for those familiar with them. On emerging from the front doorway under physical force by another behind him with arms under the shoulders and hands around the back of the neck, apparently a hold called a “Full Nelson”, the person was “frog marched” to the right of the doorway along the footpath. The two escorts returned and stood outside and in front of the entrance to the Club. The escorted person was seen then to reappear, barechested and without his shirt on, and quickly moved towards the two persons who had escorted him away. A struggle occurred as the person seemed to be trying to get past the two persons. At least two other persons arrived and stood nearby as the struggle continued - it was then about 3.05am. A few seconds later, the person who earlier applied the Full Nelson, a tall and heavily built man, was then seen to punch the left-hand side of the person’s head with two quick blows with the right fist and, as he was falling to the ground, a left and then a right hand punch to the head occurred. The person fell to the ground. The assailant was then seen to leave and enter the Club to emerge a couple of minutes later carrying things which he used to do something on the ground near where the man was felled. Other people arrived to tend to the man on the ground as he lay motionless. About 3.20pm ambulance officers were seen to arrive and treated the injured person as he lay on the ground.

27 Ashley Semitecolos: Employed by Rejoleer for about ten years, Mr Semitecolos at the time of the incident was on duty at the Club as its duty manager. On Sunday he said the Club opened at 9pm and stayed open until 6am the following morning. Security at the Club during opening hours was provided by the first defendant, although not acting under the direction of Mr Semitecolos, and on Sundays four security guards were provided. On the night in question, the guards present were Joe Mataka (the second defendant), Waqa Kolivuso, John and a fourth person he could not recall; Mr Mataka was described as “tall and big ... solid”. Mr Semitecolos’s duties involved liaising with guests and bar staff, generally ensuring everything was in order and office work looking after cash and paperwork. Around 3am on the Monday morning concerned he was in his office.

28 On the television monitor screen in his office at 3.05am, Mr Semitecolos noticed activity at the front entrance to the Club which caused him to go there. He said he first saw a person known to him as “Doug” and then he saw “Bill” (the plaintiff) and another person who was the security guard “Joe” (the second defendant); Bill was shirtless. Mr Semitecolos said he then saw Joe punch Bill twice with his right arm as Bill stood in front of him - present also were Doug, Alofa Melei who was the Club’s door host at the time and another unidentified person but dressed as a security guard - Bill then fell to the ground with blood pooling on the ground from his head. Mr Semitecolos telephoned for the attendance of an ambulance as Alofa and another duty manager, Ashween Reddy, administered first aid to the plaintiff using a kit supplied by Mr Semitecolos. Joe was then seen with a bucket and there was water on the ground. A number of guests then exited the Club and left the scene. The ambulance duly arrived, stabilised the plaintiff and transported him from the Club.

29 Mr Semitecolos, although in his office at the time, was shown the video film of events in the foyer area at about 3.03am and identified the plaintiff as the person moving quickly followed by Joe Mataka and Waqa Kolivuso, the two security guards, with Alofa Melei and Doug Blaikie standing nearby.

30 Earlier in the evening, Mr Semitecolos had the opportunity to see the plaintiff who he knew from previous occasions at the Club. He said the plaintiff was generally “a very welcoming individual ... He’d shake your hand. He’d say how are you”. However, on the night in question the plaintiff appeared to be “quite rigid ... very rigid body ... He was almost staring, looked very aggressive and very cold”. On the other hand, Mr Semitecolos described Mr Mataka’s behaviour as a security guard as “professional, calm ... he followed correct security procedure ... a big teddy bear” and was not known to ever use force on guests or to inflict any injury on them. Another witness later described Mr Mataka as a “gentle giant”.

31 As to the specific incident outside the Club as recorded by the video camera around 3.05am when the plaintiff returned shirtless, Mr Semitecolos gave this evidence:

“Q. What was the first thing that you can recall seeing as far as any movements of Bill is concerned?
A. Bill appeared to me to be trying to get past the security guards.

Q. In trying to get past the security guard, what was he actually doing as far as you can recall it?
A. He was flailing his arms, trying to jump up, push maybe, around the security guards.

Q. Was he flailing his arms in any particular direction or towards anybody?
A. It was towards the security guards.
...
Q. Did it appear to you that he was using his arms in an attempt to get around the security guards?
A. Yes.

Q. Did you see contact between Bill’s arms or hands and the security guards?
A. Yes.

Q. Multiple contacts or only a single contact?
A. Multiple.

Q. Can you give us an estimate as to how many times his arms or his hands came into contact with the guards?
A. Just in those few split seconds, like five, six.
...
Q. That he (Bill) was pushing violently against guards, do you agree with that?
A. Yes.

Q. Do you agree that he, to your observations, hit the guards on more than one occasion?
A. He wasn’t throwing punches.

Q. But hit nevertheless?
A. If hitting is making contact with your arms - trying to get around, then yes.”

32 Douglas George Blaikie: As the Operations Manager for the promotions and events company at the Club on the night concerned, Mr Blaikie was engaged in hosting and coordinating events at the Club with the particular role of collecting fees at the entrance and permitting entry. He estimated about 240 to 250 people were present at the Club at the time on that early Monday morning. He was familiar with the plaintiff as a regular guest, but did not know his name, and at the time concerned he was wearing a red shirt.

33 Mr Blaikie was in his office off the foyer area of the Club and, on hearing a disturbance, opened the office door and saw the man in the red shirt being brought into the foyer “wrestling with guards ... was highly agitated” and was saying “fuck you, you fucking cunt, I’m going to fucking smash you. I’m going to fucking kill you”. He said the plaintiff was “swinging his arms around at people ... thrashing his arms wildly around, making guttural noises ... his eyes were very wild and a lot of spittle around his mouth”. Mr Blaikie then added as to events in the foyer area:

“Q. Do you recall what were the guards doing?
A. So I saw the guards bringing him into the foyer area trying to restrain him. There were two guards at a time, as I recall. One guard then had hold of him while he was thrashing around and the other guard then let go and turned around to question the crowd what was going on, to find out why the gentleman was, you know, behaving the way he was.

Q. Was he then moved out into the foyer area; do you recall that or not?
A. So they were in the foyer area for quite a while. The gentleman broke free of one of the guards and then started running back into the Velvet Room. The guard who had his back to that gentleman turned around just as that gentleman arrived and then pushed into that guard, almost knocking him to the ground.
...
Q. When what?
A. When the guard drove the gentleman in the red shirt back into the foyer area they were restraining him and then trying to pull him outside to take him outside of the Club. At that point I saw one of the guards swear and retract his hand away from the gentleman.
...
Q. Who was the security guard whose hand you later observed?
A. I can’t remember his full name ... we used to call him Waqa.
...
Q. What was it that you later observed of Waqa’s hand?
A. He had a mark on his hand that appeared to be a bite mark and we put plaster on it from the first aid kit.”

34 As to events which then occurred after the guards took the plaintiff outside the Club, Mr Blaikie gave this evidence:

“Q. What was he (the plaintiff) doing that you were able to observe in terms of his physical movements?
A. He was kicking, throwing his arms around, screaming.

Q. Then what happened as far as him being removed from inside the Club to a position outside, that you observed?
A. Once the guards got him outside the Club they took him past the cordoned off rope areas and at that point they let him go.

Q. Just to assist us, approximately to the best of your recollection, how far from the entrance doors had he been taken before he was let go? Can you recall that?
A. Approximately 10 to 15 metres.

Q. Then what happened after he had been let go?
A. The guards were standing back from him and he was standing in front of them screaming, clutching at his face and tore off his shirt.

Q. Just take it one step at a time. Firstly, what was he screaming at that point to the best of your recollection?
A. To the best of my recollection it was similar to what he was screaming inside the foyer - screaming ‘Let me back into the club. Fuck you. Fuck them. I’m going to kill you’.

Q. As far as the movement of his shirt was concerned, what did you actually see him do with his shirt?
A. He tore it off his body.

Q. How far away from the closest guard was he at the time that he tore his shirt off, that you observed?
A. A metre and a half, two metres.

Q. What did you then see happen?
A. At that point, after screaming for a moment and tearing off his shirt he then started running back at the guards and managed to break past the guards and came running back towards the Club doors.”

35 On Mr Blaikie’s evidence, present at this time outside the front entrance to the Club, apart from himself and the plaintiff was Alofa Melei (off duty promotions and events employee), Joe Mataka (the second defendant security guard) and Albert Siu (a security guard). As the plaintiff ran back towards the guards with arms swinging, Mr Blaikie said he struck multiple blows on Mr Melei who had raised his own arms in front of his body. At that point, Mr Blaikie said he stepped forward and restrained the plaintiff across the neck and chest and, with Mr Melei, put him on the ground and held him there. He explained the reason for that action as being “because I was scared that Alofa was going to be hurt and that the gentleman would get back inside the club”. While on the ground, Mr Blaikie said he told the plaintiff “cut it out, just calm down”. One of the security guards then told Mr Blaikie to release the man and he did. Thereupon the plaintiff stood up and yelled - “I’m gonna fucking smash you. I’m gonna fucking kill you”. With his arms swinging, the plaintiff was seen by Mr Blaikie to strike Albert Siu’s head with one of his hands.

36 Directly relevant for present purposes, Mr Blaikie gave this evidence as to what then happened:

“Q. All right. Was he moved away from the position where he had been in at the time you released him?
A. He stood up and moved - he got closer to the doors of the Club.

Q. From that position, was he then moved further away again, by the guards or not?
A. So as he moved forwards towards me and Albert stepped in front, the gentleman for a moment was pushing Albert back towards the doors and Albert then put his arms up and started moving the gentleman backwards. At that point, I believe Joe stepped forward to assist Albert with the gentleman, and I could not see from behind Joe and Albert, they were blocking my view and I could not see the gentleman any more from that point.
...
Q. However did you actually see a movement of one of the parts of their bodies, one of the guards?
A. I could hear slapping sounds.

Q. All right. Did you see any particular part of one of the guard’s bodies move in an unusual way?
A. I saw the guard’s head move back. I saw Albert’s head move back and to the side.

Q. Were you able to make any observation of what may have caused his head to move back?
A. One of the gentleman’s hands moving through the air.

Q. Were you able to recall seeing any contact between one of the gentleman’s hands and the head or were you only able to see the hand moving through the air and the movement of the head backwards?
A. I recall seeing and hearing contact with the gentleman’s hand against Albert’s head.”

37 Then, as to the involvement of Mr Mataka with the plaintiff, Mr Blaikie said he could not see any contact between them but “observed the gentleman striking his head against the floor - against the wall and against the ground… Saw him clutching his head and moaning on the ground and blood”.

38 Fransisco Corea: A statement dated 2 April 2003 by Mr Corea as to events inside the Club in the early morning hours of 24 March 2003 was without objection, admitted into evidence; he was not required for cross-examination by the plaintiff’s counsel. Mr Corea was employed by the company promoting events at the Club and at the time his duties involved controlling entry to the Club according to the dress code and behaviour rules. He said that around 2 or 3am he noticed a commotion at the entrance to the Velvet Room with about four or five people pushing and shoving each other; one of them was wearing a red shirt (Mr Blaikie said the plaintiff was wearing a red shirt). He reported the disturbance to Waqa Kolivuso, a security guard, and noticed him attempt to separate the people. As he did so, someone on his left hand side hit Mr Kolivuso as he turned to the right to grab the red shirted plaintiff - the plaintiff was seen to have smudges of blood on his chin - who was then taken into the foyer area repeatedly saying “Piss off, let me go, I am going to go in there and smash him. The fucking bastards I am going to fucking get them, I am going to fucking kill them.” Mr Corea saw Mr Kolivuso take the plaintiff outside saying “calm” and “go outside”, and a short time later he saw the red shirted plaintiff struggling with the security guards as Mr Kolivuso held him around the chest and told him to “calm down”. He heard the plaintiff continually yelling - “Let go of me, I am going to fucking get in there, don’t touch me.” Mr Corea then returned inside the Club and a few minutes later went outside again to see Mr Melei with a first aid kit attending to the plaintiff who was laying on the ground with blood near his head. Mr Corea watched until the ambulance arrived.

39 Waqa Kolivuso: On 9 April 2003, Mr Kolivuso made a statement to police concerning the subject incident. At the time he was employed by the first defendant as a security guard at the Club on Friday, Saturday and Sunday nights. On 24 March 2003 at about 3.00 am he said he was with Mr Mataka standing outside the front door the Club but went inside to the bar area when called by one of the promoters, known as “Dougie”. He saw Mr Siu trying to remove “Bill” (the plaintiff) out of the Club and went to assist Mr Siu. The plaintiff was apparently swearing a lot when someone behind Mr Kolivuso punched the plaintiff’s face causing him to fall to the ground. On helping the plaintiff to his feet, and noticing he had cuts near his eyes which were bleeding, he told him “You have to go outside”. In the process, Mr Kolivuso said the plaintiff started to struggle with him and tried to bite his hand as he felt “his teeth on the back of my hand”. Mr Mataka and Mr Kolivuso then proceeded to take the plaintiff outside with Mr Mataka holding his hands behind his back and Mr Siu assisting as the plaintiff tried to stay inside the Club. Once outside, Mr Kolivuso saw Mr Siu walk the plaintiff along the roadway, release him and then Mr Siu returned to where Mr Mataka was standing. On being asked by one of the promoters, Lani, to remove from the Club the man who had punched the plaintiff, Mr Kolivuso did so and the person left and did not return.

40 By that stage, Mr Kolivuso next saw the plaintiff laying on the ground outside the Club on the footpath near the front wall of the Club with Mr Mataka and Mr Siu standing beside him. He then saw Mr Melei and Mr Semitecolos attending the plaintiff with a medical kit and, on being asked by Mr Semitecolos to go back inside the Club to oversee activities, he did so. After about five minutes he again went outside and saw the ambulance arrive to attend to the plaintiff.

41 Later in the day after finishing work, Mr Kolivuso saw “a small scratch on the back of my left hand where Bill bit me. I didn’t bleed but I could feel it.” Interestingly, a week or so later, Mr Kolivuso said to Mr Mataka - “Did you do anything to Bill?”; Mr Mataka replied - “I just try and stop him coming back to the nightclub.”

42 Albert Siu: Employed part time by the first defendant as a security guard from Friday to Sunday evenings at the Club, Mr Siu was on duty on 23-24 March 2003. He gave police a statement dated 29 March 2003 as to the events at the Club at that time.

43 Mr Siu said he walked into the bar area and saw Bill (the plaintiff) standing in the middle of a group of men with blood on his face and “everyone was pushing and shoving”. Being alone, Mr Siu said he tried unsuccessfully to remove the plaintiff from the scene as he was screaming and, so, he called Mr Kolivuso and Mr Mataka to help him. They found it difficult to control the struggling plaintiff as they tried to take him outside; Mr Mataka eventually held him and took him outside onto the footpath where the plaintiff started to swear and said “I got hit for nothing” - Mr Siu and Mr Mataka outside released the plaintiff but he attempted to return inside the Club by striking and pushing Mr Siu. As Mr Siu said - “We tried to talk to him, to calm him down, but he wouldn’t listen to us. About three times he tried to push his way passed me. I kept hold of Bill by putting my arms around his body and holding tight. Joe said ‘Let him go,’ so I took my arms away and he ran passed me towards the entrance to the club.”

44 Mr Siu added in his statement:

“10. There were two guys standing at the entrance, a promoter, his name is Alofa (Melei) and the guy who collects the entry fees, Dougie (Blaikie). Alofa and Dougie took hold of Bill and put [him] down on the ground. When I looked down Dougie had Bill in a headlock and was holding him on the ground. Bill tried to struggle for a while and then he stopped. Joe said to Dougie ‘Let him go’. A few seconds later Bill got up off the ground and then he tried to get back into the club.

11. He tried to make his way inside. I think Joe stopped him. Joe tried to hold him back and they had a bit of a wrestle. There was just the two of them. Bill was trying to free himself. I think there might have been something wrong with him, he was off his head or something. I am not sure what happened, maybe Joe pushed him but all of a sudden Bill was on the ground. They were standing near the front wall of the Cave Nightclub. Maybe Bill hit the wall. They were standing very close to the wall and Bill was struggling very hard to get away so maybe he hit the wall but I am not sure. I was standing about three metres away. I was standing between where Joe and Bill were and the entrance to the club.

12. I can remember quite a few guys who were working standing around, I can remember Dougie was there, but I can’t remember the others. I can’t remember if Bill hit anyone or if anyone hit Bill. I just know he ended up on the ground. After he was on the ground someone came up to see if he was okay. I saw some blood on the ground right next to him. I had some blood on my shirt from where I was struggling with him....

13. I went back inside because there was heaps of people trying to assist Bill… I overheard the bar staff talking and one of the girls said that she saw Bill push one of the guy’s girlfriends and the girl fell over a table”.

45 Alofa Melei: Mr Melei was employed by the operator of the Club as a door host and performed that function up to about two months before the subject incident; however, he was present at the Club on the evening/morning concerned as a guest. He made a statement to police on 31 March 2003. At about 2.30 or 3am while sitting in the lounge area with his girlfriend and friends, he heard a crashing noise and saw that a girl had fallen onto a table a metre away from him. Mr Melei said that “Billy” (the plaintiff who was wearing a red shirt) was “staring towards her… standing front on and mouthing off to her”. Then, he saw a man walk up to the plaintiff and say “What the fuck are you doing?” After a short response by the plaintiff, the man then punched him on the chin and he fell to the floor. The plaintiff then got up and sat on a chair.

46 A few seconds later Mr Melei said the plaintiff stood up, yelled “I am going to kill you. I am going to kill everyone” and was making wild gestures with his arms as a number of men told him to “just relax”. Mr Siu then arrived and said “Come with me” as he took hold of one of the plaintiff’s arms to take him to the foyer area.

47 Relevantly, what then occurred was described as follows by Mr Melei:

“18. About ten seconds later I heard screaming and yelling coming from the foyer area. I heard it was Billy yelling out, ‘Fuck you, I am going to kill you, you fucking cunts’. I saw two other security guards trying to hold the guy back by holding him by the body. It was Albert and Waqa… Billy was trying to push past and appeared to be trying to get back inside.

19. …I decided to stand up and help out the security… my concerns that Billy would be attacked by the group (crowd of patrons) from his yelling out ‘I am going to kill you’… also concerned for the welfare of the security guards…

20. …I noticed that Albert, Waqa and Hoe had just got Billy out through the front door. Albert I think was leading in front of the guy, Joe was behind and Waqa was behind Joe. Billy was still yelling and screaming as he’d been led out…

21. I walked outside as well, I saw Albert holding Billy with his arms locked around Billy. Billy was still yelling and screaming and yelling out, ‘Let me go you fucking cunts’ and ‘I am going to kill everyone’. Joe and I yelled out at different times to Albert, ‘Let him go.’ I believed that he would just walk away.

22. Albert let go of Billy. Billy ripped off his own shirt and threw it on the ground.

23. He slapped a pillar located near the entrance about four or five times and yelling out, ‘you fucking bastards’.

24. I was standing with Dougie, Joe, Albert and Waqa near the front entrance. Billy came back towards the front of the entrance. Albert pushed Billy on the shoulder and said, ‘just go home’. Billy took a couple of steps back and said, ‘just let me in’. Billy pushed past Albert by the shoulder and walked back towards the entrance.

25. I grabbed hold of Billy by the shoulders. Joe grabbed him as well by the right arm. Billy tried to rip his arm free by pulling his elbow back. When he was doing that he was leaning backwards, he appeared to loose his footing and fell back about one foot behind, whilst turning to his right. He fell downwards and struck the right hand side of his head onto the cement wall.

26. I heard his head contact the wall. It was a loud noise…

27. …He looked up at us with an aggressive look. He stood up and lunged at me… He looked very angry. I grabbed hold of both of Billy’s elbows. Joe grabbed him from behind…

28. …I held onto his legs to stop him from kicking. Joe held his body down by using downwards pressure on his arms. Billy was still moving around. Dougie came over and held his head down… He was yelling out, ‘Let me go you fucking cunts’.

29. Dougie and I said words to the effect of, ‘just relax we are not letting you go until you relax’. About twenty seconds later, Billy appeared to have calmed down. We decide to let Billy go by walking back. About five seconds later Billy stood back up. He started going crazy again. He walked towards the door again. Joe was standing in front of the door. I was standing right behind Joe. He tried to push Joe aside by using both hands onto Joe’s chest region. Joe put his hands up as Billy began to throw his arms towards Joe’s head…

30. Joe stepped back and threw a punch with one of his hands towards Billy and connected with Billy’s right hand side eye area. Billy fell backwards. I could not see how he landed because Joe was in front of me.

31. I said to Joe, ‘That’s enough.’ I pushed in front of Joe. Joe backed off straight away…”

48 Mr Melei then asked Mr Semitecolos to call an ambulance as he attended to the plaintiff.

49 Nichola Te Kiri: Ms Te Kiri worked at the Club as a bartender and was performing such work at the time of the subject incident. In her statement to police made on 31 March 2003 she said she knew the plaintiff from his regular visits to the Club as a fun loving and friendly person. On the 23-24 March 2003 occasion she was working at the Club. However, on the plaintiff arriving just before midnight she greeted him, as usually was the case, but noticed he seemed “a bit depressed. Usually he is full of life, but he was more subdued than usual”. Interestingly, the plaintiff arrived with a male friend who was said by Ms Te Kiri to be wearing a red shirt. That was the only evidence of someone other than the plaintiff being the red shirted person concerned in the video and, indeed, there was no real issue between the parties that it was the plaintiff who wore the red shirt.

50 As it happened, Ms Te Kiri was absent from the bar area on a rest break when the relevant events took place and only became aware of them later. However, as a precursor she recited what happened when the plaintiff earlier ordered some drinks and as she handed him the glasses he scooped out some ice cubes and threw them at her “quite hard...not playful, but like he meant to hit me. I was quite shocked...he scowled at me and walked off...usually he is a lovely guy”.

51 Overview of the evidence: In reviewing the evidence it is to be immediately observed that the untested statements from the four persons who could not be located are to be treated with care - the fifth statement was from a person who was available but not required for cross-examination - and the evidence of the two persons who gave oral evidence may be treated with greater confidence. However, overall I found all of the evidence, perhaps remarkably in this complex of events, to be generally consistent in the main aspects of relevance and where, in any event, the video film provided objective certainty in what occurred. Indeed, as to the specific injury to the plaintiff, it was common ground between the parties that Mr Mataka inflicted it by a series of punches to his head in what was, as described by senior counsel for the first defendant, a “criminal act [in] viciously attacking the head of the plaintiff with a number of blows”. The photographs of the plaintiff in hospital certainly confirm that description. Of course, and this is where the totality of the events which occurred becomes relevant, the issues for the court concerned whether the first defendant was vicariously liable for the conduct of its employee, Mr Mataka and the availability to it of the defences under Pt 7 of the Civil Liability Act.

52 From my consideration of the evidence I make the following findings as credibly flowing from it:

(1) The plaintiff generally was a very welcoming person to others and who was fun loving and friendly.

(2) The plaintiff visited the Club as a member on a regular basis each Saturday evening into the early hours of Sunday and, in doing so, became known to club and other staff (including security guards) as “Bill”.

(3) The visit to the Club on the present occasion by the plaintiff on a Sunday evening/Monday morning was contrary to his usual practice of attending on Saturday evening/Sunday morning.

(4) At this time he attended with a male friend and the plaintiff was wearing a red shirt.

(5) For some unknown reason, the plaintiff was not his usual self on this occasion and seemed somewhat depressed with an aggressive, rigid and cold appearance.

(6) Relatively early during the visit in the bar the plaintiff apparently without cause threw some ice cubes at the bartender Ms Te Kiri, scowled at her and then walked away.

(7) Just before 3am in the Velvet Room of the Club it seemed that the plaintiff was involved in some way when a female guest fell onto or between tables.

(8) A friend of that female then punched the plaintiff in the face causing him to fall to the floor; he then sat on a chair with a bleeding cut near an eye.

(9) A few seconds later the plaintiff became agitated, stood up and yelled words to the effect - “I am going to kill you. I am going to kill everyone”; at the same time he was wildly gesturing with his arms as a group of men formed with people pushing and shoving.

(10) Mr Siu attended and tried to remove the plaintiff from the scene into the foyer area but with his screaming and physical actions could not do so; Mr Kolivuso and Mr Mataka arrived to assist Mr Siu to take the plaintiff outside but even they found it difficult to do so.

(11) In the foyer area, outside the Velvet Room, the plaintiff was still resisting being removed and was yelling out - “Fuck you, I am going to kill you, you fucking cunts”; Mr Melei as a visitor to the Club, previously a door host employed by the Club, expressed concern for the plaintiff from other patrons because of his language and for the welfare of the security guards in handling him.

(12) In the course of this, Mr Kolivuso’s left hand was bitten by the plaintiff.

(13) Eventually, Mr Mataka was able to control the plaintiff by holding him with a “Full Nelson” and, with Mr Siu and Mr Kolivuso following, removed the plaintiff from the Club by forcibly taking him outside through the front door as he kicked, screamed and threw his arms around.

(14) Mr Mataka was an employee of the first defendant and in seeking to remove the plaintiff from the Club did so in the course and for the purposes of that employment.

(15) Outside the Club on the footpath about 10 to 15 metres to the right-hand side of the entrance, the security guards released the plaintiff.

(16) Mr Kolivuso then re-entered the Club and, without further incident, removed the man who had earlier punched the plaintiff.

(17) In the meantime, outside on the footpath the persons present were Mr Blaikie, Mr Melei, Mr Mataka and Mr Siu. The plaintiff then returned towards the Club entrance with his arms swinging and as he did so tore off his shirt to confront the guards by saying - “Let me back into the Club. Fuck you. Fuck them. I’m going to kill you”.

(18) In this process, the plaintiff struck Mr Melei with multiple blows whereupon Mr Blaikie and Mr Melei, and by then possibly Mr Kolivuso, tackled the plaintiff to the ground and held him down; Mr Blaikie was concerned the plaintiff would get back inside the Club and that Mr Melei would be injured. On Mr Mataka’s suggestion the plaintiff was let go as he appeared to then calm down.

(19) Then the plaintiff stood up and said - “I’m gonna fucking smash you. I’m gonna fucking kill you”; with his arms swinging, the plaintiff struck Mr Siu’s head with his hand and inflicted multiple blows to the others present as he tried to return inside the Club.

(20) Mr Siu grabbed the plaintiff’s upper body and started to push him backwards as Mr Mataka seemed to wrestle the plaintiff who was trying to break free.

(21) The plaintiff then pushed Mr Mataka in the chest whereupon Mr Mataka stood back and threw two right hand punches to the plaintiff’s head, paused as the plaintiff began to fall, and then quick right and left punches to the head felling the plaintiff to the ground.

(22) The motivation for Mr Mataka’s actions was to stop the plaintiff returning to the Club.

(23) Mr Mataka left and went inside the Club but shortly returned with a bucket of water and cloths to clean the footpath where the incident occurred. Mr Melei, Mr Semitecolos and Mr Blaikie attended to the plaintiff until the ambulance arrived to transport the injured plaintiff to Royal Prince Alfred Hospital.

Authority to remove plaintiff from the Club

53 Although not contentious here, it is appropriate for completeness to indicate the authority of the Club, through its contracted security provider (the first defendant) using an employee (Mr Mataka) and the other security guards, to remove the plaintiff from the premises. The Registered Clubs Act 1976 in s 44A(1) makes it an offence for the secretary of a registered club to permit any “indecent, violent or quarrelsome conduct on the Club premises”. In s 67A of the statute the removal of a person from the premises of a registered club is dealt with, in terms, under sub-s (1)(a) of a person “who is then...violent, quarrelsome or disorderly” and under sub-s (1)(c) of a person “whose presence on the premises renders the Club or the secretary of the Club liable to a penalty under this Act”. In those circumstances, pursuant to s 67A(1), the secretary or employee of a club “may refuse to admit to the registered club and may turn out, or cause to be turned out, of the premises of the Club any person” so behaving.

54 Here, I am satisfied from the facts as found that the plaintiff at all relevant times on 24 March 2003 engaged on the premises of the Club in violent or quarrelsome conduct so that the Club in permitting him to stay on the premises would have rendered itself liable to a penalty under s 44A(1). The Club was therefore authorised. in the language of s 67A(1) to “refuse to admit...turn out, or cause to be turned out, of the premises” the plaintiff who was so engaging in violent or quarrelsome conduct and, it may be added, in disorderly conduct. The Club did and I think it was proper for it to have done so.

55 Section 67A(3) requires for the purpose of a person being refused admission or “turned out” (that is, removed) from a club to be subject to “such reasonable force as may be necessary”. In this case, the degree of force so used by the security guards, particularly that of Mr Mataka in seeking to prevent the re-admission of the plaintiff to the Club, very much goes to the central issue of vicarious liability and the statutory defences. I will deal with that aspect later.

56 Finally on the authority issue, it should be mentioned that under s 67A(4) of the Registered Clubs Act the plaintiff had a duty on being asked to leave the premises to do so on pain of a monetary penalty for not complying.

Consequences of the plaintiff’s injury

57 The ambulance attended the scene at 3.17am on 24 March 2003, stabilised the plaintiff and arrived at Royal Prince Alfred Hospital at 3.32am. The ambulance report noted the patient had lost consciousness and on examination the Glasgow Coma Score was only 3 but which rose to 10 about two minutes later. Swelling and lacerations to the face with movement of all limbs were recorded and the report stated the patient “smells of [alcohol], patient indicates [alcohol] & 1 x ecstasy this [morning]”.

58 On admission to hospital a diagnosis of closed head injury secondary to assault was made and the plaintiff was referred to a neurosurgeon, Dr Michael Besser, who that day performed urgent surgery of a craniotomy but, due to persisting intracranial pressure, further surgery was required the next day. It seems the plaintiff remained in the intensive care unit until 30 March 2003 until eventual discharge on 7 April 2003.

59 Dr Besser kept the plaintiff under review from time to time and on 24 July 2003 performed surgery to re-insert the skull bone flap. In a report dated 11 May 2005, Dr Besser said he had arranged for the plaintiff to be assessed by Dr JDG Watson, a consultant neurologist, on 3 May 2005 and those investigations were underway. In the meantime, Dr Besser gave a guarded prognosis as the plaintiff continued to be disabled with headaches, dizziness and a degree of depression; cognitive disturbances were manifested by memory loss.

60 Dr Watson first saw the plaintiff on 3 May 2005 and reviewed him on 28 June and 16 August 2005. In treating the plaintiff, Dr Watson had access to the neuropsychological assessment by Ms Zoe Thayer made on 29 June 2005. In his report of 11 October 2005, Dr Watson diagnosed traumatic brain injury with subsequent cognitive dysfunction and ongoing headache from the subject incident; however, he had a concern about the overall genuineness of the cognitive complaints because more accurate answers to a number of the questions were expected even with significant brain damage. Even so, he considered that as at May 2005 the plaintiff was unfit for work in the open labour market because of the cognitive difficulties and it was most unlikely he would be fit for the pre-injury employment. Dr Watson, with the period of two years since the initial injury, thought there would be very little further improvement in the plaintiff’s cognition but better control of his depressed mood and specialised rehabilitation would assist. For that reason, Dr Watson referred the plaintiff to Dr Kathy McCarthy, a consultant in rehabilitation medicine, at the Westmead Hospital Brain Injury Clinic.

61 Ms Thayer assessed the plaintiff on 28 June 2005 in a session which lasted for four hours and included cognitive and psychometric testing. Ms Thayer in her report gave the following opinion:

“...He currently reports experiencing problems with concentration, memory, daily headaches, increased irritability, fatigue and depression. He has experienced some depression in the past associated with the consequences of a car accident and also at the time of the break up of his marriage.

The present Neuropsychological assessment yielded an estimate of pre-morbid intellectual abilities in the average range. His performance on many of the current measures of cognitive function was below this expected level. Weaknesses were evident on tasks requiring recall of visual information from a single presentation on tasks tapping sustained attention and working memory, tests of verbal memory, tests of flexible thinking and on tests of psychomotor speed. These findings are consistent with the sites of the reported brain injuries and suggest a degree of bitemporal and frontal lobe dysfunction.

There is also evidence that Mr Kassem is suffering from a significant mood disorder. The development of the depression may have contributed to his perception of worsening memory function as reported in a letter from Dr Besser. This undoubtedly has some effect on his cognitive abilities but this alone cannot account for the extent of the difficulties revealed on testing.”

62 The plaintiff was initially reviewed by Dr McCarthy on 7 January 2006 who found he had clearly suffered “a very severe traumatic brain injury”. She considered from the tests conducted by Ms Thayer that there was no evidence to suggest malingering by intentional poor performance and that premorbid intellectual abilities in the average range was now below that level. Like Dr Watson, Dr McCarthy considered the period of two years after the injury represented the plaintiff’s condition as being of significant permanent cognitive impairment, including a significant mood disorder of depression, reduced sleep and early morning wakening. As to fitness for work, Dr McCarthy thought the plaintiff could manage part time or casual work like he was doing in the music video shop for two to three hours a day over several days a week; she placed his impairment from the traumatic brain injury at 40 per cent. In the result, Dr McCarthy considered the plaintiff would need psychological therapy of about 10 sessions a year for three years at a cost of $185 per session to manage his depression and then to address adjustment to a life-long disability and to manage his anger and irritability.

63 Dr Watson then reviewed the plaintiff on 28 February 2006, 2 August 2006 and 28 March 2007. Dr Watson estimated the plaintiff’s depression in the mild to moderate category as being impairment of 20 per cent, cognitive disturbance was put at 15 per cent and impairment from pain at 5 per cent - overall the estimate of whole person impairment was in the range of 24 to 35 per cent.

64 On 3 June 2008, Dr McCarthy reviewed the plaintiff and reported, in effect, a continuation of the plaintiff’s earlier complaints but with a focus by him on his physical appearance which prompted discussion of referral to a plastic surgeon but this has not occurred.

65 For the plaintiff himself, on discharge from hospital on 7 April 2003 he went to live with his former wife, at her request, for four months so she could care for and attend to his needs. For the first time he then saw from photographs taken by her the misshapen appearance of his head on the left hand side - he said he “start crying...half my head looked like it’s gone and I’m not the same”. At this time a bone from the skull had been removed so that he had to wear a protective helmet until the bone flap was replaced during the operation on 24 July 2003. After four days in hospital he returned to his former wife for one week. During that period she attended to his personal care, hygiene and feeding as he was confined to bed rest dealing with the head pain; a lack of concentration and understanding restricted his activities and his two children were scared to go near him because he did not look the same as they knew him. In early-August 2003 the plaintiff moved to live with his father and then his sister for about three or four months because he still needed care and assistance; he returned to live alone at his own home at the end of 2003.

132 General damages: Age 34 years at the time of the incident, the plaintiff suffered in the incident quite severe head and facial injuries which required three operative procedures from a neurosurgeon; he was hospitalised for two periods of two weeks and then for four days. The injuries were clearly life-threatening and the plaintiff, fortunately, has no recollection of the incident but the immediate consequences of his condition, intensive care procedures, the need to wear a skull cap and appearance had their effect on him. Longer term, the plaintiff remains embarrassed about his appearance and experiences headaches, lack of concentration, dizziness, memory loss and cognitive impairment. His family and social life have been adversely affected, particularly with the children from his first marriage. However, the fact he has married for the second time since the incident and now has a baby daughter is seen as encouraging for him. Nevertheless, in evidence he did express consequent feelings of anger and frustration with his condition and of its various effects on his usual life.

133 I did not discern any real challenge to the evidence concerning the plaintiff’s condition from the incident, including of the medical evidence. The only area of expressed concern was the pre-existing condition he had from a number of motor vehicle accidents which apparently resulted in continued headaches and some dizziness. This aspect was not pursued to any real extent by the first defendant, and certainly not by identifying its extent. I will therefore not pursue it.

134 For the future, the plaintiff does not face extensive treatment other than a suggested need for psychological counselling to address feelings of depression and participation in a pain management programme at a brain injury rehabilitation clinic. Surgery in the form of a cranioplasty and plastic surgery to correct the appearance of his head was recommended but the plaintiff did not express any enthusiasm for those measures.

135 In considering this element of general damages I have attended to the circumstances in which the injury was sustained in the sense of compensation for the manner in which the harm done to the plaintiff was carried out by a vicious assault. However, the plaintiff has no recollection of the events and, in any case, he himself was engaged in a course of conduct by resisting and confronting the security guards with threats to others in the Club, so that there was a very real potential for injury; certainly there was no indignity suffered by him. I would, therefore, only allow for this aspect to the extent of compensation for the deliberate intent of Mr Mataka in inflicting the injury which may be said to have aggravated the harm done.

136 General damages were claimed in the amount of $250,000; the first defendant proposed $100,000. I consider an appropriate amount to be $225,000.

137 Exemplary damages: The claim for this component of damages was $300,000 but which was wholly resisted by the first defendant. Such damages, as Windeyer J observed in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 149, “are intended to punish the defendant and presumably to serve one or more of the objects of punishment - moral, retribution or deterrence”. In Kiperman v Highflame Pty Ltd [2007] NSWDC 165, Johnstone DCJ, in rejecting a claim for exemplary damages, said (at [84]):

“…Such damages are to be awarded to register the seriousness of the misconduct; to punish and deter and to assuage any urge for revenge: Lamb v Cotogno (1987) 164 CLR 1 at page 9. If it were the assailant himself who was being sued, there might be a case for an award of such damages, however, in the absence of some evidence of knowledge on part of the present defendants that Mr Mahutariki had some sort of predisposition to indiscriminate violence, there is in my view no basis for an award of exemplary damages.”

138 I would respectfully adopt and follow his Honour’s approach. I have already included in the award of general damages a component for the circumstances in which the harm was done to the plaintiff by Mr Mataka’s deliberate intent - one may style that as “aggravated damages” in the sense stated by Windeyer J in Uren (at 149) to “compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done”. Here, I see no basis for an award to punish the first defendant for the wrongful conduct of Mr Mataka as, in my view, the extent of its vicarious liability is limited to compensation. Like Johnstone DCJ in Kiperman, I may have been prepared to allow some exemplary damages if the evidence was that the first defendant knew Mr Mataka was predisposed to excessive or unlawful violence in the performance of his duties. However, the evidence is to the contrary - Mr Semitecolos described Mr Mataka as “professional, calm…he followed correct security procedure…a big Teddy bear”; Mr Mataka was even referred to as a “gentle giant”.

139 I would disallow any award for exemplary damages.

140 Past out of pocket expenses: These were in the agreed amount of $18,451.55. I would allow that amount in any award.

141 Future out-of-pocket expenses: The first defendant, on the basis of a lack of supporting evidence, proposed a buffer of $5,000 for future expenses. On the other hand, for the plaintiff an amount of $74,020 was sought.

142 I have to say that the evidence relating to these expenses was quite sparse and incomplete. At best, there was detail of the need for and cost of psychological counselling and pain management of $185 per session for 10 sessions annually for three years. Otherwise, the plaintiff in relation to the injury and disabilities from the incident takes pain medication for headaches at a cost of $30 per month. The items making up the claim were particularised and covered lifelong consultations with a general practitioner and specialists, medication, surgery, counselling and rehabilitation.

143 In the state of the evidence, I think the first defendant’s approach of a buffer is appropriate but where, in my view, $5,000 is quite inadequate recognition. The present cost of mediation, which will be ongoing, is about $7.00 per week and the counselling costs are about $35.00 dollars per week (albeit for three years only). It is not unreasonable to accept that the plaintiff also would require general practitioner review in the future once or twice a year and precautionary consultations with a neurologist. Overall, it seems to me, an assessment of $20.00 to $25.00 per week for future expenses would not be unreasonable which, I think should be allowed as a buffer of $20,000.

144 Past domestic assistance: Again, in the absence of supportive evidence as to the hours provided and the extent, it was put for the first defendant that $6,300 would be a reasonable amount to allow for this element of past care based on two hours per day for three months and then one hour per day for three months at a rate of $25.00 per hour. Against that, the plaintiff claimed a total of $52,075 for the whole period to date since the incident,

145 The plaintiff’s evidence was that immediately following the incident he had hospital care for two weeks followed by full-time care by his former wife for about 14 weeks and a further one week in hospital; he was then given full-time care by his father and sister for about 16 weeks; he then returned to his own house where he lived alone and cared for himself. On marrying for the second time in June 2006 he lived with his wife but there was no evidence either from him or his new wife that the domestic activities she performed for him were due to the injuries from the incident. One may properly infer, therefore, that any assistance he received was in the course of ordinary family life.

146 It is appropriate to allow for past gratuitous domestic assistance of 21 per week (the quantum suggested for the plaintiff) for those initial 30 weeks at the agreed rate of $25.00 per hour. The resultant amount I would therefore assess for this element is $15,750.

147 Future domestic assistance: Consistent with my approach for the past, in the absence of any evidence of the need for and extent of future care, I would not allow anything for this component.

148 Past economic loss: Loss of past wages is a difficult component to assess. His claim was based on employment as a laboratory technician being denied him because of injury from the incident at a loss of $700.00 net per week (rate was mathematically agreed) giving an amount of $191,590. Based on the plaintiff’s prior employment history, the first defendant suggested a buffer of $20,000.

149 I consider the first defendant was correct in submitting that “the plaintiff has a singularly unimpressive work history dating from even before his 1999 motor vehicle accident.” Although the plaintiff was qualified to be a laboratory technician, the last time he was employed as such was in 1993 and, even then, for only a very short period of about 11 weeks in the period of 10 years immediately before the subject incident occurred in March 2003. Of course, at that time he was unemployed and effectively had been so since the 1999 motor accident other than part-time work for a short period in his brother’s video shop. In light of the history, and despite his assertions to the contrary, I am simply not satisfied that the plaintiff, particularly as he was 34 years of age at the date of the subject incident (now six and a half years ago), would ever have resumed employment as a laboratory technician even absent the occurrence of the incident.

150 It is now just under six and a half years since the plaintiff was injured at the Club, 6.42 years to be precise. He continues to be unemployed notwithstanding attempts he said he had made to find work but, in reality, he presented himself as totally incapacitated for any gainful employment. On the medical evidence, however, he had a capacity for part-time work in a supervised capacity for up to about eight hours per week, on one view, but on another view he could work full-time. The comment was made, however, that the plaintiff seems to have declined into a “sickness” role.

151 In the circumstances, and the state of the evidence, I would assess the plaintiff’s past wages loss on the basis of his incapacity to engage in gainful employment on the open labour market. That incapacity for a period of three years since the incident, that is to March 2006 just prior to his trip to Lebanon and second marriage, I would accept was total and thereafter to date as partial - I would allow for total incapacity an amount of $500.00 per week and for partial incapacity an amount of $250.00 per week.

152 On that basis past economic loss calculates to $122,460.

153 Future economic loss: An assessment for future wages loss has the same difficulties as for the past. Given improvement with the passage of time and the benefits from counselling and pain management, I think an incapacity for the next 24 years to normal retirement at age 65 years of $150.00 per week would be reasonable and appropriate to allow. That results in an amount of $114,354.75 (multiplier of 896.9 on 3% tables less 15% for vicissitudes).

154 Superannuation on economic loss: To the amounts found for past and future economic loss, a total of $236,814.75, loss of superannuation benefits should be allowed calculated at 11 per cent of the net loss, that is, $26,049.62.

155 Interest: The plaintiff claimed interest on the general damages and on the past amounts for out-of-pocket expenses, domestic assistance and economic loss. The first defendant did not resist this claim and its senior counsel simply said there was “no quibble” with it. It should, therefore, be allowed.

156 The total amount of the four elements concerned is $381,661.55. I calculate the interest component as $24,502.67 being one half of the principal amount at 2% per annum for 6.42 years.

157 Summary of damages: The damages I would assess are $225,000 for general damages, $18,451.55 for past out-of-pocket expenses, $20,000 for future out-of-pocket expenses, $15,750 for past domestic assistance, $122,460 for past economic loss, $114,354.75 for future economic loss, $26,049.62 for superannuation loss and $24,502.67 for interest. The total damages I would assess are therefore $566,568.59 if otherwise the plaintiff had been successful.

Conclusions

158 For the foregoing reasons, I find that the first defendant is vicariously liable to the plaintiff for the wrongful assault committed on him by Mr Mataka on 24 March 2003 outside the entrance to the Club whereby he was injured. Mr Mataka was not acting in self-defence as would enable the first defendant to avoid any liability under s 52 of the Civil Liability Act because Mr Mataka’s conduct in punching the plaintiff was not a reasonable response to the conduct of the plaintiff. In any event, I do not consider s 53 of the statute operates to make Mr Mataka’s conduct in self-defence because it was not shown by the first defendant that such conduct was necessary for Mr Mataka to defend himself or another person or to prevent a criminal trespass. The first defendant therefore incurred liability.

159 However, I am satisfied that the first defendant has established the defence under s 54(1) of the Civil Liability Act that damages are not to be awarded to the plaintiff where he has engaged in conduct constituting the serious offences under the Crimes Act of affray and common assault. Section 54(2) of the statute was not shown by the plaintiff to make s 54(1) inapplicable because the sub-section, in its terms, only operates to save an award of damages against the person whose conduct caused the injury and where that conduct constituted a criminal offence. That “person” is Mr Mataka and not the first defendant. In any event, the first defendant within the scope of s 54(2) could not be vicariously criminally liable for the assault committed by Mr Mataka as that assault is an offence requiring mens rea. Therefore, s 54(1) applies to deny any award of damages to the plaintiff from the first defendant.

160 In the event my conclusions be in error and the first defendant is liable for damages to the plaintiff, I would assess such damages in the amount of $566,568.59.

Orders

161 Notwithstanding the first defendant’s vicarious liability, as damages are the gist of the action the plaintiff’s claim must fail and it is appropriate to enter a verdict for the first defendant accordingly. I will hear the parties on costs before making final orders.

COUNSEL ADDRESSED ON COSTS

162 On giving judgment in this matter in favour of the first defendant, the first defendant made an application that the plaintiff should pay its costs in the ordinary way. That was resisted by the plaintiff, on the basis that in the circumstances there should be no order as to costs. The principal, indeed the only basis for such an application by the plaintiff, was the lack of means of the plaintiff to pay costs in any event. It is true that an award of costs in proceedings is within the discretion of the trial judge, and such a discretion, it may be said, is quite broad and must take into account the totality of the circumstances. However, at the end of the day, in exercising discretion it must be done judicially, that is, in accordance with reason and logic.

163 I find no substance in the basis relied upon by the plaintiff to resist a costs order against him being made in the ordinary way, that is, that costs follow the event. Accordingly, in the disposition of these proceedings I make the following orders:

(1) Verdict and judgment for the first defendant against the plaintiff on the action.

(2) Plaintiff to pay the first defendant’s costs of the proceedings in an amount as agreed or assessed.

(3) I direct that the exhibits remain with the file to be returned on application made to the Registrar after twenty-eight days.

(4) The Court also notes the order made on 25 March 2009 that the proceedings against the second defendant be dismissed.

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