D'Vorak v Hiscox
[2008] WADC 152
•15 OCTOBER 2008
D'VORAK -v- HISCOX [2008] WADC 152
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WADC 152 | |
| Case No: | CIV:1051/2007 | 9 SEPTEMBER 2008 | |
| Coram: | COMMISSIONER O'NEAL | 15/10/08 | |
| PERTH | |||
| 31 | Judgment Part: | 1 of 1 | |
| Result: | Judgment for plaintiff | ||
| PDF Version |
| Parties: | PAUL STEPHEN D'VORAK SIMON NEVILLE HISCOX |
Catchwords: | Personal injury Voluntary assumption of risk Negligence Contributory negligence Trespass to the person Consent Turns on facts |
Legislation: | Civil Liability Act 2002 s 3A, s 5A, s 5B, s 5D, s 5L Law Reform (Contributory Negligence & Tortfeasors Contribution) Act 1947 |
Case References: | McHale v Watson (1964) 111 CLR 384 Platt v Nutt (1988) 12 NSWLR 231 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
SIMON NEVILLE HISCOX
Defendant
Catchwords:
Personal injury - Voluntary assumption of risk - Negligence - Contributory negligence - Trespass to the person - Consent - Turns on facts
Legislation:
Civil Liability Act 2002 s 3A, s 5A, s 5B, s 5D, s 5L
Law Reform (Contributory Negligence & Tortfeasors Contribution) Act 1947
Result:
Judgment for plaintiff
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Representation:
Counsel:
Plaintiff : Mr S Walsh QC & Mr D Bayly
Defendant : Mr T Lampropoulos SC
Solicitors:
Plaintiff : Bradley Bayly Legal
Defendant : SRB Legal
Case(s) referred to in judgment(s):
McHale v Watson (1964) 111 CLR 384
Platt v Nutt (1988) 12 NSWLR 231
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1 COMMISSIONER O'NEAL: On 5 and 6 January 2007 the plaintiff attended his cousin's 40th birthday party. The party was as unremarkable as any similar social gathering of adults in backyards across Western Australia. At least, it was unremarkable until the plaintiff decided to say goodbye to his cousin the host, at about 3.00am.
2 As the plaintiff stood by a trampoline in his cousin's backyard, waiting for his cousin who was bouncing on the trampoline, another party guest tried to engage the plaintiff in what has been described as "horse play". The other guest was the defendant. It is not suggested that there was any ill will by the defendant towards the plaintiff or that the defendant intended to cause any physical harm to the plaintiff. However as a consequence of that "horse play" the plaintiff, who was a healthy and active 34-year-old, was left a quadriplegic.
3 In this action the plaintiff sues for damages for the personal injury that he has suffered. Prior to trial the parties agreed the amount of damages to which the plaintiff would be entitled if liability was found against the defendant. Accordingly all that falls for me to determine is the issue of liability.
4 The plaintiff's claim against the defendant is based on two causes of action: negligence and trespass to the plaintiff's person. There is no dispute between the parties that at 3.00am on the morning of 6 January 2007 the defendant grabbed the plaintiff from behind in a bear hug, effectively pinning the plaintiff's arms to his sides. There is a dispute between the parties as to what happened in the seconds that followed. When the defendant released the plaintiff from a bear hug the plaintiff was propelled towards the trampoline where the plaintiff's cousin Wayne Zolnier was bouncing. The plaintiff struck the back of Zolnier's legs and Zolnier landed on the plaintiff's neck with a disastrous result.
5 There is no issue here and the defendant accepts that the defendant owed the plaintiff a duty of care. While it was not articulated in the pleadings, it is obvious that each of the guests at the party owed a duty to take reasonable care to avoid causing physical injury to other guests, particularly if one guest proposed to lay hands on another. The defendant conceded in cross-examination that pushing a person towards a trampoline when someone was bouncing on it was dangerous. Given the undemanding nature of the test of foreseeability it is apparent that there was a foreseeable risk of harm, on the defendant's own evidence, if it was the defendant who propelled the plaintiff onto the trampoline.
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6 The substance of the defence was that the physical contact between the plaintiff and defendant was much less violent than that alleged by the plaintiff, that the plaintiff effectively consented to the contact that actually occurred, and knowing of the danger voluntarily accepted the risk of physical injury, impliedly agreeing to waive any right of action against the defendant. There is an alternative plea of contributory negligence.
7 There are several categories of factual issues for determination. The first is the nature and extent of the physical contact between the plaintiff and defendant before the plaintiff landed on the trampoline. The second area of factual dispute relates to the ultimate question as to whether the plaintiff consented to the physical contact that occurred.
8 It is not suggested that there was express consent. Rather, the defendant contends that the plaintiff's consent is to be implied from a variety of circumstances and facts. These include the nature of the personal relationship between the plaintiff and the defendant prior to the incident, the plaintiff's consumption of alcohol and alleged intoxication at the party, and the plaintiff's continued presence at a party where it is alleged at par 9 of the defence that:
"… 'not insignificant quantities of alcohol were consumed by the plaintiff, the defendant and all or most of the others at the party, engaging in physical activity in the nature of good hearted pushing and shoving, wrestling, use of an in ground trampoline and other physical interactions which the participants including the plaintiff knew or ought to have known were being undertaken by all present in circumstances where everyone was less capable of making judgments than otherwise might be the case, and were more likely to use physical force less carefully than would otherwise be the case."
9 It is alleged by the defendant that the plaintiff's consent to physical contact with the defendant may also be implied from the plaintiff willingly engaging "in a series of interactions with the defendant, including kicking a soccer ball at him on a number of occasions which was all part of light-hearted horse play". Accordingly, I must determine the extent of any such interaction and its character.
10 An issue related to the alleged voluntary acceptance of risk by the plaintiff is the question as to whether he had knowledge of the risk inherent in the "light hearted horse play".
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11 The plea of contributory negligence alleges that the same matters relied upon to demonstrate consent by the plaintiff to the defendant's physical contact, or voluntary assumption of the risk of such contact, establish that the plaintiff failed to take reasonable care for his own safety.
12 The third area of factual issues that need to be resolved is the actual sequence of events commencing with the defendant's bear hug of the plaintiff and ending with the plaintiff's injury.
13 The legal issues or issues of mixed fact and law that may arise for determination depending on the resolution of the various factual issues can be summarised as follows:
1. did the conduct of the defendant amount to a "trespass" against the plaintiff or did the plaintiff consent to the physical contact with the defendant that occurred?;
2 if there was a trespass against the plaintiff were the injuries that the plaintiff suffered a "direct" or an "indirect consequence" of the trespass?;
3. in all of the circumstances can there be implied an agreement on the part of the plaintiff to bear any risk of physical injury himself, effectively exempting the defendant from liability for negligence;
4. whether, if the plaintiff's injuries were a direct consequence of a trespass, the burden of proof shifts to the defendant to establish that the trespass occurred without either an intention to injure the plaintiff or negligence on the part of the defendant. The plaintiff has not alleged any intention to cause harm on the part of the defendant. If the burden does not shift to the defendant then of course the plaintiff must establish all of the usual elements of negligence to the civil standard of proof; and
5. whether s 5L of the Civil Liability Act 2002 should be applied here so that contributory negligence on the part of the plaintiff is to be presumed if it is established that the plaintiff was intoxicated. For the purposes of s 5L "intoxicated" means "to be affected by alcohol or a drug … to such an extent that a person's capacity to exercise reasonable care and skill is impaired".
Personal Relationships
14 As might be expected, the guests at the party were predominantly friends of Mr Zolnier and the partners of those friends. Many of the
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- guests like Mr Zolnier, the plaintiff and the defendant had grown up in the City of Bunbury.
15 Mr Zolnier regarded the plaintiff as not merely his cousin but a good friend. Mr Zolnier had known the defendant since age 16. They had been friends for a very long time and the defendant was also Mr Zolnier's accountant.
16 David D'Vorak, the plaintiff's older brother and another cousin of Mr Zolnier was a guest at the party. He recognised a number of people at the party as family members and friends but there were a number of people at the party who he described as "more friends of Wayne but people that I knew through Wayne". He knew the defendant not on any social basis but as his, D'Vorak's, accountant. He had difficulty recalling any occasion when he had seen the defendant socially other than at an uncle's funeral in 2006.
17 Gregory Laves was called as a witness for the plaintiff. Mr Laves was 42 years old at the time of the trial. He grew up in and has lived most of his life in Bunbury. He and Wayne Zolnier had known each other for over 20 years. Mr Zolnier had been Mr Laves' best man when he married. Mr Laves was part of a group of friends who met at social gatherings that included Wayne Zolnier and the defendant.
18 Mr Laves has known the defendant since they met at school at about age 13. Mr Laves described the defendant as "a very good friend and my accountant as well".
19 Mr Laves met the plaintiff through Wayne Zolnier. At one time, both the plaintiff and Mr Laves worked at the Worsley Alumina Site, although for different employers. According to Mr Laves the plaintiff was occasionally a part of the group of friends and present at social gatherings. Members of the group shared an interest in surfing.
20 Bradley Wood was called as a witness for the plaintiff. He was 41 years old at the time of the trial. About 17 years ago Mr Wood lived in Bunbury and did his schooling there. He has known Wayne Zolnier since the age of 5. Mr Zolnier and Mr Wood went to school together and Mr Wood regarded Mr Zolnier as a very good friend. Mr Wood has also known the defendant for approximately 20 years and regarded him as a friend. Mr Wood also knows the plaintiff because the plaintiff grew up four houses up the road from where Mr Wood grew up. However, because of the age gap between the men, once Mr Wood started going to high school he saw less and less of the plaintiff.
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21 Mr Wood was part of the group of friends that included among others, the defendant, Wayne Zolnier and another party guest named Shaun Maiden, who all shared an interest in surfing. The group continued to socialise as they grew older. Mr Wood did not regard the plaintiff as part of that group because of the gap in age between the plaintiff and the members of the group.
22 The defendant, like Wayne Zolnier, was 41 years old at the time of the trial. He remembered meeting Wayne Zolnier about "when we first got our licences, you know – 17, 18". From that age he and Mr Zolnier went surfing together and later became involved in diving as well as socialising. The defendant said that he met the plaintiff through Wayne Zolnier quite some time after becoming friends with Mr Zolnier. As the defendant said with respect to the plaintiff:
"He is quite a bit younger than me so I would say when I was 24. Something like that, 25 … I probably would have seen him in the water quite a bit at first and then got to know him after that."
23 The defendant said his initial awareness of the plaintiff came through surfing and the defendant saw the plaintiff, who was apparently a very good surfer, at surfing competitions in the south. He said that he and the plaintiff had had friends in common and that is how he had "got to know him".
24 He said that he would see the plaintiff at social events such as birthday parties:
"… occasionally they used to have functions with the board riders and everybody was invited, it wasn't just you had to be a member of the club. Anybody was invited … there was also – there used to be a function at Christmas Eve at Ronnie Carlson's shop and things like that, that bobbed up. Sometimes I was there, sometimes Paul wasn't there and vice versa, well whatever."
25 In cross-examination the defendant agreed that the plaintiff was not a part of his "immediate group of friends". It was put to him that the plaintiff was not one of the sort of people that the defendant might have had a bit of "horse play" with, unlike his immediate group of friends, and he said "I can't recall any 'horse play' previously with Paul, no".
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26 That was how the defendant described his social relationship with the plaintiff. There was also a business connection between them because the defendant had previously acted as the plaintiff's accountant. He prepared tax returns for the plaintiff for two years prior to the accident, including setting up some family trusts and foreign investment.
27 The plaintiff said that he had never previously socialised with the defendant. He knew that the defendant was "good mates" with his cousin Wayne Zolnier. He described the extent of his connection with the defendant as using the defendant as his accountant on the plaintiff's brother's recommendation, and seeing the defendant at a funeral in October of 2006.
28 There are two reasons for setting out the evidence with respect to these personal relationships in some detail. The first is to consider whether there is something in the prior relationship between the plaintiff and defendant from which consent by the plaintiff to rough physical contact by the defendant might be implied. The second is to set out part of the basis for credibility findings made later in these reasons.
29 When he was younger, the plaintiff, like the defendant and some of the other guests at the party, had an interest in surfing. However, the plaintiff was only ever on the fringes of the group of 15 or so friends that included Wayne Zolnier and the defendant. Even on the defendant's evidence, any relationship between the defendant and the plaintiff amounted to no more than a slight acquaintance.
30 I find that there is nothing in the prior relationship from which consent to the kind of physical conduct initiated by the defendant at the party could be implied. That is, even on the defendant's evidence, there was nothing in the relationship of the plaintiff and defendant prior to the birthday party that could have led the defendant or any reasonable person to think that any rough or close physical contact would be welcomed by the plaintiff. Prior to the party the plaintiff and the defendant were obviously acquainted in the sense of each knowing who the other was, but there was no history of any substantial social relationship between them.
The party
31 Wayne Zolnier's 40th birthday party was held on a summer's evening and the following morning in the backyard of his home in Bunbury. The photographs tendered by the plaintiff as Exhibit 1 show the backyard of the Zolniers' home. The photographs show a moderately large and well maintained suburban house and backyard. The backyard is surrounded by
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- painted corrugated fencing to a height of about 5 feet. The lawn is well tended with a number of ornamental shrubs planted around the perimeter fencing. A large trampoline features prominently in the photographs of the backyard. A reasonable sized covered deck is tucked into a corner between what I was told was the original house and a two-storey extension.
32 Mr Zolnier's partner spent two days cooking and preparing for the party. There was evidence that there was an abundance of food provided from the beginning to the end of the party. The hosts provided alcoholic beverages for their guests. Mr Zolnier provided 18 cartons of two types of Cooper's Ale and a dozen bottles of wine. There was also evidence that some guests brought their own alcoholic beverages. In addition to the alcoholic beverages Mr Zolnier provided 48,600 millilitre bottles of water.
33 The morning after the party Mr Zolnier observed that, of the 18 cartons of beer that he had purchased, 12 were drunk by the guests, although there was "still quite a few half full left lying around". There was no evidence before me as to the volume of the bottles of beer or the alcohol content of the beer nor any evidence as to the number of bottles per carton. There was no evidence as to the size or alcohol content of the bottles of wine.
34 The party began at 7.30 pm. The first guests began to arrive then, including the defendant.
35 Mr Zolnier estimated that by 10.00 pm there were approximately 95 people at the party. The guests at the party included men and women. About 40 per cent of the guests were women who were wives or girlfriends of the male guests. After midnight the numbers began to dwindle, so that by 2.00 am there was about a dozen guests left, at least in the backyard area.
The plaintiff's behaviour at the party
36 The plaintiff spent the day of 6 January 2007 at work. He is a qualified welder and metal fabricator and he was then employed by Worsley Alumina. He arrived home just before 8.00 pm that day and he and his wife went to dinner at a restaurant in Bunbury with his in-laws. They arrived at the restaurant at about 8.30 pm and had dinner. Then the plaintiff and his wife went on to the party.
37 One of the issues that arises on the defendant's case is the extent to which the plaintiff and the defendant were respectively affected by
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- alcohol, particularly between midnight and 3.00 am. The plaintiff said in his evidence that he had nothing to drink during the course of dinner with his wife and her family. He said that because he was driving and knew that he was going on to the party later where he might have some drinks, and also because he was working the next day, he decided not to have any alcoholic beverages to drink with dinner.
38 On their way to the party the plaintiff and his wife stopped at a bottle shop and bought a six pack of pre-mixed rum and cola drinks. They arrived at the party at about 10.45 pm.
39 The plaintiff's wife left him at the party about midnight. The plaintiff said that between the time they arrived at the party, and the time that his wife left, he had two "stubbies" of the rum and cola drink. His wife, he said, had three of the drinks and they gave away the remaining rum and cola. He said that between the time his wife left, and the accident, he had no more than three "stubbies" of beer.
40 When they arrived at the party, the plaintiff and his wife spent about a half hour talking to friends inside the house. After half an hour, he went through the kitchen, out a sliding door and onto a deck in the backyard. He continued to socialise with other guests at the party. The plaintiff said that he did not engage in any "horse play" at the party in the nature of "nudging or wrestling with anybody". He said he did not he see anybody else engaging in "horse play", apart from a young Swedish visitor who will be referred to later. The term "horse play" was often used by counsel and questions were addressed to witnesses on the apparent assumption that the term would be commonly understood in the sense of rough, coarse or boisterous play.
41 The plaintiff saw the defendant at the party. The defendant claimed that during the party and prior to the plaintiff's injury he not only saw but spoke with the plaintiff. He gave evidence that he "believed" that he spoke to the plaintiff more than once, with respect to the plaintiff's hobby of free diving, and how long the plaintiff intended to stay at the party.
42 One matter that featured in the evidence in the context of alleged "horse play" was what came to be called the "soccer ball incident". The particulars to par 8 of the defence refer, as one of the matters said to demonstrate the plaintiff's consent to physical contact with the defendant, to the plaintiff kicking the soccer ball at the defendant "on a number occasions which was all part of light-hearted horse play".
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43 Between midnight and 1 o'clock the plaintiff went out to the backyard and walked down to the south-east corner of the garden which was a place that had been designated for the men to relieve themselves. As he walked back towards the other guests, while doing his fly up, he said that he saw a "kid's soccer ball" on the ground in front of him. Without thinking he kicked the ball along the ground. He said that the kick was not hard and it was not aimed intentionally at anyone. However, it travelled across the yard and hit the defendant on the back of the leg and rolled away. The plaintiff said that the defendant looked over his shoulder for two or three seconds and then looked back and continued his conversation with the group that he was standing near. There was no conversation between the plaintiff and the defendant at that point or, according to the plaintiff, at any time that night.
44 The defendant in giving evidence about the soccer ball incident described how the plaintiff kicked the ball:
"If I recall, it was definitely once, and I recall twice there was, and I think once he missed me and the other time it hit my body."
45 The defendant's evidence was that the soccer ball hit the upper part of his body. He was quick to concede that the ball was in fact a child's plastic ball of the type that you might find in a swimming pool. His evidence was that the blow was not heavy and that when it struck him he "might have actually laughed." It is not clear from the defendant's description of events what time is said to have elapsed between the kick that missed and the kick that did not.
46 Wayne Zolnier witnessed the soccer ball incident. His evidence was that he saw the plaintiff returning from his visit to the hibiscus bush in the corner of the garden and as he walked he kicked a soccer ball in his path. Mr Zolnier said the plaintiff kicked it "firmly" along the ground and hit the defendant "… in the back of the heel or calve region of his leg". The plaintiff, he said, was about 10 metres from the defendant when the ball was kicked. Mr Zolnier said that was the only time that he saw the plaintiff kick a soccer ball. Bradley Wood who gave evidence for the plaintiff spent most of the evening of the party in the backyard. He did not notice a soccer ball being kicked by anyone.
47 I prefer the evidence of the plaintiff and Wayne Zolnier to that of the defendant with respect to the "soccer ball incident". Accepting as the defendant conceded, that there was no force in the child's plastic ball
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- when it struck him, I find that the plaintiff kicked the ball just once and that the defendant was struck in the heel or calf of his leg.
48 Another matter relied on to demonstrate both the alleged consent of the plaintiff to physical contact with the defendant as well as the "good-hearted pushing and shoving or good-hearted horse play which involved physical contact of various kinds" was described in the defendant's outline of submissions as "friendly nudging by the plaintiff towards the defendant". The plaintiff denied any such contact with the defendant at the party.
49 The defendant described the "nudge" by the plaintiff in these terms:
"When I say 'nudge' it might have been a pat on the back or a slight little elbow but nothing – it was a – more a gesture of friendliness rather than a gesture of aggressiveness."
50 It is possible that there was unintended physical contact of that kind between the plaintiff and the defendant at some point when the party was perhaps more crowded. If it did happen, it is hardly surprising that the plaintiff would not even have been aware of it or remembered it, given its insignificance even on the defendant's evidence. It is significant however that in his evidence the defendant hesitated between describing the contact as either "a pat on the back or a slight little elbow". For that reason, and for the reasons that follow with respect to credibility generally, I accept the evidence of the plaintiff that there no such contact with the defendant. I also accept the plaintiff's evidence that he did not engage the defendant in conversation at the party.
Behaviour of the guests generally
51 Among the guests who used the backyard trampoline that night was a young man named Martin who was the cousin of Mr Zolnier's partner. Martin, a visitor from Sweden whose age was estimated to be about 21, was apparently the youngest person at the party. He was the one person that the plaintiff identified as being a guest at the party who appeared to be affected by alcohol. It seems that, at about midnight, Martin thought it would be a good idea to jump from the top of the 5 foot fence onto the trampoline. When he landed on the trampoline, whether from the effects of the consumption of alcohol, or unfamiliarity with the trampoline, or both, he apparently managed to drive his knees into his arms. Shortly after that he retired for the evening.
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52 Another event relied upon by the defendant in the context of boisterous behaviour was the fact that the police attended at one point in response to a noise complaint. As the photographs in Exhibit 1 show, the Zolnier house was part of an ordinary suburban neighbourhood with neighbours immediately adjacent. The party was a moderately large one and it went on both inside and outside the house. Recorded music was played. Mr Zolnier said in his evidence that at about 2 o'clock in the morning someone told him that the police were at the front of the house and so he went around to see them. The two police officers did not ask to come into the house but they said that there had been a noise complaint from a neighbour and asked if the music could be turned down. Mr Zolnier said that he did that immediately and the police never returned.
53 Another feature relied upon by the defendant, apparently to demonstrate either the degree of intoxication of the guests at the party or the extent to which they were taking part in "good-hearted horse play", was the fact that several of the guests at the party used the trampoline in the course of the evening and particularly towards the later part of the party in the early morning of Saturday 6 January. The evidence before me was that for something less than 10 minutes both Mr Wood and Mr Zolnier were jumping on the trampoline together. Mr Zolnier bounced on the trampoline alone for a time. There was also evidence that several other guests used the trampoline at least briefly.
54 It emerged from the evidence that both Mr Wood and Mr Zolnier had grown up with trampolines and as Mr Wood said he "grew up jumping on the trampoline with two people". Both Mr Wood and Mr Zolnier were asked in cross–examination to provide a reason for their behaviour given the hour and the fact that they had been drinking. Mr Wood said that he and Wayne Zolnier, "used to play on the trampoline as kids growing up and I jumped on the trampoline". Mr Zolnier on the other hand came as close as perhaps it is possible to explain such things. He said with respect to the trampoline, "it is there and I guess you might think you are younger than what you really are after a few beers …". Apart from the young guest Martin, there is no suggestion that any guests or Wayne Zolnier posed any risk either to themselves or any one at the party by their use of the trampoline.
55 The closest that any guest's behaviour came to what might be described as "horse play" was described by Gregory Laves. He said that at one point he saw the defendant and Shaun Maiden "kind of chest bumping into each other and pushing each other but there was no
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- aggression to it. It was more in a friendly gesture but they were pushing and bumping each other …".
Intoxication
56 I have previously referred to the defendant's contention that, because of the consumption of alcohol, all or most of the guests at the party suffered impaired judgment and inhibition. The result of that, it was alleged, was that there was boisterous behaviour and "horse play" by the guests at the party.
57 The defendant described the party in these terms:
"… the mood of the party was fantastic … there was a lot of old friends there. People who hadn't caught up for a while."
58 Other witnesses testified as to the animated conversation and the eagerness of old friends to reacquaint themselves at the party. As the defendant said, there was no sign of any animosity or aggression at all during the night.
59 It would hardly be surprising that on such an occasion there were people who drank to the point where they were showing signs of intoxication. No witness, including the defendant, identified the plaintiff as one of those people.
60 I find that over the course of the evening the plaintiff consumed two pre-mixed rum and cola drinks and up to three "stubbies" of beer. There is nothing in the evidence that would allow me to reach any conclusion about what the likely physiological or psychological result of that would be for the plaintiff or someone of his size. There is nothing in the evidence to contradict the plaintiff's own evidence that he was not affected by the alcohol that he had consumed. Nor would I find that the plaintiff's reflexive kick at a plastic ball in his path offered any proof of intoxication. I find that the plaintiff was not intoxicated by alcohol to such an extent that his capacity to exercise reasonable care and skill was impaired.
61 There were, however, several people at the party whose behaviour suggested that they had had too much to drink. The youngest guest at the party who decided to leap onto the trampoline from the fence may well have been one of those. In cross-examination Mr Laves was asked whether anyone at the party appeared affected by alcohol. He said that at 2.00 am there were a few such people and he named the defendant, Mark Roberts, and Shaun Maiden.
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62 Mr Wood arrived at the party at about 8.30 pm with his wife. He said that by 3.00 am he had had "close to a dozen beers". When cross-examined as to whether or not he felt affected by the beer that he had drunk he said:
"Yeah, of course. I mean I had had a few beers … as you would, you know; you feel good, I was happy, I was enjoying – I'd been speaking a lot that night to a lot of people. It wasn't like I was standing at the bar swilling beers; I'd been talking a lot during the course of the night. Caught up with some good friends …"
63 When asked if he thought that towards the end of the night he was slurring his words he answered, with apparent candour:
"Not particularly, no. I thought I was speaking, you know, okay. But I – you know what its like when – if you hadn't been drinking and you were watching everyone talking, you probably think they were, but I thought I was okay."
64 No matter what Mr Wood had drunk over the course of the evening, no other witness suggested that he was showing any signs of intoxication. His brief bounce on the trampoline showed, perhaps, a lessening of inhibition but he managed that act of coordination without incident. Further evidence of the degree of self-possession that he had even at that time of night can be seen in his reaction to the accident. As soon as he realised the plaintiff had been injured he went to wake the plaintiff's brother who was asleep in the house. Once an ambulance had been called he then checked the side of the house to ensure that it was clear for the ambulance. He saw that cars were moved and lights were turned on to accommodate the arrival of the ambulance.
65 Gregory Laves drank between four and six "stubbies" of beer in the seven hours that he was at the party. There is no evidence from which it would be possible to conclude that he was intoxicated. Wayne Zolnier said that over the course of the evening he had "in the order of eight beers … and there would have been a few waters in between as well". Again, there is no evidence from which I could conclude that, whatever the actual volume of alcohol that Mr Zolnier drank it had the effect of causing him to be intoxicated at any time at the party.
66 It can be safely assumed that towards the end of the evening there would have been guests with blood alcohol levels that would have made it illegal or unsafe for them to drive. The evidence however does not prove
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- the allegation made in the particulars to par 9 of the defence that "all or most" of the guests at the party had consumed alcohol to such an extent as to cause them to engage in pushing, shoving and other physical activity or that they were likely to use physical force less carefully than would otherwise be the case.
67 Whatever might be said about the effects of alcohol on other guests at the party, there is one guest who has admitted that the amount of alcohol that he consumed at the party made him less capable of making judgments. The matters pleaded and particularised in the defence concede that the defendant had consumed a large amount of alcohol in the course of the party, sufficient to impair judgment and inhibition and also that, because of the amount of alcohol that he had consumed, the defendant was likely to use physical force less carefully than would otherwise be the case. Counsel for the defendant properly accepted that the defence filed on behalf of the defendant admits those facts.
The plaintiff is injured
68 Towards 3.00 am in the morning the plaintiff decided he would leave the party. He was in the backyard waiting for his cousin to get off the trampoline so he could say goodbye. Bradley Wood had also been jumping on the trampoline. Mr Wood jumped off the trampoline before Zolnier. Mr Wood and the plaintiff then had a conversation for several minutes. Mr Wood invited the plaintiff to jump on the trampoline but the plaintiff declined.
69 A sketch plan of the backyard prepared by Bradley Wood was admitted by consent as Exhibit 2. While the plan makes no claim to be drawn to scale, a comparison to the plan of the photographs that have been provided as Exhibit 1 show that it appears to have a reasonable degree of accuracy. The trampoline appears with its northern side in line with the corner of the original house. There was a gap of a metre and a half or possibly two between the north-east corner of the deck and the south-west corner of the trampoline. The eastern end of the trampoline extends slightly beyond the side of the two-storey extension of the house. Shown on the plan, but not in the photographs, is the place where on the night of the party Mr Zolnier lit a fire in an old washing machine tub. The fire tub appears to have been placed at about the mid point of the southern side of the trampoline and about 1½ metres or perhaps 2 metres from the trampoline. The area around the trampoline was illuminated by a spotlight.
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70 The plaintiff's evidence was that, after talking to Mr Wood for some minutes, the two of them then walked into the south-east corner of the yard to relieve themselves. That area, which was around the south-east corner of the yard, was about 15 metres from the south-east corner of the trampoline. When he was finished the plaintiff then walked back to a point about 4 metres south-east of the north-west corner of the trampoline. He stood facing the trampoline waiting for his cousin to finish bouncing so that he could say goodbye. As he stood there waiting he was grabbed from behind in a bear-hug. He said that his feet were picked up off the ground an inch or two. The plaintiff tried to free his arms from the defendant's grip "because he was crushing me", but he could not. He said that:
"Next I was thrown to my right hand side where I landed on my side on the ground … I just was pretty winded and I decided that I was going to stay on the ground because I didn't feel like getting straight up, I had the sort of wind knocked out of my sail. And yes laid on the ground for a little while. Then I felt somebody pick me up and grab my jumper from my shoulders and started helping me up, and I assumed it was just someone helping me up. And after I was helped up I was grabbed around the shoulders again and my arms pinned. I remember looking down at the ground, because we were stooped over in a lent forward position. And then, yes, I've struggled a little bit, but then he took three or four steps in a direct motion towards the trampoline and towards Wayne Zolnier, and flung me."
71 The plaintiff said that the person who was holding him:
"… took steps in a forward motion quite quickly, and because I was lent over I was trying to get my footing but I couldn't because I was lent over and moving quite rapidly. I couldn't get my footing, and then he's followed through in a throwing motion directly at Wayne … Wayne was still on the trampoline bouncing and I sort of hit him in the back of the legs … after that I just remember laying on the trampoline, my whole body was just in intense pain, and I couldn't breathe. I just remember vividly having to concentrate on being able to breathe."
72 There is and was on 6 June 2007 a significant difference in the respective weight of the plaintiff and defendant. The plaintiff weighed approximately 75 kilograms and the defendant about 120 kilograms. The plaintiff's height was 175 centimetres or slightly less than 5 feet 9 inches
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- in the imperial measurement. The defendant gave his as "a fraction under 6 foot". As a metric measurement that would be 182 centimetres. Prior to his injury the plaintiff was very fit. The same claim could not be made for the defendant. The defendant would not be described as athletic looking and from his appearance in the witness box he was obviously overweight. However, at least from his appearance, no one would suspect that he was a weakling. To the contrary, he appeared quite robust.
73 The defendant's account of his contact with the plaintiff is quite similar to the plaintiff's account in a number of important respects.
74 The defendant described the accident in these terms:
"Paul was north-east of myself … probably 3 metres away from the trampoline in that vicinity, and I came up from behind and gave him a bear hug … put my arms around the upper part of his arms and if I remember rightly – well I held him for quite sometime and we – he struggled to get out … to move my arms and, that's how it went on."
75 The defendant was asked whether the plaintiff reacted "apart from the struggle" and the defendant said:
"I think we had a laugh about it because I held him for a little while. Yeah, it wasn't like I gave him a bear hug and then let go or he broke free. We held each other for a little while – well, I held him more … it was going on for quite sometime – well for a little while and I was concerned about two things really, me falling backwards and hanging on to him but also because at that stage I was a bit unaware of where the fire was, I was worried about falling back towards the fire. So we were struggling and wrestling, and so that didn't happen I flung one way and – I let him go one way and I went the other way, to really stop – the incident had gone on long enough."
76 As the last sentence of that answer shows and as was even more apparent when the evidence was given, the defendant began to describe the conclusion of the bear hug, "I flung one way", in terms similar to those used by the plaintiff and Bradley Wood. He checked himself, though not entirely successfully, by saying "I let him go one way and I went the other way". The difficulty with the latter part of that answer was that firstly on the defendant's own evidence he never in fact lost his balance, and secondly, the evidence of other witnesses shows that he did not apparently move away from the trampoline. On the defendant's evidence, the
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- incident started about 3 metres from the trampoline and on the plaintiff's evidence four metres away. As the plaintiff landed at Wayne Zolnier's feet the defendant was observed by Wood and Laves about 1 or 2 metres from the corner of the trampoline. The plaintiff did in fact "go one way" towards the trampoline but the defendant did not go "the other way".
77 The defendant then saw the plaintiff land on the trampoline and knock Wayne Zolnier's legs out from underneath him. He saw Wayne Zolnier fall on top of the plaintiff, falling onto the upper part of the plaintiff's neck.
78 In cross-examination, the defendant denied that after an initial bear hug he threw the plaintiff onto the ground before picking him up again. The defendant explained his reason for coming up behind the plaintiff and gripping him in a bear hug in this way:
"I think previously the friendly nudging. It was just a – I'd say it wasn't a – it was a friendly bear hug, yeah."
79 The defendant explained why he released the plaintiff when he did. The defendant was worried about falling back and injuring himself. He said that some years previously he had a fall backwards, and hit his head, and he remembered it as a painful experience.
80 The submissions filed on behalf of the defendant tend to emphasise the defendant's friendly intentions in commencing the bear hug, "which thereafter went horribly wrong". With respect, while the bear hug was unwelcome it was the "thereafter" that caused injury here. Had the defendant carefully released the plaintiff from the bear hug, taking the same care for the plaintiff's safety as he did for his own, it is highly unlikely that the plaintiff would have been injured. He did not.
81 Gregory Laves witnessed the collision on the trampoline between the plaintiff and Wayne Zolnier. Mr Laves arrived at the party at about 8.00 pm. Between that time and 3.00 am in the morning he had drunk between four and six stubbies of beer. Mr Laves had had some minor surgery in his back the day before, had some stitches, and the wound was still tender. For that reason he spent most of the evening with his back against a wall so that none of the other guests at the party inadvertently patted him on the back. At 3.00 am in the morning, he was standing with his back against the wall of the two-storey extension of the Zolnier house, near the place where eskies had been provided to keep drinks cold. He was looking across at the trampoline where Wayne Zolnier was bouncing. He was about 5 metres away from the trampoline. Mr Laves' recollection
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- was that the fire that is shown on Exhibit 2 was in fact somewhat further east than what is shown on Exhibit 2. That would tend to place the fire closer to the area where the plaintiff struggled to break free from the defendant's bear hug.
82 Mr Laves was watching Mr Zolnier on the trampoline. As Mr Laves said, Mr Zolnier:
"… was bouncing fairly high. Obviously it is his trampoline so he is quite good at it. I was just standing with my back to the wall looking north across the east end of the trampoline as Wayne was bouncing on it. And I have seen Paul D'Vorak go head first into the back of Wayne's thighs. And it was quite peculiar at the time because normally if you go head first into something you put your arms to brace yourself … I saw Paul D'Vorak go head first without the use of his arms to protect himself into the back of Wayne Zolnier's thighs. Wayne Zolnier then fell over Paul D'Vorak and there was a mass of arms and legs on the north-eastern corner of the trampoline."
83 Mr Laves said that as he watched the accident, "I glanced back, I've seen Simon Hiscox with his arms stretched out … towards the trampoline". The defendant, he said, was a couple of metres behind the trampoline at its eastern end. His arms were pointing towards the spot that the plaintiff had landed on the trampoline and the defendant was not moving backwards nor apparently off balance. Of course, on the defendant's own evidence, he was able to watch as the plaintiff landed on the trampoline underneath Wayne Zolnier.
84 Bradley Wood also witnessed the accident. As Mr Wood walked back from the corner of the garden where he had relieved himself he saw the plaintiff and the defendant:
"… in close proximity to the trampoline and they were, like, as though they were wrestling. Simon had his arms around Paul's upper body and it was only a couple of seconds that I've seen but Simon flung or threw Paul onto the trampoline".
85 In cross-examination, Mr Wood explained that the plaintiff and defendant "… appeared as though they were wrestling and for a couple of seconds there I seen them and then Paul was flung forward onto the trampoline". In cross-examination he was asked to explain what he meant by "wrestling" and he said:
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- "… Simon had his arm around Paul and they were stooped. It looked as though they were wrestling … I can't say more than I seen Simon with his arm around Paul's upper body. It appeared as though they were wrestling … Like it appeared as though he had his arm around Paul's – he had his arm around Paul's upper body and he has flung him onto the trampoline, pushed him, throwing, can't think of any other words at the moment."
86 He did not witness the plaintiff being thrown to the ground and picked up again. When pressed about the precise details of what he had observed Mr Wood said:
"I seen what I seen, like, a couple of seconds, and I was walking back from the party, and that's what I seen."
87 It appears from Mr Wood's oral testimony and the marks that he made on Exhibit 2 that he would have been about 10 metres away from where the "wrestling" took place.
88 Mr Wood admitted that on a prior occasion he had given a different description of the incident. Within two or three months of the accident Mr Wood was interviewed by an investigator for an insurance company. On that occasion he told the investigator that he saw the plaintiff and the defendant wrestling and both of them fall onto the trampoline. He told the investigator that the momentum of their wrestling carried them forward onto the trampoline.
89 Mr Wood said that he told the insurance investigator that because he was:
"… a bit concerned and I was worried that Simon wouldn't be covered by the insurance policy or the insurers and so I tried to soften what had happened …"
90 Mr Wood said that he:
" … was concerned that if Simon was seen to have been reckless or something in his actions that possibly that he wouldn't be covered by insurance. I was just worried and, yes, I didn't want to see Simon possibly lose his house and all of that from something that was just an accident."
91 Mr Wood said that after giving the investigator that version of events he spoke to the investigator again about a week later:
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- " … I mean, I was having trouble sleeping at night because I was worried that because I had slightly changed the truth, it could have an outcome what was going to happen to Paul. I explained that to (the investigator) and he was grateful for my truthfulness and that was about it, really."
92 At the hospital, following the accident, the defendant gave a version of the events leading to the plaintiff's accident that was somewhat different to his evidence at trial. As Mr Zolnier and the defendant and others were waiting at the hospital one of the attending doctors came to speak to them. The doctor asked the guests from the party if they could tell him what had happened to the plaintiff. Mr Zolnier said that after a delay of several seconds the defendant said:
"Well I can probably explain this better than Wayno … Paul had come towards me or basically he lunged towards me and I've redirected him or I have directed him towards the trampoline in that motion."
93 In the witness box, Mr Zolnier demonstrated the motion the defendant made to accompany this description, somewhat in the manner of a matador with his cape. Mr Zolnier's recollection of the events at the hospital was tested in cross-examination primarily to suggest that there may have been other matters discussed with the doctor at the hospital. However it was not sought to contradict Mr Zolnier as to the words that he attributed to the defendant on that morning.
94 The defendant gave evidence about the conversation with the doctor as well. According to the defendant what the doctor was primarily interested in, was what actually hit the plaintiff's back, or to put it another way, the actual mechanism of the injury. The defendant said in his evidence in chief that he told the doctor that the plaintiff was "basically flung onto the trampoline, and then Wayne fell on top of him". In cross-examination Mr Zolnier's account of the conversation at the hospital was put to the defendant:
"You remember he said that you told the doctor that, in effect, Paul had lunged at you and then you moved him aside towards the trampoline? - Yes. I do recall that conversation.
But he didn't lunge at you, did he? - No, he didn't.
But that's what you told the doctor? - Yes."
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95 The defendant denied that he was suggesting to the doctor that the plaintiff was himself to blame for his injury, with this elliptical explanation:
"… to say it's – it's Paul's fault – I – no. Whether it is his fault or not, whether he lunged at me. No; probably no. It just depends on – yeah, there wasn't much onus put on that part of the conversation."
96 However, no alternative reason or motive for explaining the accident as he did to the doctor, emerged in the evidence.
Credibility
97 It was submitted on behalf of the defendant that the plaintiff should not be accepted as a credible witness and that I should find that in critical respects the witnesses called by the plaintiff tailored aspects of their evidence to favour the plaintiff. The submission was made that if issues of credibility were resolved in that way then the plaintiff's action should fail. I do not accept that submission. For the reasons set out below, in my view even if the defendant's evidence were accepted the plaintiff must succeed.
98 I reach that conclusion because in my view the evidence does not establish either consent or voluntary assumption of risk on the part of the plaintiff to the defendant's bear hug and the conduct that followed. The defendant's evidence does at least tacitly accept that it was the defendant who propelled the plaintiff onto the trampoline, however the method of propulsion might be described. Consistently with that evidence, it was put to the plaintiff in cross-examination as part of the defendant's case that, in the course of struggling with the defendant, "the two of you started to move backwards … and that the person then let go and pushed you away and you fell onto the trampoline".
99 As counsel for the defendant accepted in closing submissions while the injury to the plaintiff's neck was not caused by the bear hug it obviously was a consequence of it.
100 In the event however, for the reasons set out below, I prefer the evidence of the plaintiff and the main witnesses called on his behalf to the evidence of the defendant. I accept the evidence of the plaintiff, Gregory Laves, Bradley Woods and Wayne Zolnier set out earlier in these reasons with respect to the behaviour of guests at the party and the circumstances leading to the plaintiff's injury. I make findings of fact
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- accordingly. For the avoidance of any uncertainty, where in these reasons I have referred to matters of fact without attributing them to any particular witness I have found each of those matters as a fact.
101 The main submission made by the defendant with respect to the credibility of the plaintiff was that his account of the incident commencing with the bear hug described a "violent and vicious attack" that was completely at odds with the otherwise happy and social atmosphere of the party. The submission was, in effect, that the plaintiff's version was inconsistent with the apparent logic of events and inconsistent to some extent with the observations of witnesses like Laves and Wood. I disagree.
102 First, it is not correct to characterise the plaintiff's description of the incident as a "sustained attack" as defendant's counsel did. There is no reason to expect that even on the plaintiff's account the event lasted for more than about 10 seconds. Secondly, on all of the evidence, the defendant's conduct as described by the plaintiff is at least as consistent with drunken stupidity as it is with conscious aggression. Finally, there is no significant inconsistency between the plaintiff's evidence and that of Laves and Wood who each saw at least a part of the incident described by the plaintiff.
103 Laves was watching Wayne Zolnier on the trampoline from about 5 metres away. Laves only became aware of the incident when he saw the plaintiff land on the trampoline and go head first into the back of Zolnier's legs. It was at that point that he turned and saw the defendant with his arms stretched out towards the trampoline a couple of metres away from its eastern end. Significantly Laves saw that the plaintiff made no effort to protect himself by putting up his arms. That helplessness on the plaintiff's part is consistent with the aftermath of the kind of assault described by the plaintiff in his evidence.
104 With respect to all of the witnesses called on behalf of the plaintiff, it was suggested that sympathy for the plaintiff's plight has led them to "some fudging of the truth", apparently with respect to matters such as the actual amount of intoxication of and boisterous behaviour by guests at the party. In my view it is most improbable that Mr Laves would be inclined to give false testimony against his "very good friend" the defendant. I was impressed by Mr Laves as a witness and I have no hesitation in accepting his evidence.
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105 Wood actually witnessed a bear hug. His recollection was that he saw only "a couple of seconds" of the struggle that ended with the plaintiff thrown onto the trampoline. In cross-examination it emerged that at the point that Wood saw the plaintiff and defendant they were both facing towards the trampoline and "slightly stooped" or "slightly crouching". That observation is consistent with the second part of the incident that the plaintiff described when he was " … stooped over in a lent forward position". It is correct that Wood did not witness the first part of the incident described by the plaintiff where he was pinned and then thrown to the ground. Nor did Wood describe "three or four quick steps toward the trampoline before the flinging". Wood simply described the end part of the defendant's man-handling of the plaintiff in this way:
"… he has flung him onto the trampoline, pushed him, throwing, can't think of any other words at the moment."
106 This was a dramatic incident that lasted a matter of seconds. There is nothing in the relatively minor differences between the description of events by the plaintiff, Laves and Wood that should not be accounted for by differences of perspective and the frailties of human perception and memory, particularly in the context of such an emotional event.
107 While the defendant relied on alleged discrepancies between Wood's evidence and the plaintiff's, Mr Wood's credibility was at the same time attacked on the basis of sympathy for the plaintiff's plight and the difference in the account that he originally provided to the insurance investigator. In this respect it was submitted that "… Wood's approach, when he thought there was no insurance, is informative". With respect, what prompted Mr Wood to "soften" his original account of the incident was sympathy for his friend, the defendant. It was a concern that he might compromise the defendant's insurance position that prompted a version of events that both parties agree is not true. Mr Wood's evidence was that, in effect, his conscience made him recant the untrue version after a week. He never signed a statement with the "softer" version. To the extent that such matters have weight I was favourably impressed by Mr Wood's demeanour. In giving evidence he came across as someone who, caught in a dispute between his friend the defendant and the cousin of his friend Wayne Zolnier, was doing his best to recount honestly what he saw and remembered.
108 Similarly I was favourably impressed by the manner in which the plaintiff gave evidence. On behalf of the defendant it was submitted that discrepancies between the manner in which the incident was described in
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- the statement of claim and plaintiff's submissions as compared with the plaintiff's oral testimony suggested some change of story or lack of candour. For example, in the defendant's submissions, attention was drawn to the allegation that par 2(ii) of the statement of claim where the first part of the incident is described as the defendant placing his "arm" (singular) around the plaintiff before throwing him head first to the ground. Whether the reference to an "arm" rather than "arms" represented a change in or departure from the plaintiff's instructions or typographical error was not explored in the plaintiff's cross-examination. That was also true of some of the suggested differences between the plaintiff's submissions and the evidence of various witnesses. In any event the discrepancies, if discrepancies they are, are not significant in my view.
109 One of the themes of the challenge to the plaintiff's credibility was a submission that the plaintiff was, in effect, "over-egging the pudding" because his description of a relatively aggressive attack was inconsistent with the otherwise happy mood of the party. On the defendant's evidence he grabbed the plaintiff from behind, without notice, in a bear hug sufficiently strong to pin the arms of the plaintiff to his side. He held the plaintiff until he decided the plaintiff should be released and then the defendant "… flung one way and – I let him go one way and I went the other way" with the result that the plaintiff is now a quadriplegic. While the defendant has said that his intentions were "friendly", with respect, one can readily understand why the plaintiff may have a different view of that.
110 The evidence of the defendant is of a different character.
111 Whilst I accept that the defendant did not intend that his physical contact with the plaintiff should end in injury to the plaintiff, the fact is it did. The presence or absence of contrition on the defendant's part is irrelevant to the plaintiff's cause of action. From the ordinary experience of life however, one would have expected that someone involved in an incident such as this would have felt some sense of responsibility or a degree of remorse or regret, even if they believed they were not morally or legally responsible for the plaintiff's injury.
112 By way of example it was apparent to me that Wayne Zolnier, who on any account was an innocent actor with respect to his cousin's injury, had an obvious degree of concern for his role in the accident. That was of course in circumstances where Mr Zolnier himself was struck from behind when the plaintiff was propelled into him so that Mr Zolnier could not possibly have avoided what happened to the plaintiff.
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113 By contrast the defendant's manner in giving evidence was off-hand verging on cheerful. There was, at least as it was expressed in the manner of his giving evidence, no apparent concern for his role in the events that led to the plaintiff's injury. I considered whether that demeanour was more likely to reflect some type of coping mechanism on the part of the defendant as opposed to a conscious effort to portray himself as blameless. Several matters however led me to conclude that the probability was the latter rather than the former.
114 The defendant's description of the events leading to the accident given to the doctor the morning that the plaintiff was injured is significant for two reasons. First, part of what the defendant told the doctor was patently untrue. The truth was that the defendant grabbed the defendant from behind without notice and put him into a bear hug before the plaintiff ended up on the trampoline. The defendant's claim that the plaintiff lunged at him and that the defendant merely redirected the plaintiff was both untrue and a transparent attempt to shift blame to the plaintiff for his own injury. There is no sensible reason for proffering that explanation and none was offered by the defendant in evidence. Secondly, the explanation to the doctor as to the plaintiff being "basically flung onto the trampoline", contains what appears to be an obvious element of the truth. In cross-examination, the defendant denied both that he given that answer in examination-in-chief and that he knew that in fact he had flung the plaintiff onto the trampoline.
115 Not only did the defendant say in his evidence-in-chief that he told the doctor that the plaintiff was "basically flung onto the trampoline", earlier in his evidence-in-chief he used a similar expression before checking himself and choosing a more neutral term "I let him go one way".
116 The defendant also appeared to struggle in giving evidence against an inclination to suggest that the plaintiff had some degree of control over the events that were occurring. Asked to describe the bear hug, the defendant said:
"… well I held him for quite some time and we – he struggled to get out the – to move my arms and, yes that's how it went on, yeah."
117 Asked about the plaintiff's reaction apart from struggling, the defendant said:
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- "I think we had a laugh about it, because I held him for a little while. … we held to each other – well I held him more."
118 The last sentence is a considerable understatement even as corrected. It was only the defendant who was doing any holding. With respect to the "laugh" it was never suggested to the plaintiff in cross-examination that his response to the defendant's conduct was to laugh. Rather, it was put to the plaintiff that he struggled to free himself.
119 In the circumstances I do not believe the defendant's evidence in cross-examination that he did not fling the plaintiff onto the trampoline. I accept the evidence of the plaintiff and Bradley Wood that the defendant did so, supported as it was by the evidence of Gregory Laves, and indeed by the defendant's own words to the doctor at Bunbury Hospital.
Consent to physical contact
120 While I accept the plaintiff's evidence as to the history of social contact between he and the defendant, there was little in the defendant's evidence that contradicted what the plaintiff said in any substantial way. In his evidence the defendant accepted that, whatever degree of social contact there had been between he and the plaintiff, there was no history of "horse play" with the plaintiff. It was for those reasons that I have found that there was nothing from which consent by the plaintiff to physical contact in the nature of "horse play" might objectively be implied. However it is apparent and I find, that the defendant did not subjectively believe otherwise.
121 As set out earlier in these reasons, I accept the plaintiff's evidence with respect to the extent of any contact between he and the defendant at the party on 5 and 6 June 2007. However, even if I had accepted the defendant's evidence, I would not have found that there was anything either in that alleged contact or in the behaviour of the guests at the party or the plaintiff's continued presence at the party, from which consent to the kind of trespass initiated by the defendant against the plaintiff might be implied. In any event, whatever his pleaded case, the sum total of the defendant's subjective motivation when asked why he grabbed the plaintiff in a bear hug was just, "the friendly nudging". This was what had been referred to earlier by the defendant in these terms:
"When I say 'nudge' it might have been a pat on the back or a slight little elbow but nothing – it was more a gesture of friendliness rather than a gesture of aggressiveness."
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122 Even if either of those things had actually occurred, the forceful seizing of the plaintiff from behind in a crushing bear hug and the conduct that followed was out of all proportion as a response.
123 The closing submissions for the defendant suggest:
"This matter needs to be considered in two stages. Firstly the events leading up to and including the bear hug 'which would not otherwise have been actionable'. Secondly the events immediately after the bear hug when, unfortunately, things went suddenly wrong in a freak accident. The injury to the neck was not directly caused by the bear hug, but was rather as a consequence of it."
124 In a sense this is correct. Certainly prior to the release from the bear hug the plaintiff suffered no lasting injury. It was the fact that, when the bear hug ended the plaintiff was propelled towards the trampoline where his cousin was bouncing, that led to his injury. But it was the defendant who initiated the contact and the defendant who determined how and when the bear hug would end. It was easily foreseeable that someone seized, as the plaintiff was, might struggle to be released. It was the defendant, when he felt concerned for his own safety, who determined where, when, and how the plaintiff would be released.
Voluntary assumption of risk
125 There is nothing in the evidence that would have led the plaintiff or any reasonable person to think that there was an obvious risk that guests at the party might be either seized from behind in a bear hug or flung or pushed onto a trampoline. Nor could it be said that the plaintiff exercised any free will or choice with respect to physical contact with the defendant.
Contributory negligence
126 The submission of the defendant here is that if the defendant is found liable in negligence, "then there should be a significant finding of contributory negligence against the plaintiff in relation to his conduct 'including his own consumption of alcohol' leading to the so called bear hug". On behalf of the defendant it was sought to rely on the provisions of s 5L of the Civil Liability Act 2002. That was opposed by senior counsel for the plaintiff on the basis that there was no express reference to s 5L pleaded in the defence. I find that the defendant is not prevented from relying on s 5L of the Civil Liability Act 2002 in the circumstances of this case. The issue of intoxication and contributory negligence were
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- both raised in the defence. While it is the case that specific reference was not made to s 5L in the defence, that section does not make the plaintiff's claim "not maintainable". Rather, s 5L has implications for the burden of proof where intoxication is raised in the context of contributory negligence.
127 There are two reasons however why s 5L has no application here. First, the evidence does not establish that on the balance of probabilities the plaintiff was intoxicated within the meaning given by s 5L. There is no evidence as to the precise volume of alcohol that he consumed, little evidence as to when it was consumed, and no medical or other expert evidence about the probable effects of whatever alcohol the plaintiff consumed over the course of the evening and morning. There is only the plaintiff's denial that he was adversely affected by what he had had to drink.
128 There is a second problem for the defendant, even if there was evidence of intoxication. The plaintiff would in my view readily establish that nothing in his conduct, including the alcohol that he had consumed, contributed in any way to the cause of his harm. He was standing minding his own business waiting to say goodbye to his host. The "soccer ball incident" had occurred about three hours before. In any event, as far as the defendant was concerned, that incident did not provoke the bear hug and what followed as some form of retribution. Once the plaintiff had been seized in the bear hug he was effectively powerless to control what happened.
129 The evidence did not establish any failure on the part of the plaintiff to take care for his own personal safety. It follows that in my view there was nothing in the conduct of the plaintiff that could be said to amount to some relevant failure to exercise care for his own personal safety. The plea of contributory negligence therefore fails.
Trespass
130 As I have found that the plaintiff did not consent to the physical contact by the defendant that began with the bear hug and ended with the plaintiff injured on the trampoline, it remains to be considered whether the plaintiff's injury could be described as a "direct" or "immediate" consequence of the defendant's trespass.
131 If the plaintiff had been thrown against a wall or into a piece of moving machinery, and had suffered his injury in that way, a contention that his injury was not a "direct" or "immediate" consequence of the
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- application of force by the defendant would be plainly untenable. In my view there is no practical difference between either of those positions and the way that the plaintiff suffered his injury here. He was flung onto a trampoline in circumstances where the person bouncing on the trampoline could not see what was going on. While Wayne Zolnier was unwittingly involved in his cousin's injury, it was the defendant who brought about that immediate result.
132 It remains to be seen whether there is any practical utility either in this case or generally in the historical distinction between trespass and negligence. As Windeyer J said in McHale v Watson (1964) 111 CLR 384 at 387:
"The distinction between trespass and case, important though it still is for some purposes, and great and perennial as its fascination seems to be for lawyers, has I think little practical consequence for adjudication upon the facts of this case."
133 Given my finding that the plaintiff has established negligence on the part of the defendant, and that the plaintiff's injury occurred without contributory negligence on his part, it is for all practical purposes unnecessary for me to join in the dispute as to whether trespass against the person has been subsumed into the law of negligence: cfPlatt v Nutt (1988) 12 NSWLR 231 and the reasons of Kirby P. In any event given that the legal argument directed at this point did so without reference to the Civil Liability Act 2002 and the arguable consequences of s 3A, s 5A, s 5B and s 5D it seems to me preferable not to offer an answer here.
134 I find for the plaintiff and I give judgment accordingly.
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