Dean Cameron Smith v Cheeky Monkeys Restaurant

[2009] NSWDC 257

Reported Decision: 9 DCLR (NSW) 241

District Court

CITATION:	Dean Cameron Smith v Cheeky Monkeys Restaurant [2009] NSWDC 257
HEARING DATE(S):	13/8/09 - 14/8/09, 17/8/09 - 18/8/09
EX TEMPORE JUDGMENT DATE:	18 August 2009
JURISDICTION:	Civil
JUDGMENT OF:	Rolfe DCJ
DECISION:	See paragraph 76 and 77 of Judgment.
CATCHWORDS:	Plaintiff assaulted by Security Guard at Nightclub - Whether conduct was within scope of employment - Award of Damages at large - Award of exemplary damages against vicariously liable employer butnot against employee
LEGISLATION CITED:	Civil Liability Act (2002 )
CASES CITED:	Deatons Pty Limited v Flew (1949) 79 CLR 370 State of New South Wales v Lepore (2003) 212 CLR 511 McDonald v State of New South Wales (1999) NSW SC 350 New South Wales v Ibbett (2006) 231 ALR 485 Plenty v Dillon (1991) 171 CLR 635 at 645 Grey v Motor Accidents Commission (1998) 196 CLR 1 Uren v John Fairfax & Sons Pty Ltd (1966) 170 CLR 118 p 152 Zoran Enterprises v Zabow (2007) 71 NSW LR 354 Excel Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448
PARTIES:	Dean Cameron Smith (Plaintiff) Cheeky Monkeys Restaurant and Bar Pty Limited (1st Defendant) Brett Blaikie (2nd Defendant)
FILE NUMBER(S):	107/08
COUNSEL:	J Priestley (Plaintiff) L Brasel (1st Defendant) A Van Kempen (1st Defendant exemplary damages) G Hampson (2nd Defendant)

JUDGMENT

1 In these proceedings commenced by a Statement of Claim filed on 2 September 2008 the plaintiff claims damages against the first and second defendants arising out of an incident which took place in the early hours of the morning of 1 January 2007 at the restaurant and bar known as Cheeky Monkeys owned and operated by the first defendant at Byron Bay. The plaintiff alleges that the second defendant, Mr Blaikie, assaulted him and that the first defendant as the employer of Mr Blaikie is vicariously liable for Mr Blaikie’s acts. As against both defendants, the plaintiff claims compensatory damages including damages as of right and exemplary damages.

2 The plaintiff is currently employed as a mortgage broker. He is thirty-nine years of age. He left school in Year 10. Prior to the incident in question, the plaintiff was an active person in terms of sporting pursuits, including going to the gym, running and surfing. He was generally a person who kept himself fit.

3 When the plaintiff left school he did a greenkeepers apprenticeship and obtained a trade certificate in that area. However, the plaintiff did not pursue work as a greenkeeper. Instead, he worked in the hospitality industry for about six years after he finished his apprenticeship. Between 1995 and 2001 the plaintiff worked as a flight attendant for Ansett. After that, he went back to working in hotels. In 2003 the plaintiff travelled to New Zealand where he purchased a bed and breakfast business. He operated this business for three and a half years before returning to Australia in late November 2006.

4 At the time the incident occurred the plaintiff had been unemployed for a brief period of time. Shortly after the incident, in February 2007, the plaintiff did training as a mortgage broker and in March of that year commenced working on the Sunshine Coast as a mortgage broker. The plaintiff is still in that occupation.

5 I should add that, apart from out of pocket expenses and future medical expenses, the plaintiff does not bring a claim for economic loss against the defendants. Nevertheless I have gone to some length to set out his personal history because I think it demonstrates that prior to the incident he was a stable person in terms of his working activities and there is nothing in the medical evidence before the court which would suggest that he was not otherwise a person of sound mind and good health.

6 The incident was preceded by the plaintiff attending premises at Byron Bay on New Years Eve. They were premises either owned or occupied by friends of the plaintiff, Mr Willis and his partner Ms McFarland. There were other friends of Mr Willis and Ms McFarland there. The group was around ten people or so. They had a few drinks at this property. The plaintiff said he had his first drink at 8 o’clock and he drank about six to seven drinks up until the time of the incident. In cross-examination, the plaintiff corrected that to seven or eight drinks and I have come to the conclusion that I should accept the evidence given in cross-examination. Although he was vigorously cross-examined by counsel for both the first and second defendants I do not think that any inroads, if I could put it that way, were made on the plaintiff’s evidence certainly about that aspect of the matter. In any event, after having his first drink at the friends’ premises, the plaintiff went with the group of friends down to the beach where there was a festival. This was at 10 o’clock at night and I am satisfied on the evidence that it was an alcohol free zone and that the plaintiff did not consume any alcohol there. I have taken into account in particular Ms McFarland’s evidence about that.

7 At about 1am in the morning, the plaintiff and his friends decided to go to the first defendant’s premises. I will call it “the nightclub”. The plaintiff said that they were there for about an hour when he observed Mr Willis talking to a person who was collecting empty glasses and beer bottles. This person was not identified by name but conveniently he was referred to by the witnesses as a “glassy” and I will adopt that expression myself, albeit with some trepidation. Mr Smith said he saw the second defendant, Mr Blaikie, approach Mr Willis and the glassy and there was a discussion. However, this did not cause the plaintiff any consternation. The plaintiff saw Mr Blaikie shortly thereafter go outside to the foyer. The plaintiff said that Mr Willis remained in the club area.

8 The court and counsel have had the benefit of a view at Cheeky Monkeys. The area where the plaintiff and his friends were located could be accessed through a middle door which had a glass plate in it although visibility through that glass, according to the witnesses, was only just reasonable.

9 Mr Smith said that he saw Mr Willis go out to the foyer (which is a fairly small area) where Mr Willis appeared to be talking to another security guard. Mr Smith, the plaintiff, was not particularly focussed on this discussion. The next thing that occurred was that Mr Willis came back to re-join the group but he was closely followed by a security guard whom the plaintiff now knows to be Mr Eli Patch. Mr Patch has got blonde hair, broad shoulders and is a person of medium height and in his mid-20s. (I make those observations myself). Mr Smith said that as Mr Patch came through the doors another security guard came from inside the nightclub area and approached Mr Willis.

10 The plaintiff became concerned at this point saying it looked as though things were getting agitated and so he started to approach Mr Willis and the two security guards to find out what was going on. As he did so Mr Patch placed his hands on the plaintiff’s chest and he fell backwards over a bar stool. In any event, the plaintiff picked himself up and observed that Mr Patch and the other security guard had taken Mr Willis through the doors to the foyer. So the plaintiff followed them. As he did so, he saw Ms McFarland get pushed on to the wall in the foyer and observed that at this point he thought Mr Patch and two other security guards had hold of Mr Willis whose shirt was pulled up over his head and there was a scuffle taking place. He said that punches were being thrown, there was wrestling and it was a general melee.

11 The plaintiff said he went past Ms McFarland to assist Mr Willis. He described his action as attempting to intervene. He could not remember precisely what happened but he thought he had got himself in the way to assist Mr Willis. He was asked whether he had assaulted Mr Patch and he said he threw a punch, either a punch that connected or did not connect, but that belief was based on him not being able to remember precisely what occurred.

12 There was some CCTV footage in evidence. It was approximately 2 minutes of action in the foyer which has been played a number of times during the course of the hearing and I am satisfied on looking at that footage myself that there is no evidence on the footage of the plaintiff actually throwing a punch at Mr Patch or landing a punch on Mr Patch but I am satisfied he threw his left arm in the direction of Mr Patch without making contact.

13 I am not satisfied on the balance of probabilities that in fact the plaintiff was attempting to assault Mr Patch. Mr Patch did not remember anything about the incident and I do not accept Mr Blaikie’s version of what he saw.

14 The next thing the plaintiff said was that he remembered being on his back on the floor and looking up and seeing a security guard who kicked him on the right hand side of his head. This was Mr Blaikie, as was conceded in the evidence. After that occurred the plaintiff’s recollection was very hazy. He recalled locking Mr Blaikie’s legs to prevent Mr Blaikie from kicking him again and he said he was then put in a headlock. Although he thought he was conscious he was very groggy, frightened and scared and he was walked to the exit doors to the foyer area and released outside on the instruction of another security guard who appeared to be the head person.

15 The plaintiff said he remembered clearly being stomped on by a security guard because of the green fluoro shirts that they were wearing as evidenced on the video.

16 Once outside the nightclub he met up with Mr Willis. No one from the nightclub bothered to come out and see how he was. The group stood there for 5 minutes, one infers because they were all in a state of shock as a result of what had happened.

17 The police happened to come by and were informed about what had occurred and as a result the plaintiff and his friends subsequently went to Byron Bay Police Station. At that stage the plaintiff said his head was very sore and he was also sore around the arm and in the chest area. He said he made a formal complaint at the police station and returned to where they were staying at about 4 o’clock in the morning. He could not sleep and it took him about three hours to drop off as a result of which he slept for most of the day. As the policeman who had interviewed him, Officer Harris, had told him in the early hours of the morning to go back to the police station he did so at 10pm on New Year’s Day. On the way to the police station the plaintiff went to the local hospital.

18 The plaintiff was asked by his counsel in a shorthand way (and in the interests of keeping the case moving because there is really no significant issue about the plaintiff’s complaints and the evidence he gave about his injury), whether the material recorded by Mr Kotroni, a psychologist, in his first report being part of exhibit A dated 17 January 2008 was accurate and he said that that was the case. I will return to this aspect of the matter when I come to assess the plaintiff’s damages.

19 In cross-examination the plaintiff was asked about his consumption of alcohol and as I said earlier I have accepted his evidence that he had about seven to eight drinks of bourbon and coke. That would have meant that he was at least moderately affected and no doubt he was stirred up by alcohol when he saw what was happening to Mr Willis.

20 The plaintiff said that he could not recall approaching Mr Patch and that the incident happened very fast. He said the reason he approached Mr Patch was he was concerned about Mr Willis’ wellbeing and I accept that evidence particularly having regard to what one can see was happening to Mr Willis who, without ceremony, was being forcibly ejected from the nightclub.

21 The plaintiff was unsure whether it might have been Mr Lucic who was part of the group who may have fallen on him and left the imprint of a boot mark on the plaintiff’s chest area.

22 The plaintiff said that the reason he got involved in the incident was to try to introduce some calm into a situation that was in affect getting out of hand. In so far as he expressed the belief that Mr Blaikie stomped on him twice because he had a footprint on his shirt I am not satisfied that Mr Blaikie actually stomped on him a second time although he clearly stomped on the plaintiff once in a very vicious and nasty way and the blow was such that even from a layman’s point of view one would have to think that the plaintiff was lucky not to have sustained a more serious injury than the one inflicted on him, even though that in itself, as I will discuss when we come to the medical evidence, was quite a serious injury.

23 Ms Michelle McFarland gave evidence that the plaintiff is someone who is a distant friend, in effect. He is part of a group that Ms McFarland and Mr Willis have known for seven to eight years and during that time they have seen the plaintiff on perhaps three or four occasions socially. Ms McFarland’s evidence in so far as what the party did up until they went to the nightclub corroborated that of the plaintiff. I do not therefore need to go into it in detail. I was impressed by Ms McFarland. I think she gave her evidence in a straight forward way. She was not phased by being in the witness box or being cross-examined. I do not think she exaggerated what happened. Her recollection was not absolutely precise and one would be astonished if it was seeing the incident occurred a little while ago and that she was not the subject of any significant assault herself although she was pushed against a wall. Of all the witnesses who were actually on the spot I prefer her evidence in so far as there is a conflict between any evidence called by the defendant and I accept her evidence as accurate in so far as are there are any gaps in the plaintiff’s recollection as a result of what happened to him on the night.

24 Ms McFarland gave evidence that she and Mr Willis were standing together when the glassy removed a friend’s drink. Mr Willis complained about it because he said the drink was full. The glassy argued the toss about that, told Mr Willis it was out of his hands and he should go and see the security if he had a problem. So Mr Willis then went out to speak to the manager, that is say the security guard on the front door. One would have to infer in the circumstances that Mr Willis was fuelled by alcohol because first of all it was not his drink and secondly he overreacted and I say overreacted because the way in which he appears to have behaved whilst he was in the foyer demonstrates to my mind as an observer of the video that he was extremely irritated with what had occurred.

25 The evidence of Mr Patch is that Mr Willis spoke to him in a rude way and he did not say precisely what it was that was said to him. But it is ridiculous that a security guard should overreact to any sort of short sharp verbal swearing at such a person. That can only be expected in a job like that. Security guards should have broad shoulders, so to speak. Mr Patch did not, notwithstanding the fact that he is of a muscular build!

26 Ms McFarland said that no sooner had she and Mr Willis come back inside to the area where their group was congregating, that Mr Patch came towards Mr Willis. Three other bouncers appeared and grabbed hold of Mr Willis, pulled his shirt over his head in front of everybody and started shuffling him out of the club as a result of which he hit his head. Ms McFarland was shoved hard herself and hurt her shoulder. The fracas spilled over into the foyer and Mr Willis was knocked on to the floor. Ms McFarland said that at this point the plaintiff and another friend (referred to in the evidence as “Onda”) came into the foyer and the next thing Ms McFarland saw was a bouncer punch the plaintiff in the back and push him to the ground. She then saw Mr Blaikie stomp on the plaintiff with his boot. Ms McFarland then ran back to get help. She said she was terrified because the security guards had gone wild. Ms McFarland also gave evidence that she observed the boot print on the back of Mr Smith’s shirt but she was not sure how he had got that mark. She observed that he had a big bulging lump on the right hand side of his head which she described as a “big bleeding egg”.

27 Initially, the group stayed with the plaintiff outside the nightclub but then they all went back to Mr Willis’ place.

28 I accept Ms McFarland’s evidence that she had stopped drinking herself earlier in the day. She said one reason why she did not drink was that she had a migraine. I find that an exaggeration particularly as I observed her on the video smoking a cigarette whilst she was in the foyer. Nevertheless, I think she probably did have a headache. Having said that, because I accept her evidence that she had not had a drink for some time, I think she was relatively sober and in a position to give accurate evidence. In any event, her evidence is confirmed by what one can see on the video itself.

29 Both Ms McFarland and the plaintiff were asked questions to the effect that they may have gone out to the foyer in order to retaliate for what had happened to Mr Willis or themselves in the nightclub itself but I am not satisfied that that is what they did at all. I am satisfied the plaintiff went out into the foyer because he was concerned about Mr Willis’ welfare. Unfortunately for the plaintiff Mr Willis had acted stupidly and Mr Patch had overreacted and the plaintiff became the victim as a consequence of those two men starting the fracas which occurred.

30 Mr Rommel Emilio is the head of security at the nightclub and has been in that position for about five years. He holds a security licence and has been working in the security industry for sixteen years. He is responsible for supervision of security guards at the nightclub. He also does some administrative work. I consider Mr Emilio gave his evidence in a straight forward way but what it demonstrated to me was that he was an extraordinarily naïve person (putting it in his favour) or perhaps, more critical and closer to the point, he was not someone who fully appreciated what a supervisor should be doing. Mr Emilio did not demonstrate to my mind any interest whatsoever in the health of the plaintiff as a consequence of what occurred. He was much more interested in the wellbeing of his own employees. But being so interested one wonders why Mr Emilio did really very little to teach those under his employ how they should go about the business of being security guards.

31 Whilst it might be a retort to that proposition that as a matter of common sense they should have realised how to handle themselves, I do not accept that because the evidence is that this nightclub is a place which is open till 3am in the morning, that on this occasion there were between 200 to 300 people in the premises, that it is a very popular venue with backpackers and obviously young people. One cannot imagine, having seen the premises myself, that the baby boomer generation would have a great deal of interest in attending there, notwithstanding the fact that there are facilities to enable one to dance on the tables! The point is that the evidence shows alcohol plays a big part in the behaviour of people at the premises, there is a lot of loud music, and raucous behaviour is encouraged. If a nightclub is going to conduct itself on that basis it needs to ensure that steps are put in place to have adequate and properly trained security staff in attendance. That to my mind means that staff need to have been given proper instructions about how they were to behave, including practical demonstrations concerning the use of force - the evidence of all of the defendants witnesses was that they considered it appropriate to use force if necessary to eject patrons from the nightclub. That being so they should have been carefully advised about how to go about doing that and those matters should have been monitored. They were not.

32 There was no instruction guide given to any of the witnesses for the defendant who gave evidence about what they were to do in carrying out their duties. Belatedly, and much later in the piece, some time after the assault on the plaintiff occurred, a plan has been introduced but there is no real evidence of a satisfactory nature that the first defendant is taking its role as seriously as it should when it is running a venue where alcohol is available till the early hours of the morning and particularly on an occasion like New Years Eve there is every chance that people will drink more than they should. In these circumstances security people need to keep their wits about them and not overreact to verbal abuse. That is exactly what caused this incident to escalate to the point where the plaintiff was viciously assaulted.

33 Mr Emilio himself did not see the assault. He observed that Mr Patch had a cut above his nose and some bruising around his eyes but there was no suggestion by Mr Emilio that the plaintiff caused that to occur. Mr Emilio saw the CCTV footage almost immediately after the incident, observed Mr Blaikie assault the plaintiff but seems to have done very little about it. Mr Blaikie’s employment was terminated subsequently as a result of Mr Blaikie’s licence being withdrawn consequential upon charges being laid against him. That to my mind demonstrates that the nightclub had not learnt its lesson.

34 Just to recapitulate, and in summary, Mr Emilio did give evidence that security guards could use force. He said that preferably it should be equal force and I gathered from that he was referring to the way in which Mr Willis was dragged out of the premises. To be fair to Mr Emilio, he was not for a moment condoning the way in which Mr Blaikie assaulted the plaintiff. Mr Emilio also said in cross-examination to the plaintiff’s counsel that because he did not find out about the assault on the plaintiff for some hours after it occurred he did not bother to ask Mr Blaikie about what he had done to help the plaintiff and he conceded he was more concerned about Mr Patch’s wellbeing.

35 He also gave evidence that since the incident on 1 January 2007 there have been a couple of situations where it has been alleged that staff have assaulted patrons at the nightclub. There is a deal of uncertainty attaching to that evidence and so I do not intend to give it weight. But the inference I draw from what Mr Emilio has otherwise said is that very little has been done to tighten up procedures regarding security at the nightclub since this unfortunate incident occurred.

36 Mr Blaikie gave evidence that he had been working with the nightclub for two years before the incident occurred and prior to that he had done some security work at the Beach Hotel. He got his job at the nightclub through Mr Emilio who told him they were looking for more guards. Initially, Mr Blaikie worked part time, but he was working full time when the incident occurred. He said that when he got his security licence in about 2001 or 2002 he was given some information which was “theoretical” but that he received no practical training. His evidence was that although he was shown around the nightclub by Mr Emilio when he started working there he was not given any instructions. Specifically, he was not told anything about what to do when patrons were intoxicated or behaved in a violent way. He was not given any documentation nor was he asked to sign anything in connection with his duties. He said that he learnt on-the-job and that if there was what he described as a “removal” to occur, then the procedure was to call for backup. Before one got to the removal point the procedure was to talk first and encourage the patron to go to the front door. If the patron refused, the patron was to be given an explanation. If there was a further refusal then the patron should be walked to the door and if further refusal occurred violence could be used. Talk was not necessary if there was a brawl going on.

37 On the night in question no special instructions were given. There were four security guards on duty, two in the foyer area and two inside. The two inside were Mr Blaikie and Mr Patch. Mr Blaikie thought there were up to 400 people there that night. Some intoxicated patrons had already been removed prior to the incident. Mr Blaikie could not recall seeing the plaintiff personally but he remembered, a little inconsistently, seeing the group the plaintiff was in. Mr Blaikie said he was on the dance floor and got a radio call from Mr Divine, one of the security guards in the foyer, and he was called up to the foyer so he headed there. That is when he saw his colleagues shirts and the colleagues were rushing so he started to rush into the foyer. When he got into the foyer the plaintiff, who was in a white shirt, was in front of him but more importantly Mr Blaikie started to focus on what was occurring between Mr Divine and Mr Willis and he said he saw Mr Patch trying to push someone in a white shirt out the door.

38 Mr Blaikie claimed that he saw the plaintiff throw a left hook at Mr Patch. I do not accept this evidence. Everything happened in a rush. Mr Blaikie’s evidence to my mind demonstrated to me that he had put it together after the event and particularly after he had had the opportunity to look at the video and I think he was endeavouring to shift as much blame from himself on to the plaintiff as he could and so I think he was an untruthful witness when it came to what he alleged the plaintiff did as far as Mr Patch was concerned. So I do not accept that evidence.

39 However, I do accept his evidence that he reefed the plaintiff back and the plaintiff fell to the ground. I do not accept that he stomped on the plaintiff because he was fearful that the plaintiff would get up and hit him or Mr Patch. He said he realised straight away he should not have done what he did and in my assessment he did it out of anger and it was a callous way of dealing with someone who appeared to Mr Blaikie to be part of the fracas that was going on involving Mr Willis. Mr Blaikie sought to assert that he was acting in self defence and in defence of Mr Patch. I just do not accept that evidence.

40 There is no evidence that Mr Blaikie ever suggested on a prior occasion before coming to Court that he was acting in self defence. The first and second defendants were given leave at the commencement of the hearing to file amended defences asserting a defence of self defence in accordance with the provisions of the Civil Liability Act. I consider that this was an afterthought on the part of their legal advisers and whilst I have got no criticism of the legal advisers whatsoever in this regard, I am satisfied, as far as Mr Blaikie is concerned, that ideas of self defence and coming to the aid of Mr Patch were matters which only occurred to him recently and were inventions on his part and an attempt to ameliorate what might otherwise be perceived by him to be more trouble in the event that the court was to make a finding in favour of the plaintiff.

41 To demonstrate why I have reached these conclusions about Mr Blaikie I note for example in cross-examination when he was asked about what he saw concerning Mr Patch he actually conceded that he was not sure if he saw anything going on between the plaintiff and Mr Patch and to assert that the plaintiff could quite as easily have gotten up from the floor after he was stomped on was a ridiculous assertion, given the viciousness of the blow to the plaintiff’s head.

42 Mr Patch also gave evidence. He was an unimpressive witness. He did not want to be here. He made no effort to recall what occurred even though I take into account that his recollection may have been affected by being involved in the brawl and having suffered some injuries. The point is, Mr Patch appeared to me to make no effort in the witness box to answer any questions whether they were in-chief or in cross-examination and so he was an unimpressive witness and an unreliable one to boot.

43 Mr Patch said, without identifying Mr Willis, that someone came down and started arguing with him about a replacement drink and he told Mr Willis to go back into the club and as a result of Mr Willis coming back and saying something to him he said he asked Mr Willis to leave. Because this did not occur, he went inside to get Mr Willis out of the club. As I have said earlier, I regard his actions in this respect as a giant overreaction.

44 In conclusion, the evidence that Mr Patch gave confirms my assessment of the behaviour of the first defendant in terms of not providing any satisfactory or adequate training to the people who are involved in security at the nightclub.

45 I am therefore comfortably satisfied on all of the evidence that I have referred to that the plaintiff has established his claim of assault against Mr Blaikie. Such a finding is self evident.

46 The plaintiff is also entitled to succeed against the first defendant on the basis of vicarious liability.

47 Although Mr Brasel sought to rely on what was said by the High Court of Australia in Deatons Pty Limited v Flew (1949) 79 CLR 370 to the effect that what Mr Blaikie did was outside the scope of his employment, I do not accept that submission. If one looks at what was said by Gleeson CJ in State of New South Wales v Lepore (2003) 212 CLR 511 one will see that the Chief Justice referred to the formulation of the test in Salmond Law of Torts, first edition at p 83. The Chief Justice regarded that test as a starting point. At p 540 of the Commonwealth Law Reports the Chief Justice said:

“Where acts of physical violence are concerned the nature and seriousness of the criminal act may be relevant to a judgment as to whether it is to be regarded as a personal independent act of the perpetrator or whether it was within the scope of employment. A security guard at business premises who removes a person with unnecessary force may be acting in the course of employment. On the other hand extreme and unnecessary violence perhaps confined with other factors such as personal animosity towards the victim might lead to a conclusion that what is involved is an act of pure personal vindictiveness”.

48 In this case I am satisfied that there was no question of vindictiveness on the part of Mr Blaikie. Everything happened suddenly. What he was doing as far as the plaintiff was concerned in my assessment and I so find was that it was part of Mr Blaikie assisting the other guards in getting Mr Willis out of the nightclub premises and the plaintiff was caught up in that and was being dealt with accordingly. But as Mr Blaikie conceded he went too far. But clearly in my view what Mr Blaikie did was very closely connected with his duties as a security guard employed by the first defendant and I so find. Therefore, the plaintiff is entitled to recover damages against the first defendant as well.

49 The plaintiff claims compensatory damages, including damages at large, as well as exemplary damages.

50 In McDonald v State of New South Wales (1999) NSW SC 350, Grove J recognised that, in a claim for trespass to the person, damages are at large; so that in awarding general damages in a case of this sort, one is entitled to treat damages as being at large when making an award for compensatory damages.

51 The court is entitled to approach the matter on this basis, not only based on what Grove J said, but more importantly (with respect), on what the High Court had to say in New South Wales v Ibbett (2006) 231 ALR 485 referring to what was said in Plenty v Dillon (1991) 171 CLR 635 at 645. In the circumstances I am satisfied that I can award compensatory damages including damages at large as part of the plaintiff’s general damages because of the plaintiff’s entitlement not to have his person violated. That was a case of trespass to the plaintiff’s farm which gave rise to an entitlement of the plaintiff to receive damages in vindication of his right to exclude the defendants from his farm.

52 I just want to go back to the finding that I made and to make it clear that in doing so I have taken into account Mr Hampson’s careful written submissions that he made to the court in connection with the operation of ss 52 and 53 of the Civil Liability Act, in particular s 52 (2a). I did so because I have not accepted Mr Blaikie’s evidence about the matters relating to self defence. It follows that I am satisfied that the defendants have not made out a case of self defence within s 52 (2a) of the Act. This means that s 53 has no relevance to what I am dealing with.

53 I should add that the question of damages is not to be dealt with in the usual way under the Civil Liability Act because of the fact that the plaintiff’s claim arises out of an intentional tort. That is made clear by the provisions of s 3(b) of that Act.

54 The other element of the plaintiff’s claim is exemplary damages the purpose of which, as the High Court said in Grey v Motor Accidents Commission (1998) 196 CLR 1, “is to punish a defendant and serve one or more of the objects of punishment, moral retribution or deterrence”. The Court approved the dictum of Windeyer J in Uren v John Fairfax and Sons Pty Ltd (1966) 170 CLR 118 p 152. Of some assistance in the discussion is that their Honours referred to awards made in cases framed in negligence (this case not being such) in which the defendant can be shown to have acted consciously and in contumelious disregard of the rights of the plaintiff or persons in the position of the plaintiff. That comment is relevant because of the behaviour of the nightclub that I have already adverted to.

55 A question has arisen with regard to an award of exemplary damages as to whether the court can award those damages against the nightclub if it choses not to make an award of damages against Mr Blaikie. It is not my intention to award exemplary damages against Mr Blaikie. The reason I have come to this conclusion is that he has already been dealt with by the criminal law. He pleaded guilty and was given a suspended sentence. Despite the fact that I have not accepted important parts of his evidence I do accept his evidence that he realised as soon as he had stomped on the plaintiff’s head that that was the wrong thing to do and so in that respect I am satisfied he did demonstrate that he was sorry for what had occurred.

56 In any event, Mr Blaikie has lost his security guard’s licence. He will not be able to renew it for a period of ten years. He said that if he were to do that he would have to wait until he was forty years of age and that would be too late. That is important, because the evidence shows he was earning $600 net of tax in the position he occupied at the nightclub. After that it took him a while to get other employment. He started as a casual worker in a bottle shop and, although his hours have increased, as I understood his evidence, he is not working the sort of hours he worked in the nightclub. In my opinion this is punishment of itself.

57 That takes me back to the question I articulated a moment ago as to whether one could therefore award exemplary damages against the nightclub on the basis of its vicarious liability.

58 In Zoran Enterprises v Zabow (2007) 71 NSWLR 354, referring to the head note, the Court of Appeal said in that case that s 3B(1a) of the Civil Liability Act 2002 does not differentiate in its operation between direct and vicarious liability in respect of an intentional tort. Under the general law an employer does not escape liability by demonstrating that it did not have the intention of its employee. For the purposes of s 3B (1a), the employee’s act is that of the employer. So is the intention. To my way of thinking, that is a significant matter.

59 Moreover, having regard to what the High Court said in Excel Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448, in my opinion it follows (although the Court was there dealing with a slightly different set of circumstances) that in this day and age there is no reason why, in a case of vicarious liability, the Court cannot enter a judgment against an employer for a larger amount than is entered against the employee. I do not find myself being under any legal impediment in that regard.

60 I now turn to the assessment of the plaintiff’s damages. The plaintiff first of all saw his general practitioner, Dr Kumar, whose report of 9 April 2008 records the fact that the plaintiff saw him about the injuries sustained in the incident on four occasions in 2007 and complained about being kicked on the right eye. In the opinion of Dr Kumar, which is not disputed because of the x-ray material also in evidence, the plaintiff suffered a depressed fracture of the zygomatic arch. In layman’s terms, that arch is located approximately in the middle of a line between the corner of the right eye and where one’s side levers start next to one’s right ear.

61 The plaintiff’s evidence about this injury was that he is stuck with the problems that he experiences in that area. There is no suggestion on the evidence that anything more can be done surgically for the plaintiff to improve the problems that he has in that region. The plaintiff also said in evidence that he decided not to have anything more done to the fractured bone as he called it because he was advised it could get worse if he had surgery.

62 As Dr Kumar recorded, the plaintiff was getting headaches three to four days a week and this continued for quite some time. He still gets headaches but not as frequently as before.

63 The plaintiff gave evidence that for a period after the incident he had headaches three to four times per fortnight and on a scale of 1 to 10 the severity was 8 out of 10. He either put up with them for an hour and took some Panadol or Panadeine or something of that sort and went to bed. He said that, after eighteen months, the headaches subsided and he now only has one or two a fortnight, the severity of which he estimated at 6 out of 10.

64 In summary the plaintiff said that what happened to him psychologically after the incident was that he felt frightened, he had problems sleeping, he started to withdraw from social contact, he felt agitated and his concentration levels dropped. Those symptoms have subsided but he said he still avoids going to nightclubs, he is fearful when he thinks about nightclubs and the situation has not really changed for the last year.

65 There are other matters referred to in Mr Kotroni’s reports about this issue and I will now deal with that. In his first report of 17 January 2008 Mr Kotroni said that Mr Smith had seen him on 16 April 2007, 11 May 2007, 8 June 2007, 22 October 2007 and on 12 November 2007.

66 The plaintiff gave a history to Mr Kotroni consistent with the evidence that he has given in this case.

67 He complained to Mr Kotroni about anxiety, hyper vigilance, anger, relationship issues, fear, increasing sleep, lethargy, decreased motivation, less concentration and ability to focus, memory problems which affected his work, avoidance behaviour, fears about being bashed again, being nervous, shaky and jittery, and that he felt a different person after the assault, with some problems concerning decreased libido, and decreased emotional connection with people, experiencing intrusive thoughts, particularly about the actual assault itself, and generally being in a fearful state. They were the initial complaints but they essentially continued, including the complaints about the headaches that I have referred to.

68 Mr Kotroni has set out in the report the treatment that he gave, in terms of counselling, cognitive behaviour, therapy and other techniques, which it is not necessary for me to go into, because there is no contest about any of those matters on the medical evidence.

69 Mr Kotroni said that Mr Smith could continue to benefit from therapy and although Mr Smith stopped going to see Mr Kotroni and at one stage decided he did not want to have any more treatment, he did say in the witness box that if the opportunity was available he would have some more counselling. What I have deduced from not only the report that I have referred to, but the other reports of Mr Kotroni and indeed the defendant’s reports, is that this man presents to the medical practitioners as a straightforward person, he is not a person who exaggerates and he has given consistent histories to Mr Kotroni and the defendant’s doctor. Those matters coincide with my own assessment of the plaintiff in terms of the evidence that he gave in the witness box.

70 In the initial report of Mr Kotroni, he said that Mr Smith was suffering from post-traumatic stress disorder, in that he had symptoms of heightened arousal, intrusive symptoms and avoidance symptoms. They had disrupted every facet of his life in a negative way, although the symptoms had begun to decrease in intensity and frequency. At that point he thought the prognosis was good in the long term, but in his last report of 30 July 2009, he said that the plaintiff was still suffering from post traumatic stress disorder, that although those symptoms were of less frequency, intensity and duration, they were clearly chronic and had led to a permanent change in Mr Smith’s psyche and his experience of life. As a direct result of the assault, Mr Smith has and will continue to behave and think and feel differently to before the assault, in ways described in the report.

71 Dr John Chalk, who is a psychiatrist, assessed the plaintiff on behalf of the first defendant on 9 June 2009. My reading of that report is that it is unduly optimistic and puts more of a positive spin on the plaintiff’s actual circumstances than I believe to be the case. I prefer Mr Kotroni’s assessment of the plaintiff’s circumstances and his description of them, in terms of the matters that he is suffering from.

72 When it comes to the description of the plaintiff’s present condition, there is a difference between the two professionals. At the end of the day I do not consider that the description of itself makes much difference, because Dr Chalk concludes that the plaintiff has some elements of post traumatic stress disorder, but his diagnosis is somewhat more generalised and says a more appropriate diagnosis is of an adjustment disorder, with anxious and depressed mood. He agrees that the plaintiff’s condition has stabilised, but he accepts that the plaintiff has been left with residual symptoms of an adjustment disorder.

73 Taking the matters that I have referred to in exhibit A and exhibit 1 into account, as well as the plaintiff’s evidence about how the incident affected him, how he was traumatised, how he still has ongoing problems physically in terms of headaches and so on, as well as the various psychological symptoms that he has referred to and accepting that he is going to be stuck with some of these symptoms for the rest of his life or to put it as Mr Kotroni does, that with regard to these things, his state of health will remain chronic, I consider that an award of $80,000 for general damages is appropriate and that amount will be included in the verdict.

74 In terms of damages as of right, having regard to what the High Court said as set out earlier, and taking into account the invasion to the plaintiff’s privacy and person, I award $15,000.

75 The plaintiff claims $5300 for past and future out of pockets. It is not in dispute, given the findings I have already made, that that is an appropriate amount. Just for the record I should note, and in any event the documents are in evidence, that this amount is calculated with reference to $937 for past expenses and $3840 for expenses relating to Mr Kotroni and an allowance has been made for continual use of analgesics in the amount of $500, which I would have thought was a very low figure in itself.

76 Turning now to exemplary damages. As I have said, Mr Blaikie has already been punished so there will be no award against him. Having regard to the evidence that the first defendant did not train the security guards to do their jobs properly, having regard to the way in which this incident occurred, in terms of Mr Patch’s actions, having regard to the way in which the injuries were inflicted on the plaintiff and more importantly than all of those things, having particular regard to the nightclub’s failure to do anything after the event, to inquire into the health of the plaintiff, to do something to discipline Mr Blaikie and be content to let things run their course without properly investigating the matter, and to take no steps in my opinion of an adequate nature to ensure that these sort of things would not occur at the first defendant’s premises again, (given that it is the very sort of location where there could be trouble of this sort), the first defendant needs to be punished for those matters by an award of exemplary damages in order to deter it from letting these sort of things occur again. So I award exemplary damages against the first defendant in the amount of $15,000.

77 In the result, there will be a Verdict and Judgment for the plaintiff against the first defendant in the amount of $115,300. There will also be a Verdict and judgment for the plaintiff against the second defendant in the amount of $100,300.

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