Hadaway v Robinson
[2010] NSWDC 188
•3 September 2010
CITATION: Hadaway v Robinson & Ors [2010] NSWDC 188 HEARING DATE(S): 25, 26, 27, 28, 29 May, 1, 2, 3, 4, 5 June, 28 July, 7 and 20 August 2009
JUDGMENT DATE:
3 September 2010JURISDICTION: Civil JUDGMENT OF: Levy SC DCJ DECISION: 1. Verdict and judgment for the plaintiff against the first defendant in the sum of $1,161,368;
2. Verdict and judgment for the plaintiff against the second defendant in the sum of $922,394;
3. Verdict and judgment for the plaintiff against the third defendant in the sum of $922,394;
4. Verdict and judgment for the cross-claimant against the cross-defendant in the sum of $645,675;
5. The defendants are to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;
6. The cross-defendant is to pay the costs of the cross-claimants on the ordinary basis unless otherwise ordered;
7. The exhibits may be returned;
8. Liberty to apply on 7 days notice if further orders are required.CATCHWORDS: TORTS – assault and battery – plaintiff assaulted on leaving licensed premises – whether assailant liable in damages for assault and battery – whether hotel owner and licensee are liable for antecedent breach of duty of care owed to plaintiff in respect of events occurring within licensed premises prior to assault and battery - DAMAGES – assessment of multiple heads of compensatory damages – entitlement of plaintiff to award of exemplary and aggravated damages – dual damages assessments – assessment of common law damages and assessment of damages under Civil Liability Act 2002 – jurisdiction for damages award – extended jurisdiction conferred by s 51(4) of District Court Act 1973. LEGISLATION CITED: Civil Liability Act 2002
District Court Act 1973
Employees Liability Act 1991CASES CITED: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48
Angel v Hawkesbury City Council [2008] NSWCA 130
Adelaide Stevedoring Co. Ltd v Forst [1940] HCA 45;(1940) 64 CLR 538
CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47
Golden Eagle International Trading Pty Ltd & Anor v Zhang & Anor [2007] HCA 15; (2007) 229 CLR 498
Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1
MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 567
March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 50
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254
Portelli v Tabriski Pty Limited & Ors [2009] NSWCA 17
Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd [2009] NSWCA 263
State of NSW v Ibbett [2005] NSWCA 445
State of NSW v Moss [2000] NSWCA 133
State of NSW v Riley [2003] NSWCA 208
Sretenovic v Reed [2009] 280
Strinic v Singh [2009] NSWCA 15
Uren v John Fairfax & Sons Pty Ltd
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442
Waverley Council v Ferreira [2005] NSWCA 418
Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485PARTIES: Graham Hadaway (Plaintiff)
Heath Robinson (First Defendant)
Cregan Hotel Management Pty Ltd (Second Defendant)
Lindsay Archibald (Third Defendant)FILE NUMBER(S): 4056 of 2007 COUNSEL: Mr BJ Gross QC with Mr H Dixon (Plaintiff)
Mr J Callaway (First Defendant)
Mr AB Parker (Second and Third Defendants)SOLICITORS: Carroll & O’Dea (Plaintiff)
Vomina Law (First Defendant)
Sparke Helmore (Second and Third Defendants)
JUDGMENT
Table of Contents
A. INTRODUCTION Nature of the case [1] – [2] Parties and procedural history [3] – [9] Liability issues for determination [10] Approach to analysis and complexity of credit issues [11] – [16] Assessed heads of damage [17] – [19] Summary of findings [20] – [23] B. ARRAY OF EVIDENCE Witnesses [24] – [25] Documentary evidence [26] C. LIABILITY Undisputed background facts [28] – [42] Plaintiff’s pre-injury background
[29] – [35] First defendant
[36] – [39] Second defendant
[40] Third defendant
[41] History between the parties
[42] Disputed peripheral matters of fact [43] – [83] 1. Friendship between plaintiff and first defendant
[48] – [52] 2. Living arrangements of plaintiff and defendant
[53] – [62] 3. First defendant’s prior employment at the hotel
[63] – [64] 4. Plaintiff’s pre-injury drinking habits
[65] – [68] 5. First defendant’s skills in martial arts
[69] – [71] 6. Plaintiff’s alleged skills as a pugilist
[72] – [74] 7. An incident at the hotel 1 month prior to the incident
[75] – [81] 8. Alleged practice of first and third defendants assaulting hotel customers
[82] 9. Closing time of nearby pizza shop
[83] Relevant events of 17 September 2004 [84] – [290] 1. Plaintiff’s presence in the bar at the hotel
[88] – [90] 2. First claimed incident - about 5.00pm
[91] – [117] 3. Second claimed incident - about 5.30pm
[118] – [138] 4. Events between 5.30pm and plaintiff leaving hotel at 9.30pm
[139] – [173] 5. Plaintiff leaves hotel
[174] – [176] 6. First defendant leaves hotel
[177] 7. Precursor to physical fight
[178] – [184] 8. The fight – versions by witnesses
[185] – [290] Mr Carroll’s evidence [291] – [312] Credit findings [313] – [394] Preliminary analysis
[314] – [321] Mr Drum
[322] – [324] Mr Militoni
[325] Mr Miller – events in hotel
[326] – [327] Conflicting versions of events of ejection of plaintiff
[328] – [329] Ejection of plaintiff from hotel
[330] – [331] Focus for credit analysis
[332] Mr and Mrs Black
[333] – [339] Mr Webb
[340] – [349] Mr Nelson
[350] – [359] Mr Archibald
[360] – [367] Mr Miller
[368] – [376] Mr Carroll
[377] – [384] Credibility of testimony of plaintiff and first defendant
[385] – [391] Conclusions on credit matters
[392] – [394] Determination of liability issues [395] – [515] Issue 1 : Whether plaintiff was unlawfully assaulted
[395] – [412] Issue 2 : Duty of care owed by second and third defendants
[413] – [431] Issue 3 : Breach of duty of care by second and third defendants
[432] – [473] Issue 4 : Causation
[474] – [484] Issue 5 : Alleged contributory negligence
[485] – [505] Issue 6 : Apportionment between defendants
[506] – [515] D. DAMAGES ISSUES Injuries suffered by plaintiff [516] – [521] Initial treatment of injuries [522] Subsequent treatment and rehabilitation [523] – [539] Medico-legal assessments [540] Assessments at request of plaintiff’s solicitor
[541] – [549]
Dr Millons
[541] – [544]
Dr Gertler
[545] – [546]
Dr Sun
[547] – [549] Assessments at request of defence solicitors
[550] – [555]
Professor Harris
[550] – [551]
Dr Westmore
[552.] – [555] Residual disabilities [556] – [561] Plaintiff’s probable life span [562] E. ASSESSMENT OF CLAIMED HEADS OF DAMAGE Non-economic loss/general damages [564] – [567] Interest on general damages [568] Past loss of earnings [569] – [574] Interest on past loss of earnings [575] Future loss of earning capacity [576] – [605] Past loss of superannuation [606] Future loss of superannuation [607] – [608] Future domestic assistance [609] – [617] Home handyman assistance [618] – [625] Future treatment [626] – [674] Past out-of-pocket expenses [675] – [676] Exemplary damages against first defendant [677] – [680] Aggravated damages against first defendant [681] – [683] Summary of assessments [684] Jurisdiction [685] – [686] F. DISPOSITION & ORDERS Disposition [687] Orders [688]
A. INTRODUCTION
Nature of case
1. The plaintiff, Graham Hadaway, claims he was assaulted, battered and injured by the first defendant, Heath Robinson, on the evening of Friday 17 September 2004 shortly after leaving the second defendant’s premises known as the Hoey Moey Hotel at Coffs Harbour, NSW. The plaintiff claims these events took place after he had been confronted by the first defendant on two earlier occasions that afternoon whilst they were still within the hotel premises. The plaintiff claims compensatory, exemplary and aggravated damages to be assessed against the first defendant according to common law principles.
2. The plaintiff also claims that his injuries were due to breach of duty of care on the part of the second defendant Cregan Hotel Management Pty Ltd, and the third defendant Lindsay Archibald, the licensee and manager of the hotel. The plaintiff claims damages against the second and third defendants to be assessed according to the framework required by the Civil Liability Act 2002.
Parties and procedural history
3. The plaintiff’s statement of claim was filed on 13 September 2007. Originally, four defendants were joined. Only the first three of those defendants remain in the proceedings.
4. The plaintiff, Graham Hadaway, was born in 1960. He was aged 44 years when injured. He was aged 49 years at the trial. Before his injuries, he worked in the building industry where he had obtained proficiencies and certificates in multiple and overlapping building trade skills. Since receiving his injuries he has not returned to his pre-injury employment.
5. The first defendant, Heath Robinson, was born in 1970. He was aged 34 years when the events occurred. He was aged 39 years at the trial. He was a person skilled in various forms of martial arts and related sports. He was on friendly terms with both the hotel staff and with the hotel security staff, having previously worked as a security guard at the hotel. Until several months before the events in question he had also been on friendly terms with the plaintiff. Their friendship had extended to sharing accommodation at a number of locations in the Coffs Harbour area until relations between them had soured over money issues several months before the incident in question.
6. The second defendant, Cregan Hotel Management Pty Ltd, is and was at the relevant time the owner of licensed premises known as the Hoey Moey Hotel situated at Ocean Beach Parade in Coffs Harbour, NSW. The second defendant deployed barmen and security guards to work at the hotel. The security guards were hired and supplied by Sydney Night Patrol & Enquiry Company Pty Ltd, the former fourth defendant to the proceedings. The security guards were allocated to work at the hotel on rostered shifts. The barmen working at the hotel were the direct employees of the second defendant.
7. The third defendant, Lindsay Archibald, was an employee of the second defendant and at the relevant time he was the licensee and manager of the Hoey Moey Hotel.
8. The second defendant has issued a cross-claim against the first defendant claiming contribution to any damages that may be found to be payable by the second and third defendants to the plaintiff.
9. Before the hearing the proceedings were discontinued against the fourth defendant, Sydney Night Patrol & Enquiry Company Pty Ltd. That discontinuance was on undisclosed terms. Similarly, a cross-claim brought by the second defendant against the fourth defendant was also discontinued on undisclosed terms.
Liability issues for determination
10. In addition to multiple factual issues that were dependent on credit findings, the following central liability issues arise for decision:
Issue 1 : Whether the first defendant Heath Robinson committed an unlawful assault and battery on the plaintiff. My findings on this issue are set out between paragraphs [375] to [412] of these reasons;
Issue 2 : Whether the second defendant Cregan Hotel Management Pty Ltd and its licensee, Mr Lindsay Archibald, the third defendant, owed a relevant duty of care to the plaintiff which incorporated an obligation to take reasonable care to prevent the plaintiff from being assaulted and injured by the first defendant after leaving the hotel premises. My findings on this issue are set out between paragraphs [413] to [431] of these reasons;
Issue 3 : Whether the second and third defendants were in breach of any duty of care they owed to the plaintiff. My findings on this issue are set out between paragraphs [432] to [473] of these reasons;
Issue 4 : Whether the harm suffered by the plaintiff was relevant caused by the actions or inactions of the defendants. My findings on this issue are set out between paragraphs [474] to [484] of these reasons;
Issue 5 : Whether there was contributory negligence on the part of the plaintiff. My findings on this issue are set out between paragraphs [485] to [505] of these reasons;
Issue 6 : Apportionment of responsibility between defendants for any damages due to the plaintiff. My findings on this issue are set out between paragraphs [506] to [515] of these reasons.
Approach to analysis and complexity of credit issues
11. The length of these reasons for judgment is a function of the range, the array and the inter-relationship of numerous matters of disputed fact that were raised in evidence and which involved credit issues between the parties and the witnesses. Those credibility issues are analysed at [313] – [394] of my reasons following my review of the evidence.
12. It has been necessary to consider the assessment of damages according to two different assessment frameworks, namely the common law on the one hand and the requirements of the Civil Liability Act 2002 on the other.
13. Before addressing the 6 central liability issues outlined above it is necessary to resolve the relevant credit issues that emerged from the testimony of witnesses concerning multiple issues, both on the critical events as well as on a number of peripheral issues. This is because of the wide-ranging nature and number of credit issues raised in the evidence.
14. Witnesses gave differing accounts of the critical events. The pivotal credit question in the proceedings is whether the plaintiff’s version of the events leading up to and surrounding the occurrence of his injuries, should be accepted. The defendants disputed the plaintiff’s version of events and contended that the plaintiff should not be believed as to his evidence concerning those events.
15. The defendants and witnesses called by the defendants sought to discredit the plaintiff by reference to a number of peripheral and background issues. The determination of credit issues therefore requires a careful review and assessment of the evidence of all the witnesses who gave evidence touching upon the events in question. This has necessitated that I undertake a detailed examination of both the peripheral and the critical issues. I have summarised the ambit and detail of the disputed topics of evidence on these matters as the foundation for making credit findings, this being the essential precursor to resolving the 6 central issues on the question of liability.
16. The plaintiff contended that the witnesses who gave evidence against him were actuated by an attitude of ill-will towards him and consequently it was submitted that they should not be believed on any of the crucial matters in issue between the parties. Insofar as it was necessary to ascribe a motive for this attitude, the plaintiff submitted it had its genesis in the personal loyalty those witnesses had to the first defendant, as well as antipathy towards him. The plaintiff also contended that some of those witnesses also had an interest in avoiding or deflecting from themselves the opprobrium that might come from potential findings concerning some of the factual allegations in the litigation.
Assessed heads of damage
17. On a common law assessment of damages in the claim against the first defendant, a total of thirteen claimed heads of damage required assessment, including compensatory, aggravated and exemplary damages as listed in paragraph 19(a) to (m) below.
18. On an assessment of damages against the second and third defendants according to the framework of the Civil Liability Act 2002, a total of eleven claimed heads of damage required assessment. These are listed in paragraph 19(a) to (k) below, with the exception of (b) and (d).
19. The heads of damage claimed by the plaintiff are listed below together with references to the paragraph locations in these reasons where those assessments are dealt with:
Head of Damage
Paragraphs (a) Non-economic loss / General damages [564] - [567] (b) Interest on past non-economic loss [568] (c) Past loss of earnings [569] - [574] (d) Interest on past loss of earnings [575] (e) Future loss of earning capacity [576] - [605] (f) Past loss of superannuation [606] (g) Future loss of superannuation [607] - [608] (h) Future domestic assistance [609] - [617] (i) Home handyman assistance [618] - [625] (j) Future treatment [626] - [674] (k) Past out-of-pocket expenses [675] - [676] (l) Exemplary damages [677] - [680] (m) Aggravated damages [681] - [683]
Summary of findings
20. For the reasons I have set out in detail in this judgment, I have preferred and accepted the plaintiff’s version of events to the versions put forward by the defendants and the witnesses called by the defendants, I have found that the first defendant Heath Robinson brutally assaulted and battered the plaintiff as claimed. I have also found that the second and third defendants were in breach of the respective duties of care they owed to the plaintiff.
21. I have found that the plaintiff’s injuries were caused by both the assault and the battery committed by the first defendant, as well as by reason of breach of duty of care on the part of the second and third defendants. I have found that in the relevant events there was no contributory negligence on the part of the plaintiff. I have found that in addition to an entitlement to compensatory damages as against each defendant the plaintiff is also entitled to an award of exemplary and aggravated damages as against the first defendant.
22. I have assessed the plaintiff’s entitlement to damages according to common law principles, including compensatory, exemplary and aggravated damages in the sum of $1,161,368. I have assessed the plaintiff’s entitlement to damages according to the framework of the Civil Lability Act 2002 in the sum of $922,394. The plaintiff has submitted that he is entitled to a judgment in the expanded jurisdiction of the Court pursuant to s 51(4) of the District Court Act 1973. The defendants offered no demur to that submission.
23. On an apportionment of the damages between the defendants I find that the second and third defendants are entitled to contribution from the first defendant to the extent of seventy per cent of $922,394, namely $645,675.80.
B. ARRAY OF EVIDENCE
Witnesses
24. The following 11 witnesses gave oral evidence on the liability issues:
(a) The plaintiff, Graham Hadaway;
(b) Mr Joshua Drum, an acquaintance of the plaintiff who was present in the hotel earlier in the evening. He gave evidence concerning some earlier interchanges he said he had observed to have occurred between the first defendant and the plaintiff whilst they were in the hotel;
(c) Mr Michael Black, the proprietor of a nearby motel who said he was an eyewitness to the claimed assault on the plaintiff and to the immediate aftermath of the assault;
(e) Mr Richard Jennings, an expert security consultant retained by the plaintiff’s solicitor. Mr Jennings gave evidence on liability issues concerning the second and third defendants;(d) Mrs Kathleen Black, who, with her husband Michael Black, was the co-proprietor of a nearby motel. She said she was also an eyewitness to the assault;
(f) The first defendant, Heath Robinson denied assaulting the plaintiff;
(g) Mr James Carroll, a former friend of the plaintiff and a friend of the first defendant. He gave evidence of a conversation which he perceived to be an admission against interest allegedly made by the plaintiff concerning the event in question;
(h) Mr Daniel Miller, the bar manager formerly employed by the second defendant. His evidence was directed to events he said he had observed to have occurred within the hotel. His evidence was also directed to the work system within the hotel on the evening in question;
(j) Mr Ricky Nelson, a security guard who was on duty at the second defendant’s hotel on the night in question;(i) Mr Christopher Webb, who said he was an eye witness to the events. He was a friend of the first defendant;
(k) Mr Lindsay Archibald, the third defendant. His evidence concerned the hotel work system and his stated knowledge of the events;
Damages witnesses
25. In addition to evidence from the plaintiff, the following 5 witnesses gave evidence on damages issues:
(a) Miss Erica Hadaway, the plaintiff’s daughter;
(b) Mrs Glinis Dempsey, the plaintiff’s sister;
(c) Mr Mayer Berg, a friend of the plaintiff;
(e) Dr David Millons, an orthopaedic surgeon retained by the plaintiff’s solicitor. His evidence was directed to matters of diagnosis, prognosis and work fitness;(d) Mr Peter Badich, a friend of the plaintiff who had given the plaintiff an opportunity for a trial of work on a building site after his recuperation;
Documentary evidence
26. Various medical records were tendered relating to both the plaintiff and the first defendant. A number of statements, plans, photographs and some limited video footage were tendered concerning the events in question. In addition, there were reports tendered from the various treating and assessing medical and allied examiners.
C. LIABILITY
27. The nature and extent of the credit issues raised in the proceedings has made it both relevant and necessary to review and set out in some detail the background to the relationship of the parties. In this regard the conflicting bodies of evidence have been summarised before undertaking the task of dealing with credit challenges to enable a determination of the central issues that call for decision in the proceedings.
Undisputed background facts
28. There was no dispute over factual matters concerning the plaintiff’s background, the situation of the first defendant and the history of the relationship between the parties. I set these matters out in the ensuing paragraphs before setting out and summarising the disputed matters relating to the issues to be determined.
The plaintiff’s pre-injury background
29. The plaintiff grew up in Sydney and left school in Year 8 just before the age of 15 years without obtaining the school certificate. He described himself as being hopeless at school and this led to his decision to leave school early to find work. He said he did not read or write well. He initially obtained employment with the railways as a station assistant for two years. He then moved to Coffs Harbour to be near his brother who worked in the building industry. There, the plaintiff also obtained work in the building industry. He initially worked as a labourer and gradually began to accumulate trades-on-site experience and skills with formwork, carpentry, steel fixing, concreting, and painting. He also attended courses at TAFE and obtained qualifications in scaffolding and rigging.
30. The plaintiff enjoyed being able to do all the hands-on physical work that was required to be carried out on a building site. His pre-injury employment was described as foreman, leading-hand carpenter and concretor. He was employed in these capacities by a company known as AR & MEC Whalan Pty Ltd. He had been in steady employment in the building industry with that company and its predecessors for about 12 years before his injury. This work required him to be agile on his feet and to be able to clamber about on uneven ground as was common on building sites. His pre-injury working days were full. He earned between $800 and $900 per week gross depending upon whether or not he worked overtime.
31. Before his injury the plaintiff was physically fit and able-bodied. He had involved himself in outdoor sports and leisure activities such as ice-skating, motor-bike racing, swimming, rock and beach fishing. Before his injury he also used to train for physical fitness. He did this with his eldest daughter using a home gym punching bag and boxing pads.
32. Some 18 years before the incident the plaintiff had been involved in a motor vehicle accident. That accident had caused him to experience some neck and shoulder problems for which he occasionally took painkillers. He occasionally sought chiropractic adjustments to his back and neck when it got sore and tight. Over the last 18 years he estimated he had about 30 such episodes of such treatment. Other than having to take a week off from his work for neck problems about 12 years before the trial, the plaintiff said that the previous injury did not interfere with his ability to carry out the full duties of his pre-injury work.
33. The plaintiff’s personal circumstances were that he was divorced from his wife with whom he has three children. He was also estranged from his subsequent de-facto wife. The plaintiff has always worked, except for a relatively brief period of about 2 years during his marriage following the arrival of twins who had special needs, one of whom was disabled with cerebral palsy and the other by hydrocephalus. During that time the plaintiff was in receipt of a pension whilst he helped to care for the twins.
34. After his divorce the plaintiff remained living and working in the Coffs Harbour area but he no longer owned his own home. He lived in rental accommodation in various locations in the area. It was in this connection that the plaintiff met the first defendant.
35. Counsel for the plaintiff tendered and then reviewed with the plaintiff, the antecedents of his previous and relatively minor involvement with the police and the criminal courts system. It is not necessary to here recount the detail of that evidence although I will consider it when dealing with credit issues.
The first defendant
36. The first defendant, Heath Nikolas Robinson was born in 1970. He had a background of working in horticulture. He had worked as a security guard in the Coffs Harbour area. He was in receipt of workers’ compensation benefits at the time of the incident and at the time of the trial. He was aged 34 years at the time of the incident and was aged 39 years at the trial. Portions of his medical records were tendered in evidence. These records gave some insight into his state of health at the time of the incident. In the ensuing paragraphs I will review those records as it was suggested that they were relevant to determining some of the facts that were in dispute between the parties in the proceedings.
37. The first defendant’s medical records disclosed a background history of having been involved in multiple assaults, which included head injuries. One such assault, at age 19 years, involved him being hit on the head with an iron bar. This occurred whilst he was working as a security guard at the Heat Nightclub in Coffs Harbour. He had a fractured skull, jaw and had multiple teeth knocked out, along with other injuries. One of these head injuries has left him with post-traumatic epilepsy. His medical records show that in 2001 he had a left meniscectomy of the right knee for a medial meniscus tear. He was involved in various assaults in 2002 and 2003. He had a spondylitic neck condition that was diagnosed in 2003. He had a history of having a depressive anxiety disorder which was noted to have been present in October 2002. It appears from his medical records that he had also been the recipient of some professional counselling at some stage prior to the incident in question.
38. The first defendant was skilled and proficient in a number of martial arts and related sports. This included judo, Muay Thai kickboxing, karate and Tae Kwon Do for which he held a black belt grading. In 2001 and 2002 he had received a series of injuries in the course of his former employment as a security guard. Prior to receiving his injuries he had worked as a contracted security guard in the Coffs Harbour area and had in the past also carried out work as a security guard at the Hoey Moey Hotel. At the time of the incident in question he was on friendly terms with the hotel staff and with the security staff who were from time to time rostered on duty at the hotel.
39. In oral evidence the first defendant stated that his pre-incident head injuries had left him with frontal lobe brain damage. There was no medical evidence tendered to either corroborate or dispute that statement. A CT head scan taken at Coffs Harbour Hospital on 29 January 2008 did not disclose the presence of any brain abnormality in the first defendant however that does not necessarily exclude the presence of brain damage. In his oral evidence the first defendant made reference to having memory problems due to his previous head injuries. I accept his evidence that he has some brain damage as this seems plausible given the nature of the injuries he has described.
The second defendant
40. The second defendant company Cregan Hotel Management Pty Ltd has been the proprietor of the Hoey Moey Hotel, and other hotels, for many years. As the proprietor of the hotel the second defendant employed the third defendant as a licensee manager. The second defendant had contracted out to the fourth defendant the employment and deployment of security guards to manage the security arrangements at the hotel during trading hours.
The third defendant
41. The third defendant, Mr Lindsay Archibald, was employed by the second defendant as the licensee and manager of the Hoey Moey Hotel at the time of the incident, and for some time beforehand. At the time of the trial he had no current association with that hotel or with its proprietors. It appears he had been joined to these proceedings for a forensic purpose, as any potential personal liability on his part was covered by the provisions of s 3 of the Employees Liability Act 1991. It appears that he was joined to the proceedings by the plaintiff in order to render certain evidence of the events admissible as evidence in the proceedings.
History between the parties
42. The plaintiff and the first defendant had been acquainted with each other in the Coffs Harbour area for some years before the events in question and they had shared the financial obligations of their rental accommodation until interpersonal difficulties had arisen between them. Those circumstances led to a parting of the ways of friendship between them. In the evidence there was some controversy over the origin, nature and content of those difficulties, which I will consider in arriving at my credit findings.
Disputed peripheral matters of fact
43. There were many points of challenge made to the credit of the witnesses called to give evidence in the proceedings. In particular there were challenges to the credit of the plaintiff and the first defendant concerning the critical events. In addition there were some challenges of a peripheral nature which also had a bearing on credit, so for completeness, these require consideration in order to frame the context of the events in question.
44. The pivotal events concerned two events that occurred within the hotel premises in the late afternoon or early evening of 17 September 2004, and then subsequent events outside the hotel premises later that evening, by which the plaintiff came to be injured. Before analysing the disputed evidence concerning the pivotal events it is necessary to analyse and resolve the disputed assertions that concern the antecedent and peripheral events.
45. As between the plaintiff and Mr Robinson, those peripheral events concern the context of the friendship between the plaintiff and Mr Robinson, the disputed evidence concerning matters arising from their formerly shared living arrangements, the relationship between Mr Robinson and the Hoey Moey Hotel, the plaintiff’s drinking and personal habits, Mr Robinson’s martial arts skills and the plaintiff’s skills in pugilism, whether or not Mr Robinson had told the plaintiff of a practice he and the third defendant had participated in at the hotel which involved customers being assaulted and the closing time of a nearby pizza shop.
46. With regard to the Hoey Moey Hotel and Mr Archibald, those peripheral events concerned an alleged earlier incident at the hotel which had occurred about a month before the events in question, and included allegations that Mr Robinson and Mr Archibald used to assault hotel customers. Then there were the events at the hotel on the afternoon in question that occurred in the lead-up to the plaintiff being injured.
47. I have described these peripheral events as being numbered 1 – 9, and I set these out in the paragraphs that follow.
Peripheral issue 1 : Friendship between the plaintiff and the first defendant
48. The plaintiff claimed that in the past there had been a close relationship of friendship between himself and the first defendant. In aid of this view the plaintiff described a period where, during the time they lived at the same address, he had helped the first defendant out by looking after him, doing his washing, cooking and housework whilst the first defendant was recuperating from the physical effects of a work related injury.
49. Whatever state of friendship might have existed between them in the past, the first defendant made little acknowledgment of a past friendship. In his evidence he made a number of derogatory references to the plaintiff’s character and concerning his view of the manner in which the plaintiff conducted himself.
50. He stated that the plaintiff “doesn’t really [have] much morals, this bloke, and [he is] known for it.” He made remarks that had a tendency to belittle the plaintiff, stating the plaintiff had on a critical occasion been screaming “in a little girl’s voice” and behaving “totally psycho … like a child having a temper tantrum.” He referred to the plaintiff as being a hypocrite with regard to a disputed interchange between them. He claimed the plaintiff kept a supply of cannabis and claimed he had done the plaintiff a favour by “taking the rap” for possessing that cannabis and suggested things could have been worse for the plaintiff if the police had “found the big bag.”
51. He also claimed the plaintiff had been slandering him by saying he was a paedophile and had sold drugs to children. He claimed the plaintiff “was pretty well known for not telling the truth.” He also agreed that he had probably told people at the Hoey Moey hotel that the plaintiff was a thief. When cross-examined about the critical events in the proceedings, he made reference in his evidence to a rumour that the plaintiff had been reputedly under the influence of “ice”.
52. Within the first defendant’s evidence there was no vestigial hint of a past friendship between himself and the plaintiff. It was clear that by the time of the trial, whatever friendship may have existed between them, it was well and truly over.
Peripheral issue 2 : Disputed evidence over earlier living arrangements of plaintiff and first defendant
53. The plaintiff stated that in late 2003, and after having been acquainted with the first defendant for some time, he acceded to the first defendant’s request that he come to stay with the plaintiff for a few months at the house the plaintiff was renting. The plaintiff was living there with his daughter who was then preparing for the HSC examinations that she was planning to undertake in the following year.
54. The plaintiff stated that interpersonal problems arose in the course of them sharing accommodation. The plaintiff said that his daughter and the first defendant did not get on well and there was a dispute over rental monies owing. In those circumstances the plaintiff said he had asked the first defendant to leave the shared accommodation. The plaintiff’s daughter was called to give evidence but was not cross-examined to any contrary effect.
55. The plaintiff said that when the first defendant refused to leave the premises after being requested to do so, the plaintiff terminated the lease to force the issue. The plaintiff stated that the first defendant became upset at this and reacted by then causing considerable damage to the walls and fittings of the rented premises. In addition the plaintiff said that when the defendant left he took away a quantity of the plaintiff’s household goods, power tools as well as not paying his share of the rent, to the extent of some $1,200. The plaintiff claimed that when he subsequently tracked down and contacted the first defendant by telephone to discuss these issues he was verbally abused by the first defendant who then hung up the telephone and refused to speak to him further.
56. After the acrimonious parting of ways with the first defendant the plaintiff and his daughter moved into a rented apartment in a security building situated across the road from the Hoey Moey Hotel. The plaintiff said that after moving to live near the hotel he then frequented it occasionally as his local hotel.
57. The first defendant’s evidence portrayed a very different picture of the time when he lived at the plaintiff’s premises. The first defendant acknowledged that when he was living at the plaintiff’s premises he “drank a hell of a lot.” He said that he had a number of grand mal seizures in that period which he put down to dehydration following the consumption of alcohol in the context of his brain injury and taking anti-convulsant medication. Following one of these episodes the police were called because he was trying to enter a neighbouring house by mistake. On that occasion the police cautioned him as he had been smoking marijuana which he claimed belonged to the plaintiff. He later conceded he had used cannabis for the relief of pain.
58. The first defendant also claimed that during the time they shared accommodation there were occasions when he would give the plaintiff his share of the rent monies only to find later that the money had been gambled or otherwise spent without paying the rent. He also claimed the plaintiff was often quite aggressive and was prone to losing his temper over matters that had nothing to do with the first defendant.
59. The first defendant claimed he had set an honesty trap for the plaintiff by placing a $20 note in a shirt he had placed in a washing pile. He said of this “when I came home it was gone it was gone, so I knew he had taken it. I’d set a trap for him.” He claimed that when he confronted the plaintiff over this there was a “little fight” when the plaintiff attacked him, and then the plaintiff started to cry and profusely apologize over the matter. The plaintiff denied these assertions.
60. The first defendant also denied damaging the rented premises in the manner claimed by the plaintiff. Instead, he claimed that the plaintiff had kicked a hole in the wall in anger and had then asked him to be a false witness for a worker’s compensation claim to state he had seen the plaintiff injure his leg after hopping out of his work truck when such an event had not occurred, a request with which he stated he had refused to comply. The plaintiff denied these assertions.
61. The first defendant claimed that the reason he moved out of the accommodation he shared with the plaintiff concerned an episode when he found a syringe with a needle attached in the bathroom and which he assumed was heroin. He claimed that he confronted the plaintiff over this the following day. He said “We had a bit of a fight. I won that fight and I left the next day.” He stated that when he left he could not fit all of his belongings into his car and when he returned the next day to collect the larger items he found they had all been chopped up. He also claimed to have left behind two large cupboards and a large set of coin operated scales. He also claimed the entrance door couldn’t be opened because it was jammed on the occasion of that last visit to retrieve his belongings. He denied taking any of the plaintiff’s belongings and denied owing the plaintiff any rent or anything whatsoever.
62. Whatever the true facts were I find that these circumstances had led to a considerable degree of deep-seated mutual ill-will between the plaintiff and the first defendant.
Peripheral issue 3 : First defendant’s occasional prior employment at the Hoey Moey Hotel and his subsequent attendances there
63. The plaintiff stated he knew that previously, the first defendant had occasionally worked at the Hoey Moey Hotel as a security guard. The first defendant said he had not worked at the hotel for some years before the incident. The third defendant, Mr Archibald, also gave evidence to this effect.
64. The first defendant said that on occasion, around 2002, 2003 and 2004, he drank at the Hoey Moey Hotel, approximately once a week, or once every two weeks, after finishing work. He also stated that up until 2002 he had worked for the Hoey Moey Hotel as a security guard if they had a big band on, at which time he would run security for the big band. He stated that he knew the security people there as well as the licensee Mr Archibald, but added that this was just through work, not in a social setting. This history was relevant to an understanding of the evidence of Mr Archibald and the stance he took in the litigation.
Peripheral issue 4 : Plaintiff’s pre-injury drinking habits
65. The plaintiff described how, before his injury, after a day’s work it was his custom to bring home a 750 ml bottle of beer to consume with his evening meal but on Friday nights, after the week’s work was done, he would consume greater amounts of alcohol at hotels, including the Hoey Moey Hotel, and at times, he would do so to the point of intoxication.
66. The first defendant painted a different picture of the plaintiff’s drinking habits, as did other witnesses who were called by the defence. As to the events of the night in question the first defendant denied the plaintiff had said to him “I’m pissed and I don’t want to fight you” but he did later assert that at the scene of the fight in the street the plaintiff “was so intoxicated he couldn’t even stand up straight, and he kept falling over every time he tried to stand up.” In cross-examination the first defendant stated that whilst still at the hotel the plaintiff “seemed to be off his face.” Later in his evidence he stated that the reason he thought the plaintiff would not get up at the scene to fight him was “I thought he was too drunk and off his face.”
67. Mr Daniel Miller the former bar manager of the Hoey Moey Hotel gave evidence that the plaintiff was a frequent visitor to the hotel and not just on Friday nights. He said there were occasions on which the plaintiff had to be asked to leave the hotel because of his aggressive behaviour and intoxication.
68. The plaintiff’s pre-injury drinking habits were the subject of comment by medical experts whose opinions were tendered on damages issues. I will refer to this evidence in arriving at my damages findings.
Peripheral issue 5 : First defendant’s skills in martial arts
69. The plaintiff stated that over the course of the time that he had shared accommodation with the first defendant in three different houses, he had observed the first defendant’s proficiency at kickboxing. He said he had observed him training frequently with different kicking techniques, including side kicks, front kicks, sweep kicks and knee kicks capable of being delivered to any part of the body. He described the first defendant’s forte as being a strong kicker. He described observing the first defendant practice kickboxing techniques known as Muay Thai whereby persons could be knocked to the ground and laid on their back by having their legs kicked out from underneath them.
70. The first defendant confirmed that he had been trained in martial arts. He said he had a black belt in Tae Kwon Do. He said he also had experience in Muay Thai which is an extension form of Thai kickboxing. He differentiated between Tae Kwon Do, which he described as a martial art and Muay Thai, which he described as a sport. He described himself a counter-fighter.
71. He initially denied that there was a black singlet level of proficiency in that sport. He stated his training was an eclectic combination. He stated that he had taught self-defence to women and children at PCY clubs in Coffs Harbour. He stated that he has represented Queensland in Muay Thai championships in Thailand. He took issue with the cross-examiner over whether there was a coloured singlet grading system of awards in Muay Thai, and in the process of that discussion, he demonstrated a consummate familiarity with these and similar activities where singlet gradings were made. He maintained his denial that he had ever told the plaintiff that he held a black singlet status in Muay Thai. Whatever the position was with gradings, it was quite clear that Mr Robinson was very proficient in martial arts based self-defence activities that involved kicking manoeuvres.
Peripheral issue 6 : Plaintiff’s alleged skills as a pugilist
72. The first defendant claimed that on a number of occasions before the events in question, the plaintiff had represented himself to be an old style boxer. The plaintiff stated that before his injury it had been about 20 years since he had “thrown a punch in anger” although before his injury he stated that he did use a punching bag for fitness training.
73. The first defendant was asked questions about his discussions with the plaintiff concerning the plaintiff’s experience in boxing. In what I considered to be a self-aggrandising manner, he took the opportunity to denigrate the plaintiff by implying that the plaintiff had overstated his proficiency and experience in boxing. This is evident from the following extract from his evidence :
“Q. I'm going to come to the evening of this assault shortly, or the incident shortly. Prior to that, did you ever hear Mr Hadaway speak of or did he ever tell you about his ability as a boxer?
A. He used to tell me quite often that he was from the old school and he was a great old-school boxer. He'd tell me all the time. At first I thought he was - at first I believed him, when I first met him, but as I got to know him more and more it became more evident that it wasn't true, but he used to play it up all the time, and tell me how he'd bashed people and had fights with all these big blokes, and his old-school boxing skills would get him through every time.”
74. The first defendant also took the opportunity to convey the impression of being a superior fighter to the plaintiff, claiming to have beaten him and to have made him cry “like a girl”.
Peripheral issue 7 : An incident at the hotel one month prior to the incident
75. The plaintiff stated that in 2004, about three to four weeks before his injury, he was at the Hoey Moey Hotel when he claimed to have been involved in an incident at the hotel which also involved two security guards, one of whom was Mr Ricky Nelson who also gave evidence in these proceedings.
76. The way the plaintiff described the incident was that he was in the hotel having a drink in celebration of the birthday of an acquaintance. He described having reached a state of having consumed too much to drink at which time he was asked to leave by security guards. He said he responded by saying he would finish his drink and then go but instead he was then grabbed in a headlock by a security guard. He claimed Mr Ricky Nelson started punching him in the head as he was being dragged out of the bar, through the beer garden and then ejected from the hotel.
77. The plaintiff claimed that on this occasion his house keys were taken from him and then thrown into the beer garden by the security guard who then invited the plaintiff to go and get them. The plaintiff said that he refrained from retrieving his keys on that occasion because he apprehended that to do so would invite a physical confrontation which would have provided an excuse for being punched by these persons. Instead, the plaintiff stated that he told these persons that he would go and wake Mr Archibald, the third defendant who was the hotel manager. The plaintiff said that as he proceeded to walk to the back of the hotel to do so, he heard his keys hit the road and land in the gutter after being thrown from the direction of the hotel. He said that he then picked them up and went home. He stated that the next day he complained to Mr Archibald about the incident, and stated that following this, he received an apology from these security guards at the request of Mr Archibald.
78. In their evidence, Mr Archibald and Mr Nelson denied the plaintiff’s account of the described incident. Mr Archibald denied that the plaintiff had complained to him about being roughly treated by Mr Nelson and another security guard. He further denied telling Mr Nelson and another security guard to apologise to the plaintiff about their behaviour. He also denied having ever seen Mr Nelson behave violently towards a hotel patron at any time prior to the incident in question. Mr Archibald stated that prior to the events of the night of 17 September 2004, he had not had any dealings with the plaintiff.
79. Mr Nelson denied that there had ever been an occasion on which he had taken the plaintiff’s keys from him and thrown them into the hotel grounds. He also denied that there had been an occasion when he had been required to apologize to the plaintiff. When asked whether he had previously had an altercation with the plaintiff, where he held the plaintiff in a headlock he answered “No, not, wouldn’t know”.
80. Mr Nelson agreed that if there had been an occasion on which someone had been asked to leave the hotel for causing trouble this fact would be written up in the incident book kept at the hotel. He also said that if there had been an occasion on which the plaintiff had been barred from the hotel some weeks before the incident in question, he was not 100 per cent sure whether this would have been written up in the incident book, but he agreed that it could have been. The incident book was not tendered at the trial.
81. Whilst these matters were peripheral, they provided a background to the plaintiff’s history at the hotel and a possible explanation for Mr Nelson’s position in the litigation.
Peripheral issue 8 : Allegation that first and third defendants had a practice of assaulting hotel customers
82. The plaintiff claimed that at some stage whilst he and the first defendant were sharing accommodation, the first defendant had told him that he, the first defendant and the third defendant, whilst ejecting certain customers from the hotel, would on occasion take them out of the view of security cameras, and the first defendant would hold them whilst the third defendant “would deal with them”, a process which involved the third defendant punching these ejected customers. These assertions were denied by both Mr Robinson and Mr Archibald. Whilst this issue was of early peripheral relevance it was informative of the credibility tensions in the case.
Peripheral issue 9 : Closing time for a nearby pizza shop
83. The parties made an issue out of the closing time of the pizza shop that was near the hotel. This became an issue because of a dispute over the timing of relevant events. The first defendant referred to the pizza shop as generally closing at 8.30 to 9 o’clock as it was in a “pretty wild area.” The plaintiff claimed he was going to get a pizza as he was too affected by alcohol to cook a meal. In my view, the issue of whether the shop was open at that time of night is a remote peripheral issue. The plaintiff could still have intended to go to the pizza shop in the belief it was still open. In my view the issue had no significant bearing on the credit issues calling for decision.
Critical events of 17 September 2004
84. I now turn to the critical events of 17 September 2004.
85. Analysis of the evidence reveals that there were 8 events, that I will describe as critical events to distinguish them from the peripheral events, as having occurred on the afternoon and evening of 17 September 2004, and which required analysis. These events ranged from the events of the afternoon of 17 September 2004 before the plaintiff arrived at the hotel, to the plaintiff’s presence at the hotel, the first claimed incident between the plaintiff and the first defendant at about 5.00pm on that day, a second claimed incident between them at about 5.30pm, the events occurring between 5.30pm and about 9.30pm when the plaintiff left the hotel, the circumstances of the plaintiff leaving the hotel, the circumstances of the first defendant leaving the hotel, the precursor to the physical altercation between the plaintiff and the first defendant and the detail of the altercation between them. It is necessary to review and analyse these events as a precursor to making findings on the credit issues that arise, and before dealing with the liability and damages that are required to be determined.
Background events of the afternoon of 17 September 2004
86. The plaintiff stated that on the afternoon of 17 September 2004 he had finished his work at 2.30pm and had attended a monthly “tool box” meeting at his work place where the custom was to take to opportunity to vent with colleagues and the employer any matters of workplace concern. He said this custom would occur over the course of a few drinks at the work site.
87. The plaintiff stated that on this occasion, over the course of an hour or so, he had consumed about four or five stubbies which I infer from the description, to have been beer. The evidence did not indicate whether or not this was full strength beer. The plaintiff said that following this meeting he went home, showered and then went to the Hoey Moey Hotel, arriving there at about 4.30pm. The plaintiff said the Hoey Moey Hotel had become his local hotel after he had moved into the district some months earlier. He said that one of the attractions of the hotel for him was that it had what the plaintiff considered to be some good meat raffles on Fridays, and he said that on this occasion, he wanted to get there early enough to get some raffle tickets.
Critical event 1 : Plaintiff’s presence in the bar at the hotel
88. The plaintiff agreed that on the afternoon of Friday 17 September 2004, in addition to going to the Hoey Moey Hotel to participate in the Friday meat raffle, he also went there with the intention of remonstrating with the first defendant concerning the outstanding issues that remained between them, including money issues. He said he had not seen the first defendant since the alleged theft of his tools and since their parting on the occasion on which the plaintiff’s rented premises were damaged. The plaintiff stated that he arrived at the hotel he sat in the bar and drank beer. He said that in the course of the afternoon he had made a point of telling anyone who knew the first defendant and who was prepared to listen, that the first defendant was a thief who had ripped him off. Clearly, the plaintiff did so with the intention of embarrassing the first defendant amongst his friends, acquaintances and former co-employed security guards at the hotel.
89. The plaintiff described how, when he arrived at the hotel he sat in the main bar area and bought a beer, following which he sat down on a conventional bar stool at a high rectangular bench table. He said he was seated and had conversed with an employee of the hotel, a barman named Siosaia Militoni who was on a rest break from his duties. At this time the plaintiff also described the presence of Mr Danny Miller some 10 feet away behind the bar serving drinks. Mr Miller was the duty bar manager of the hotel on that night. The plaintiff said he also saw that an acquaintance, Mr Joshua Drum, was also present in the area.
90. The description of the subsequent events by the plaintiff, the first defendant and the other witnesses varied to some degree. This could have been due to the effects of alcohol consumption on the ability to reliably recall events, or the usual limitations on accurate recall over time, or credit issues, or a combination of these factors.
Critical event 2 : First claimed incident inside the hotel involving the plaintiff and the first defendant at about 5.00pm
Plaintiff’s account
91. The plaintiff stated that at about 5.00pm on the afternoon of 17 September 2004, whilst he was seated on a bar stool talking with Mr Militoni, he saw the first defendant enter the main bar area from the beer garden. He said the first defendant walked straight up to the side of the table where Mr Militoni was seated, leaned across the table and grabbed the plaintiff by the left side of the shirt collar with an aggressive lifting movement that involved the lifting of his shirt with a clenched fist, so as to bring the first defendant’s grabbing hand up into contact with the plaintiff’s face.
92. The plaintiff said that the first defendant then started to yell and scream at him words to the effect: “You fucking lying cunt. Let’s go outside and sort this out. … You’re a fucking liar. Come outside and we’ll sort this out, you prick” and other words to the same effect. With this, the plaintiff alleges that the first defendant then smacked him and tried to drag him off his seat towards the outside of the hotel. The plaintiff claims that during these events he said to the first defendant “Piss off, you thief, leave me alone.”
93. The plaintiff claims that these events occurred within the immediate presence of Mr Militoni and the more distant presence of Mr Miller. The plaintiff said he believed that this interchange was loud enough to be heard by the bar manager, Mr Miller. The plaintiff stated that at this stage Mr Miller, Mr Militoni, Mr Nelson and another unnamed security guard had rushed over and had managed to separate them. The plaintiff said that at this time, the first defendant variously addressed both the hotel staff and the plaintiff with words to the effect “Come on, throw us both out. You’re a fucking liar, come on outside, I’m going to punch your head in”. The plaintiff said the first defendant then addressed the hotel staff and security guards present by saying words to the effect “Come on, throw us both out so I can just punch his head in when we get outside”. The plaintiff described how Mr Militoni had then placed himself between the plaintiff and the first defendant whilst Mr Miller then came over from the bar and separated them, requesting that there be no fighting in the hotel.
94. The plaintiff said he responded by saying “Look, I don’t want to fight.” The plaintiff stated that the first defendant’s conversation was conducted in a very loud manner that he believed could be heard throughout the hotel. The plaintiff said the first defendant kept on calling him a “fucking liar” and the plaintiff kept on calling the first defendant a “fucking thief.” There had obviously been a joinder of issue on these matters and clearly, feelings were running high.
95. The plaintiff stated that the hotel staff who had intervened at this point, had said words to the effect : “Well, you’re going to have to be separated then.” The plaintiff said these intervenors then encouraged him to go to the bistro area of the hotel and he said he then obliged. The plaintiff said he was then asked by Mr Miller to go to the bistro area. The first defendant then walked over to the pool table area. The plaintiff stated that the first defendant then stayed in the main bar to maintain a distance of separation between them. The plaintiff said he remained in the hotel before leaving some hours later.
96. The plaintiff described how during the course of these events, the first defendant continued to verbally abuse him in a very angry manner, in the style and with the content previously cited. The apparent expectation of the hotel staff at that time, in arranging this separation of the parties, was to just let everything settle down.
97. The plaintiff described how, whilst he and the first defendant maintained this distance of separation, he was in the bistro area for about a further 20 minutes drinking with a few other people he knew. He described how he had looked through a gap in the partition between the bistro and main bar area and saw his acquaintance, Mr Drum.
657. In the absence of evidence of the likely total cost of such surgery I am nevertheless required to make an assessment of the reasonableness of this need : State of NSW v Moss [2000] NSWCA 133. I infer from the nature of the recommended surgery that it will involve hospital accommodation fees for a number of days, fees for a plastic surgeon, possibly an assistant to the surgeon, an anaesthetist as well as some other ancillary costs including dressings and after care. I consider that this treatment should be costed in the short term without being deferred because the need could arise at any time if, for example, the plaintiff bumped his leg inadvertently. Doing the best I can to be fair to both the plaintiff and to the defendants, I make an allowance of $5,000 for such skin grafting plastic surgery. Given that my assessment of this item assumes short term expenditure for skin grafting surgery I consider that there is no significant difference between an assessment of this cost to be made pursuant to the common law principles of assessment and an assessment made under the Civil Liability Act 2002.
Rehabilitation specialist
658. The report of Dr Sun has identified the need for the plaintiff to be referred to a rehabilitation specialist for the management of the need for physical rehabilitation and vocational rehabilitation. The defendants do not concede this claim. The basis of the contest over the claim for vocational rehabilitation is the 30 September 2008 opinion of Professor Harris who argues that recourse to such assistance may be considered necessary if the plaintiff has difficulty finding employment. In my view Professor Harris’ opinion is based on the wrong test. Professor Harris’s view is based on an experiential test of need whereas here I must consider the test of reasonable need due to injury. Accordingly, I prefer the opinion of Dr Sun to that of Professor Harris in connection with the claim for vocational rehabilitation.
659. I consider Dr Sun’s vocational rehabilitation recommendation to be reasonable in order to assist the plaintiff to prepare himself for re-entry into the workforce to enable him to maximally identify and exercise any residual earning capacity he may develop in the future.
660. I consider it reasonable to include an allowance for probable rehabilitation costs in assessing the plaintiff’s future treatment costs especially since my assessment of the plaintiff’s damages for future loss of earning capacity makes a significant allowance for a conceded residual earning capacity.
661. Whilst there is no evidence that provides the detail or the cost of the likely rehabilitation services, I infer from the terms of Dr Sun’s recommendation that it involves both rehabilitation and vocational disciplines, and this will involve more than just a few consultations within each such discipline.
662. There is no evidence of the likely cost for this claimed service. Doing the best I can to be fair to both the plaintiff and to the defendants, and on the same approach taken with regard to other uncosted treatment items, I make an allowance of $500 for the cost of future short term rehabilitation and vocational management over the ensuing year, noting that the assessment of damages for future impairment of earning capacity assumes an immediate offset for a residual earning capacity although that residual capacity has not yet been fully assessed or established.
663. Given that my assessment assumes short term expenditure for rehabilitation and vocational referral, I consider that there is no significant difference between an assessment made pursuant to common law assessment principles and an assessment under the Civil Liability Act 2002.
Hydrotherapy
664. The report of Dr Sun has identified the potential benefit to the plaintiff for him to have 12 months of access to hydrotherapy. The defendants do not concede this claim and rely upon the 30 September 2008 opinion of Professor Harris that disagrees with the recommendation for access to hydrotherapy and gymnasium equipment.
665. Professor Harris’ view is based on his 4 March 2008 assessment at which time he did not detect that the plaintiff walked with a limp. Professor Harris based his disagreement with Dr Sun’s recommendation on his own assessment that the plaintiff’s function was quite good.
666. In contrast, when Dr Sun examined the plaintiff on 28 July 2008 he noted the complaints of left foot cramps, restricted left ankle movements, difficulty walking on uneven surfaces, poor standing tolerance, difficulty kneeling and of leisure activities being affected.
667. When Dr Millons examined the plaintiff on 30 October 2007 he noted the plaintiff walked with a limp and favoured his left leg due to ankle stiffness.
668. In any event, the last medical examination disclosed that the plaintiff still walked with a limp which was also the evidence at the trial. In my view, all of these matters are relevant to an assessment of the functioning of the plaintiff’s left leg and in my view these complaints do not reasonably justify the description “quite good” as has been asserted. I therefore prefer the opinion of Dr Sun to that of Professor Harris with regard to the plaintiff’s claimed need for access to hydrotherapy and access to a gymnasium.
669. I consider the suggestion made by Dr Sun for access to hydrotherapy to be reasonable. I also consider the recommendation to be appropriately directed at maximising the potential for developing, exercising and maintaining the plaintiff’s residual earning capacity. I consider it is appropriate to make an allowance for this probable cost in the ensuing year to get the plaintiff started on a programme rather than projecting the cost over time. Given that my assessment assumes short term expenditure for hydrotherapy treatment I consider that there is no significant difference between an assessment made pursuant to common law assessment principles and an assessment under the Civil Liability Act 2002. Doing the best I can to be fair to both the plaintiff and to the defendants concerning this recommended expenditure, I make an allowance of $500 for the cost of access to hydrotherapy over the next 12 months.
Physiotherapy
670. The report of Dr Raju has identified the need for the plaintiff to have physiotherapy treatment. Dr Raju thought the plaintiff was in need of physiotherapy and rehabilitation to build up the strength of the lower left leg. Given that Dr Sun has recommended the plaintiff have hydrotherapy as well as access to a gymnasium, I do not consider it to be appropriate to make a separate allowance for physiotherapy treatment as it appears that these modalities will probably overlap with the recommendation for physiotherapy. In this regard I note that Dr Millons is of the view that the plaintiff does not require any formal physiotherapy and I accept that view.
Gymnasium access
671. The report of Dr Sun has identified the need for the plaintiff to have 12 months of access to gymnasium equipment. As with the hydrotherapy recommendation, I consider this suggestion to be reasonable and appropriate in the short term and to be directed at getting the plaintiff started on maximising his potential for developing and exercising any residual earning capacity he might develop. I have already outlined my reasons for this view in analysing the claim for access to hydrotherapy. Given that my assessment assumes short term expenditure for gymnasium access I consider that there is no significant difference between an assessment made pursuant to common law assessment principles and an assessment under the Civil Liability Act 2002. Doing the best I can to be fair to both the plaintiff and to the defendants concerning this recommended expenditure I make an allowance of $1,000 for the cost of access to gymnasium access over the next 2 years.
Summary of future treatment costs
672. My assessment of the plaintiff’s entitlement to damages for his reasonable future treatment needs is summarised in the following tabulation:
Treatment modality
[common law]
[Civil Liability Act 2002](a) General practitioner (b) Orthopaedic surgeon (c) Psychiatric treatment (d) Pain relief patches (e) Pathology (f) Antibiotics (g) Wound debridement surgery (h) Skin grafting plastic surgery (i) Rehabilitation (j) Hydrotherapy (k) Physiotherapy (l) Gymnasium access Total
673. On common law principles of assessment I assess the plaintiff’s damages for his probable future treatment needs and associated costs in the sum of $23,972.
674. Pursuant to the assessment framework of the Civil Liability Act 2002 I assess the plaintiff’s damages for his probable future treatment needs and associated costs in the sum of $22,773.
Past out-of-pocket expenses
675. The parties have reached a mathematical agreement that the plaintiff has incurred out-of-pocket expenses amounting to $1,988 but the defendants do not concede that these expenses were reasonably incurred as a result of the plaintiff’s injuries.
676. In order to resolve this issue I have considered the nature and extent of the plaintiff’s injuries and the extensive nature of the treatment received as has been described by the plaintiff and as is recorded in the clinical notes concerning his multiple hospital admissions and the medical reports that have been tendered in evidence. I infer from this evidence that the total amount claimed for out-of-pocket expenses seems quite modest and was reasonably incurred by the plaintiff and was in fact due to the effects of his injuries that required extensive medical and allied treatment, including multiple hospital admissions. I therefore assess the plaintiff’s damages for past out-of-pocket expenses in the sum of $1,988.
Exemplary damages against the first defendant
677. In assessing both exemplary and aggravated damages I am conscious of the fact that I have already assessed general compensatory damages. Exemplary and aggravated damages serve a different purpose and are therefore in a different conceptual category to general compensatory damages. I am also conscious of the need to avoid double counting in an assessment involving these elements of damages : State of NSW v Ibbett [2005] NSWCA 445 per Spigelman CJ at [83] to [89].
678. In my view the first defendant assaulted the plaintiff deliberately and in doing so did not act in self defence as he had claimed. In my view this should be construed as being conduct in conscious and contumelious disregard of the plaintiff’s rights such as to require a punitive but non-compensatory award of damages : Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1.
679. In my view the first defendant assaulted and battered the plaintiff without just cause and I view such conduct as action taken in obvious contumelious disregard of the plaintiff’s rights which calls for significant monetary censure.
680. In arriving at this assessment I have been conscious of the need to avoid overlapping of general compensatory damages and aggravated damages. Whilst minds may differ on the appropriate amounts for such awards, my assessment for exemplary damages is in the amount of $30,000 and I therefore assess the plaintiff’s entitlement to exemplary damages in the sum of $30,000.
Aggravated Damages against the first defendant
681. The purpose of aggravated damages is to compensate the plaintiff for the harm done to him by a wrongful act that was aggravated by the manner in which the harmful act was carried out : Uren v John Fairfax & Sons Pty Ltd [1996] HCA 40 per Windeyer J at [3]; (1966) 117 CLR 118.
682. In my view the first defendant assaulted and battered the plaintiff with the intention of causing him to suffer harm, and as such this conduct was an egregious and high-handed circumstance of indignity calling for an award of significant aggravated damages. In my view the first defendant’s conduct in assaulting the plaintiff in the manner he did was conduct that was well apart from ordinary human fallibility and justifies a significant assessment of aggravated damages towards the higher end of the range : State of NSW v Riley [2003] NSWCA 208 per Sheller JA at [131].
683. As in the case of exemplary damages, in making this assessment I have also been conscious of the need to avoid an overlapping of general compensatory damages, exemplary damages and aggravated damages. Whilst minds may differ on the appropriate amounts for such awards, my assessment for aggravated damages is in the sum of $50,000. I therefore assess the plaintiff’s entitlement to aggravated damages in the sum of $50,000.
Summary of damages assessments
684. My assessment of the plaintiff’s damages is summarised as follows:
Head of damage
[common law]
[Civil Liability Act 2002](a) Non economic loss (b) Interest - past general damages (c) Past loss of earnings (d) Interest - past loss of earnings (e) Future loss of earning capacity (f) Past loss of superannuation (g) Future loss of superannuation (h) Future domestic or attendant care (i) Home handyman assistance (j) Future treatment (k) Past out-of-pocket expenses (l) Exemplary damages (m) Aggravated damages Totals
Jurisdiction in respect of quantum assessed in excess of $750,000
685. During his opening address, Mr Gross QC indicated that the plaintiff’s claim for damages exceeded the jurisdictional limit of the court. However, in the absence of objection from the defendants in the preceding 3 months, the plaintiff’s submission was that pursuant to s 51(4) of the District Court Act 1973, the court had jurisdiction to enter judgment up to an amount that was 50 per cent in excess of the $750,000, which was the jurisdictional limit that otherwise applied to this case.
686. During closing submissions there was no demur to the position that had been outlined on behalf of the plaintiff. I therefore infer from these circumstances that the first defendant has acceded to the extended jurisdictional submissions advanced on behalf of the plaintiff so that in the case of the claim against the first defendant, judgment may be entered in the plaintiff’s favour in an amount in excess of $750,000.
E. DISPOSITION and ORDERS
Disposition
687. I have found that the first defendant assaulted and battered the plaintiff as claimed by the plaintiff and as a consequence the plaintiff’s entitlement to damages against the first defendant is assessed in the sum of $1,161,368. I have found that the second and third defendants were negligent and that such negligence was a material contributing cause of the plaintiff’s injuries, thus giving rise to the plaintiff’s entitlement to damages against these defendants. I have assessed the plaintiff’s entitlement to damages against the second and third defendants in the sum of $922,394. I find that on the cross-claim the second and third defendants are entitled to contribution from the first defendant to the extent of 70 per cent, or $645,675.
Orders
688. Accordingly, I make the following orders:
Regarding the respective claims
(a) Verdict and judgment for the plaintiff against the first defendant in the sum of $1,161,368;
(b) Verdict and judgment for the plaintiff against the second defendant in the sum of $922,394;
(d) Verdict and judgment for the cross-claimant against the cross-defendant in the sum of $645,675;(c) Verdict and judgment for the plaintiff against the third defendant in the sum of $922,394;
Regarding costs
(f) The cross-defendant is to pay the costs of the cross-claimants on the ordinary basis unless otherwise ordered;(e) The defendants are to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;
Regarding ancillary orders
(h) Liberty to apply on 7 days notice if further orders are required.(g) The exhibits may be returned;
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