Hayes v Woodcroft Tavern - [2008] SADC 20

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
HAYES v WOODCROFT TAVERN
[2008] SADC 20
Judgment of His Honour Judge Tilmouth
4 March 2008
TORTS - TRESPASS - TRESPASS TO THE PERSON - ACTION FOR DAMAGES
EVIDENCE - DOCUMENTARY EVIDENCE - STATUTORY PROVISIONS AS TO EVIDENCE - STATEMENTS IN DOCUMENTS WHERE DIRECT ORAL EVIDENCE ADMISSIBLE - ADMISSIBILITY AND RELEVANCY - RES GESTAE
DAMAGES - AGGRAVATED - EXEMPLARY - DAMAGES FOR LOSS OF CHANCE
The plaintiff sues for damages for an assault by elbowing to the jaw.
Held: An assault and battery was not proven on the facts. Elements of the tort of assault and battery discussed.
Admissibility of a police report as a "business record" within the meaning of s45A of the Evidence Act 1929 (SA) considered.
Admissibility of statements made by the plaintiff shortly after the event, under the res gestae exception, considered.
MWJ v R (2005) 222 ALR 436; (2005) 80 ALJR 329; Hillier v Lucas (2000) 81 SASR 451; O'Leary & Short v Lamb & Lensworth Finance Ltd (1973) 7 SASR 159; Vocisano v Vocisano (1973-1974) 130 CLR 267; Gray v Motor Accident Commission (1998) 196 CLR 1, applied.
Briginshaw v Briginshaw (1938) 60 CLR 336; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; (1992) 67 ALJR 170; Jones v Dunkel (1959) 101 CLR 298; Letang v Cooper [1965] 1 QB 232; R v Calabria (1982) 31 SASR 423; Medlin v State Government Insurance Commission (1994) 182 CLR 1; New South Wales v Ibbett (2006) 229 CLR 638, considered.

HAYES v WOODCROFT TAVERN
[2008] SADC 20
An overview of the proceedings

For upwards of fifteen years or more, Polish immigrant and plaintiff in these proceedings Jerry Hayes (“Mr Hayes”), held steady employment mostly in the transport industry. He long harboured aspirations of bettering himself, by obtaining more lucrative employment in the mining sector or as a truck driver.
He claims these hopes were shattered following injuries sustained when he fell into a glass refrigerator door in the bottle shop of the defendant (“Woodcroft Tavern”), late Saturday evening the 26 October 2002. The Tavern is located on the corner of Panatalinga and Bains Roads Woodcroft, a southern suburb of metropolitan Adelaide. It is one of eleven hotels owned by the R.D. Jones Group of Companies in South Australia.
There is no doubting the injuries sustained were in the nature of substantial cuts, or that he fell backwards striking the back of his head and shoulders. Just how this came about and the immediately preceding course of events, is very much in dispute. Mr Hayes claims to have arrived five minutes before midnight intending to purchase a bottle of gin, only to be told in no uncertain terms the bottle shop was closing and he would be refused service accordingly. He claims to have been deliberately struck to the jaw by the bottle shop’s manager in the presence of an attendant. It is conceded both were employees of the defendant, so no issue of vicarious liability arises.
The case for Mr Hayes is pitched under the general law of negligence and in trespass to the person, constituted by an assault. It includes a claim for aggravated and exemplary damages. Both parties are agreed these proceedings are to be determined according to the common law, as amendments to the Civil Liability Act 1936 (SA) came into force later on 1 December 2002.[1] They also agree special damages at $800.00. The defence consists of outright denials and contends for a different version of the events altogether. No pleas of contributory negligence or self-defence are raised. None were pursued by defence counsel during his closing address.
[1] Wrongs (Liability and Damages for Personal Injury) Amendment Act 2002, SA Government Gazette 28.11.02.
After receiving these injuries, whatever their cause, Mr Hayes returned to the home of his friend and witness, Roman Gruszka. Mr Gruszka was seated in Mr Hayes’ car, a Ford Falcon EL at the northern end of the driveway near a roller-door, as these events unfolded, events he did not see. They both returned on foot approximately thirty minutes afterwards, in order to telephone the police. At this time Mr Hayes was refused entry and directed to a nearby public telephone. These later events are not denied by the defendant, although certain words said to have been exchanged at this time, certainly are.
It is not disputed that at about 1.30am the next morning, Mr Hayes reported the incident to the Christies Beach Police Station. He gave a detailed statement to Senior Constable Paul Argent, consistent with his allegations. Although that statement was admitted into evidence as part of the police report, it has no other probative status and therefore plays no part in forming the findings made later in these reasons. It appears police took photographs of the shattered refrigerator door and his wife took others of the personal injuries sustained the following Monday and the following day respectively.[2]
[2] These are comprised in Exhibit P4.
It should be noted that police attended the bottle shop the following day or more likely the following Monday, around lunch time. Two officers called in again on 11 November 2002, Constables Thomas and Perry. They recommended no further action be taken for reasons otherwise irrelevant to this action. The critical issue for determination is the course of events in the bottle shop.
The evidence of the plaintiff
Mr Hayes deposed to being driven by Gruszka to the Tavern, arriving at 11.55pm. He remembers telling Gruszka to “hurry up” because it would be closing.[3] On arrival they parked at the northern end of the drive-in, or “drive-through” as it was sometimes called, two metres or so from the roller-door. Bollards were already in place on all accounts. He says the door was half-way shut or two metres from the ground at the time.[4] There were single doors at each end. The drive-in comprised two lanes in a north-south direction, enabling entry on the left-hand side for each direction of travel. Mr Hayes got out of the car and walked inside. Gruszka remained behind the wheel.
[3] Transcript P27 L30-L34.
[4] Transcript P27 L37- P28 L1.
Events inside commenced with a verbal exchange between Mr Hayes and the bottle shop attendant near the roller door towards the northern end. This must have been the defence witness Benjamin Cole who was in the process of closing the door. According to Hayes it proceeded: [5]
A.When I was already inside the bottle shop I mention to him that ‘Do you realise it is only five to midnight and’ I ask him how come he is closing and he said to me that ‘because we are closing’ and then I said again to him, and show him my watch, that it is only five to midnight, ‘you shouldn’t be closing’ and he said to me ‘that is my manager’s problem’.
Q.Did you say anything else to the bottle shop attendant apart from the discussion regarding closing.
A.I said to him ‘I want to buy a bottle of gin’. He said again he can’t serve me because they are closing.
Following this exchange Mr Hayes walked into the centre of the drive-in area near some tills. Cole had succeeded in completely closing the roller door at the northern end by then.
[5] Transcript P29 L37 – P29 L9.
At that moment the manager walked in and another exchange then occurred between him and Mr Hayes, close to the cash registers. This must have been the duty manager and defence witness Chad Naylor. After Cole reported to Naylor that Mr Hayes was “after a bottle of gin”,[6] Naylor confronted him in these terms according to the evidence of the plaintiff: [7]
[6] Transcript P29 L34-L35.
[7] Transcript P30 L14 – P31 L12.
A.He said ‘Didn’t you hear this man, go get fucked I am not going to serve you, you are not going to get served’ something like that.
Q.    What did you do at that stage.
A.I thought myself I am not going to get served, so I make a few more steps to the exit and I said – I will try again. I said ‘I am after a bottle of gin, can I get a bottle of gin’. He said to me ‘I told you already you are not going to get served, go and get fucked’. I said to him ‘Get fucked, I will take the bottle, I buy a bottle of gin’.
Q.    Is that the best recollection you have of the words that were said.
A.    Yes.
Q.    And then what happened after that.
A.While he was talking to me he make few steps towards me and he said again ‘Go and get fucked’. I said ‘What are you going to do’ and then he just grabbed me.
Q.    Where did he grab you.
A.He grabbed me by the shirt – not the shirt, tracksuit, I have, in the chest area. He shook me and then the next thing was he punched me and he was shaking me and then he punched me and my face, caused me to fall back to the fridge.
Q.    What part of his body was he using to punch you.
A.    It was his elbow. Wasn’t his fist, I am pretty sure it was elbow.
Q.    Where did the elbow land on your body.
A.    On my jaw.
Q.    What happened after that.
A.After that I end up in the cool room, in the fridge, inside, with my legs sticking out. I was trying to get out with some difficulty as I saw the blood on my hand and this man was standing in front of me and I was thinking at this stage he is still going to go after me so I just stood up as quick as I could and run as quick as I can and run back to my car
Mr Hayes marked on the plan of the area Exhibit P2, the bank of fridges to the south-eastern end as being the point where these latter events took place.[8] He described retuning to his vehicle where Gruszka asked him “What happened to you?” to which he responded “Just go, I will tell you later”.[9] They drove direct to Gruszka’s house. On the way Gruszka saw bleeding. Hayes told him “I was hit by the manager for no reason. I don’t know why”.[10]
[8] Transcript P33 L27-L38.
[9] Transcript P34 L27-L28.
[10] Transcript P35 L5-L7.
At the house he resolved to ring the police. Gruszka had no home telephone and his mobile battery was flat, so it was then that Mr Hayes decided to walk back to the Tavern to make the call. It took him 15-20 minutes, permitting time “to get some fresh air and to calm down”.[11] Gruszka walked with him. It is not entirely explicable why they did either, however it appears that Mr Hayes was anxious to preserve evidence of the damage.[12]
[11] Transcript P36 L15-L29.
[12] Transcript P38 L12-L15.
Eventually he did make the call from a public telephone box located near a library adjacent to the Woodcroft Tavern car park, but it was to his wife. They resolved to meet at Gruszka’s house where she advised him to go to the police, rather than calling them. She tended his cuts, including lengthy cuts to the upper left arm, top of the head, as well as smaller ones to the left hand. These are shown in the photographs Exhibit P4 taken by her that afternoon.
The defence case – a summary
It is the case for Woodcroft Tavern that the bottle shop was already closed when Hayes and Gruszka arrived. It was after midnight, the regular closing time Saturday evenings, and the tills were removed. All this was explained to Mr Hayes with whom the employees were unable to reason. It is also the defence case that he was both intoxicated and aggressive. The defendant asserts Mr Hayes suddenly grabbed Naylor by the throat, for no apparent reason. He spontaneously took hold of Hayes as a reaction and in order to break the grip. A short scuffle followed during which they tripped on a step or a ledge leading to the cool room, causing them both to fall through the glass door. Hayes fell backwards with Naylor falling with him under the momentum. It is common ground that the glass door shattered. Mr Hayes then ran from the bottle shop, on both accounts.
The defendant acknowledges that Mr Hayes returned later. Once again, he was aggressive. It accepts that he wanted to make a telephone call, however entry to the premises was refused by security staff because of his state of intoxication. At that time, 12.30am or so, the bistro remained open. It falls to this court to determine the facts therefore, according to the civil standard of proof.
The evidence for the plaintiff
The case for the plaintiff was supported to some extent, by the evidence of his friend Mr Gruszka. The general tenor of that evidence coincided for the most part with that of Mr Hayes as to times and circumstances, as to the quantity of gin he drank between approximately 7.00pm and 11.00pm or 11.30pm that night and as to the general circumstances surrounding their return on foot sometime later that following Sunday morning. Gruszka’s evidence also touched upon the subsequent telephone call to Hayes’ wife from a public phone box nearby and the report made at the Christies Beach police station still later that morning.
It transpires that Gruszka was more or less a regular at the Woodcroft Tavern Bottle Department and was recognised, at least by Cole. He did not purport to see the critical incident inside the driveway, nor to have heard the exchange taking place near the main entrance to the hotel later when they returned. He did say that Mr Hayes told him in between time that “the manager hit me and I fell into the fridge”.[13] The evidential use to which this evidence may be put is somewhat limited, as will appear later. Gruszka added that when they returned on foot, although he could hear what was said he did not participate. Wisely perhaps, he stopped short of approaching the Hotel employees, electing to keep his distance, thinking “I preferred to stand there as a witness ….. I didn’t see the need for me to go inside with him when he’s making a phone call”.[14] He said further in evidence: [15]
I heard laughter and then Jerry turned around and came to me, that laughter emanating from the three other men in the area namely the bottle shop manager, the attendant and a security officer.
[13] Transcript P165 L13-L14
[14] Transcript P18 L6-L10.
[15] Transcript P169 L30 – L35.
This coincides with Mr Hayes’ evidence that Cole and Naylor laughed at him after he indicated a desire to call the police as “they should come and investigate how this incident happened”.[16] Mr Hayes was apprehensive the employees might clean up the mess and “cover everything”.[17] This happened in conjunction with the allegation by Mr Hayes that Cole said: “I had an accident, I slipped on a banana skin or soap and they was all laughing”.[18] No such allegation was put to any of the defence witnesses under cross-examination. Mr Gruszka also gave some evidence touching the measure of damages. There is no suggestion Gruszka was affected by alcohol – he stated he did not drink that night because of medication he was taking.
[16] Transcript P38 L15.
[17] Transcript P38 L18-L19.
[18] Transcript P38 L18-L19.
Mr Hayes’ wife of nearly seven years, Agnieszwa Parojus completed the oral evidence called on his behalf. Her evidence was directed almost entirely as to damages. She, too, was asked a few questions eliciting statements attributed to Mr Hayes following the incident, including the following statements made by him over the telephone about 1.00am that morning “I have been attacked at Woodcroft Tavern … can you come and meet me at Roman’s place”[19] and “the manager exchanged some pleasantries and then grabbed him by the track suit top … and hit him with his elbow to his jaw … [and] he fell backwards into the fridge and shattered the glass”.[20] Once again the use to which this kind of evidence may be put is discussed later in these reasons. She dressed his wounds the following morning at about 7.00am.
[19] Transcript P226 L10-L12.
[20] Transcript P227 L24-L27.
Records maintained by the Noarlunga Health Services (Exhibit P15), show Mr Hayes attended the emergency department at 4.25am when he was examined, presumably after leaving the police station. A note of the examination reads:
Involved in altercation … hotel staff – pushed over and falling onto glass/cartons of beer … gradual onset of (R) lateral neck pain, 1.2 h after fall … sore back, cut on fingers.
He was prescribed Panadeine Forte and referred for an x-ray. Taken that day, this recorded “stiff neck following a fall” – cervical spine examinations were normal.
A number of critical issues emerged during the course of the trial. These included the time at which the plaintiff first arrived, his state of sobriety, the fate of surveillance images taken in the bottle shop at the time and of course the core events preceding the shattering of the refrigerator door. It should be noted that the plaintiff also called Senior Constable Argent as part of his case. The significance of his evidence is dealt with at other stages of these reasons.
The evidence for the defendant
Mr Cole, presently bottle shop manager with the Colonnades Tavern at Noarlunga Centre, held the position in 2002 of bottle shop attendant at the Woodcroft Tavern. He commenced the closure procedures at quarter to twelve, as he recollects, by putting “bollards up at the southern entrance to the drive-through”.[21] He noticed a customer – unquestionably the plaintiff – slide or dive under the northern door when it was between half to three quarters closed. This was, according to him, just after midnight.[22] The customer asked for a bottle and was refused as “its after 12 o’clock and we can no longer sell alcohol any more.”[23] Mr Hayes responded “why can’t you sell me more alcohol”, as Cole headed, according to later evidence, from the northern to the southern end of the shop, to close the door at that end.[24]
[21] Transcript P370 L25-L27.
[22] Transcript P373 L17- P375 L29.
[23] Transcript P376 L27-L28.
[24] Transcript P377 L13 – P378 L15.
Cole next overheard raised voices between Hayes and Naylor near the bank of fridges towards the north-eastern corner, to the effect that they could not “serve any grog after midnight, nothing we can do about it”[25] as to which he said Mr Hayes “couldn’t take “no” for an answer”.[26] He described Hayes as smelling of alcohol and having slurred speech.[27] To his credit, Cole conceded that he probably told Hayes to “Get the fuck out. I have got to close. We can’t sell grog anymore”.[28]
[25] Transcript P378 L18-L20.
[26] Transcript P877 L1.
[27] Transcript P371 L30-L33.
[28] Transcript P378 L34 – P379 L5.
He then heard Mr Hayes threaten Naylor “I am going to fucking kill you. Give me my fucking grog”.[29] According to Cole, Naylor responded “You don’t threaten me or my family like that”.[30] This caused Cole to turn around, as he was heading towards the southern end. He observed they had each other by the “scruff of the shirt”, near the same bank of fridges.[31] Mr Hayes then “hit the ledge basically with the back of his foot, and … fell backwards and … pulled [Naylor] with him”[32] into the fridge.[33] The “ledge” to which he referred at this point in his evidence was undoubtedly a step in front of the bank of fridges.
[29] Transcript P380 L9-L10.
[30] Transcript P382 L22-L23.
[31] Transcript P380 L19-L29.
[32] Transcript P382 L30-L32.
[33] Transcript P383 L8 – L12.
On this account of the events Mr Hayes then stood up, alleged “I will fucking get you, you threw me through the fucking fridge … I am going to … come back and kill you”[34] as he exited through the southern door, which remained open. Cole remembers Mr Hayes returning later, attempting to gain entry to the gaming area and shouting “you threw me through the door …”.[35]
[34] Transcript P388 L27-L28.
[35] Transcript P385 L10.
For his part Mr Naylor, then duty manager, deposed to the usual procedure, being to remove the tills for counting once the roller-doors were dropped.[36] Cole gave evidence to the same effect.[37] However on the night in question he recalled the tills were taken inside “just before” the incident in question.[38] It will prove necessary to return to this subject, later in these reasons. He also said it was him rather than Cole who put the bollards in place and that Cole closed the northern door.[39] In this instance, the closing procedure commenced at approximately 11.50pm, according to him.[40]
[36] Transcript P440 L31 – P441 L5.
[37] Transcript P372 L15-L31.
[38] Transcript P443 L7.
[39] Transcript P444 L16- L32.
[40] Transcript P478 L28.

Naylor thought that he went to “the other” (southern) end to place the bollards and “then started dropping that door down”.[41] As he was doing so he heard the northern door stop, turned around and saw Mr Hayes “getting up off the ground” whilst Cole was telling him “look mate, we are closed, you can’t come in.”[42]
[41] Transcript P444 L18-L19.
[42] Transcript P444 L34-L36.
To this Hayes retorted “Its not 12”, and he wanted a bottle of vodka. Naylor joined the exchange and came back into the centre area, telling him “we were closing, that unfortunately the tills had been taken, it was past 12 o’clock, by law we can’t sell, we couldn’t serve, and that he would have to leave”.[43] Naylor described him as slurring his words and swaying on his feet.[44] Naylor’s evidence-in-chief then proceeded:[45]
[43] Transcript P446 L1-L6.
[44] Transcript P446 L13.
[45] Transcript P446 L18-P447 L18.
QSo he’s told a few times by either or both of you and Ben that you can’t serve him. What occurred next.
ABen had finished closing the door.
QLet me stop you there, the northern door.
AThe northern door.
QGo on.
AHe’d also come back across as I was trying to talk to the man to leave, saying that There’s no point really arguing, I’ve told you we are not going to serve you’ and once again asking him to leave, and he would have been asked quite a few times. He was becoming agitated, couldn’t understand why I wouldn’t just take the money and give him what he wanted. He started becoming abusive.
QWhat did he say.
AHe told me he was going to be waiting for me outside, that he was going to slit my throat. He repeated it quite a few times. He was told “All right, that’s it, you need to go’. I didn’t want to be spoken to in that way, and he’d begun to walk back towards the other end, which the doorway was still probably a metre or two from the ground.
QThat is toward the southern end.
AThe southern end. As he came past me he reached for me and grabbed me by the throat.
QAre you able to recollect which hand he grabbed you with.
ANo.
QWhat occurred next.
AI took a step back, had grabbed hold of his hands and the front of his shirt to try and break free. As I have done so and have taken a step back I’ve stepped into the ledge that leads up to the doors, the glass doors. There would have been – there was two stacks of five or six cartons of beer on either side which would have been there for displays. As we’ve hit the step we’ve both gone over, fallen and crashed into the door.
QThat is the door of the refrigerator.
AYes, the glass door of the refrigerator.
Once again the reference to the “ledge” is undoubtedly to the step in front of the fridges.
Both Naylor and Cole acknowledged Mr Hayes returned with Gruszka. Both admit refusing entry, acknowledged he wanted to call the police and directing him to the public phone box. As it happens, at about 3.00am that morning Naylor typed on a word processor at the Tavern, a summary of the incident, which became Exhibit D3C. Once again the proper evidential use of this exhibit falls for later determination.
It remains only to mention in the present context that the defence called one further witness as to the facts, Mr Taylor, presently a technical writer for a defence force contractor. Taylor was at relevant times a contracted security officer to the Woodcroft Tavern through his then employer Total Control Agencies Pty Ltd. He was not present during the events occurring in the drive-in, but he was when Mr Hayes returned later with Gruszka.
As a matter of course Taylor kept a log of “any incident that occurred whilst I was on duty”.[46] He wrote an entry with regard to the events that Sunday morning, some at 17 minutes past midnight and the balance at 2.00am.[47] This log was admitted into evidence without objection as Exhibit D17. He conceded having no independent recollection of the events and to being “largely reliant” on the log in giving his evidence.[48] The note records he was in the gaming room of the Tavern when he received a call at one minute past midnight, requesting him to attend the drive-through following an incident there, which he immediately did.
[46] Transcript P332 L7.
[47] Transcript P33 L36 – P339 L13.
[48] Transcript P344 L27.
On arrival Mr Taylor saw the plaintiff leaving the area. He was instructed to ensure that he did not enter the Tavern proper. He noticed Mr Hayes near the passenger side of a white Ford just before the vehicle was driven off, so that must have been outside and at the northern end, bearing in mind Hayes exited through the southern door as the northern door was shut. At 12.30am Taylor was asked to attend near the entrance to the front of the Tavern. He noted the plaintiff approached in a “threatening manner”. According to his note, Gruszka “stopped at a distance”.[49] Mr Hayes announced he was intending to call the police, whereupon he was seen to walk towards the public telephone box. The note also suggests the plaintiff walked “not in a slow manner”.[50] He was refused access to the Tavern in order to make the call.[51] Taylor had no independent recollection of anything that may have been said at this time, including any references to Mr Hayes slipping on soap or a banana skin.[52]
[49] Transcript P336 L28–L35.
[50] Transcript P337 L33.
[51] Transcript P358 L4-L7.
[52] Transcript P358 L8-L16.
Analysis of the evidence – general principles
The demeanour of the witnesses and the manner in which they gave evidence does not throw any light on the probabilities in this particular case. In any case, it is always necessary to be conscious of the mistakes that can be made about credibility by reference to witness demeanour, based upon the impression of witnesses in the artificial circumstances of the courtroom: Chambers v Jobling[53], Galea v Galea.[54]
[53] (1986) 7 NSWLR 1 at 9.
[54] (1990) 19 NSWLR 263 at 266.
During the course of closing addresses it was submitted on behalf of the plaintiff that:[55]
Mr Naylor, who doesn't work for the Woodcroft Tavern any more, has conspired with Cole to lie, he has conspired with Phillips who doesn't work for the Woodcroft Tavern any more, and with Woehlert, who is a former 20-year police officer, to destroy evidence, when the hotel is insured.
Quite frankly such an approach is both unprincipled and inappropriate. Unprincipled because the case falls for determination according to proof of the elements of assault and battery, or of negligence, according to the ordinary standard of proof. The plaintiff need prove no more than that. It pitches the case too high to approach the issues from the perspective of proving a conspiracy. Nor does such an approach assist the court to give unprejudiced consideration to the issues, for it serves only to deflect attention away from the true issues falling for determination, namely whether the action in tort has been established.
[55] Transcript P735 L28-L34.
It is inappropriate on the grounds of procedural fairness, since the allegation was not put to the witnesses concerned, so they were denied the opportunity to answer it. Equally the court was denied the opportunity of assessing the veracity of their answers. As pointed out in the joint judgment of Gummow, Kirby and Callinan JJ in MWJ v R,[56] in connection with the rule in Browne v Dunn:[57]
[39] One corollary of the rule is that judges should in general abstain from making adverse findings about parties and witnesses in respect of whom there has been non-compliance with it. A further corollary of the rule is that not only will cross-examination of a witness who can speak to the conduct usually constitute sufficient notice, but also, that any witness whose conduct is to be impugned, should be given an opportunity in the cross-examination to deal with the imputation intended to be made against him or her.
[56] (2005) 222 ALR 436; (2005) 80 ALJR 329.
[57] (1893) 6 R 67.
By the same token there is also the capacity to be side-tracked by a submission for the defence. Mr Copolla maintained that as the allegation of assault was serious, it stood to be resolved by applying a Briginshaw[58] onus to the fact-finding process. The position is however that laid out in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd per Mason CJ, Brennan, Deane and Gaudron JJ: [59]
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw: [60]
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ...". There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading.
[58] Briginshaw v Briginshaw (1938) 60 CLR 336.
[59] (1992) 110 ALR 449 at 449-450; (1992) 67 ALJR 170 at 170-171, footnotes admitted
[60] Above at 362.
As stated already, the plaintiff pleads his case in negligence and assault. The alleged attack comprises striking to the jaw with an elbow. This is also pleaded to have amounted to “a breach of the duty of care” owed to him (Statement of Claim para 17 (iii)). Particulars of the duty or of the breach remains unspecified. His counsel raised no argument as to negligence in his final address. He focussed entirely on assault. So did counsel for the defence. As also stated, no alternative defence is raised, so it is a case as fought, very much of all or nothing from the point of view of both parties, that is assault or no assault.
To be more accurate, the case is one of assault as well as battery. Both give rise to independent causes of action, as a species of trespass to the person: Bunyan v Jordan.[61] Assault simply consists of intentionally creating an apprehension of immediate harm: MacPhearson v Beath,[62] whereas battery occurs when the threat is actually carried out: Fowler v Lanning,[63] Letang v Cooper,[64] Platt v Nutt.[65] Even so, both the intentional and the negligent infliction of direct personal injury can amount to a breach of duty: Letang v Cooper,[66] Lang v Hepworth.[67] Although available as a defence, self-defence is not raised in these proceedings: Underhill v Sherwell.[68]
[61] (1937) 57 CLR 1.
[62] (1975) 12 SASR 174.
[63] [1959] 1QB 426.
[64] [1965] 1 QB 232.
[65] (1988) 12 NSWLR 231.
[66] Above.
[67] [1968] 1 WLR 1299.
[68] Unreported NSC of A 18.12.97: BC 970783.
The issue of time
The evidence of Mr Hayes and Mr Gruszka coincide to the effect that they arrived at five minutes to midnight in the expectation of the bottle department closing at midnight. Although the formal hotel licence was not proved in evidence, it is accepted the Tavern was permitted to trade until midnight.[69] Furthermore, the defence admits to holding out to members of the public that it was open for business to 12am.[70] The plaintiff claims to have looked at his watch before leaving Gruszka’s house, as did Mr Gruszka. Gruszka thought that if they were to arrive within closing time, they would “have to leave at ten to twelve”.[71] In contrast, the case for the defendant is that they arrived after midnight, when the bottle shop was in fact, as it was to outward appearances, closed. It was the evidence of the former manager of the Tavern, Mr Aaron Phillips, that the tills were electronically operated, so that they recorded the time of making the final transaction for the day.[72] This was stored on a central computerised system, capable of producing a running sheet of the transactions as well as a total of money taken.[73] Such records, according to the understanding of Mr Phillips, were kept for at least five years.[74]
[69] Liquor Licensing Act 1997 (SA), s32(1).
[70] Paras 2, 7.
[71] Transcript P157 L8.
[72] Transcript P292 L36.
[73] Transcript P296 L29 – P297 L7.
[74] Transcript P297 L14.
Mr Phillips was cross-examined at some length on the nature and content of the electronic records generated by the computerised tills. An example was the following exchange with the plaintiff’s counsel:[75]
[75] Transcript P296 L19- P298 L7.
"QWas it the case that an electronic balance is done on a hard copy paper reel at the end of each day back in 2002.
AYes, there was.
QWas it also a computerised system.
AYes, it was indeed.
QWere records available with respect to the computer entries of transaction times and so forth on the computer system upstairs in your office.
ANot in my office they were in the office adjoining mine.
QDid you actually close off tills prior to taking off the till –
AThere was a – not sure it was a Y read – which gave a reading up until the time they pressed the buttons so you could calculate – that would give a recording of how much money had been – should be in the till, and then they would go and count it minus the $200 float and that money should be there plus or minus and should be right.
QWould you take the X read or Y read with you.
AThat’s correct.
QAnd leave it in the till so you would check that the balance of cash in the till at the end of the day.
AYes, and that would transferred to a running sheet for the day.
QAnd you would of course see the time that the X read or Y read was taken on that reel of paper as well.
AYes, you would.
QYou indicated that it was your understanding that part of the business of the hotel was to maintain records for tax purposes.
AThat’s right.
QIs it your understanding that those records needed to be maintained for a period of five years.
AI would have thought seven but five years would be reasonable, yes. I am not sure what tax records are now.
QIncluding cash register, to make it clear –
AYes.
QCash register reels and so forth.
AI am not sure about the actual paper slips because it was always recorded electronically, electronic records, and they were all on to back-up discs that were stored every month.
QSorry, the information from the X read who actually recorded the information, who took the information from the X read and turned it into an electronic documents or was that something that happened automatically.
AAutomatically, yes.
QWas the time – I expect it would be the case that electronically you would be able to see the time that the X read would be taken from your computer records.
AThat information came up on the server, the computer server, for tills, cash register system.
QIf we wanted to know what time the till was closed off that night, we might be able to learn in the ordinary course of the hotel’s practice – we might be able to learn that information from either the cash register reading the X read or Y read or alternatively from electronic record of that read.
AOf the last transaction.
QOf the last transaction but would it also have an electronic reads of the X or Y read.
AAbsolutely.
QWould that include the time that was –
AYes. Yes.
The day after this evidence was given, the plaintiff brought an application for the production of those records, for the very obvious reason that they had the capacity to throw substantial light on the exact time the tills were closed off, and hence when the drive-in was actually closed. Defence counsel undertook to obtain the records, should they exist. Given that five years had not fully elapsed, counsel was hopeful that they would. This was expected to take a matter of weeks, as they were stored on a central computer of a large group of companies.[76] Counsel for the plaintiff then withdrew his application for production; in consequence Mr Coppola applied for an adjournment in order to produce them himself for the defence.[77] The upshot of this procedural manoeuvring, was that the court granted the adjournment in the overall interests of justice on account of the potentially high relevance of such records, from the point of view of both parties.
[76] Transcript P310 L19-L31.
[77] Transcript P320 L15 – L26.
At the resumed hearing, defence counsel advised the court further (consequential) discovery was provided to the plaintiff during the intervening period. Subsequently, the till records were introduced into evidence through the holding company’s general manager Mr Woehlert. He explained the electronic point of sale computer-based system used at the time, produces a document or “audit trail” with respect to both tills operating in the bottle shop during the late evening of the events in question.[78] These became Exhibit P19. They show one till last transacted at 23.23pm that night, the inference being that it was finally shut down around then.
[78] Transcript P816 L12-L20.
The print-out generated by the other till is of greater interest. This recorded a final sale at 23.52pm that night. Two further entries follow at 23.58.07pm and 23.59.38pm, each described as “No sale”. According to Mr Woehlert this signifies “ … the till had been opened for some reason … the user performing some other function on the till, but not a sale”.[79] These records also show that 00.11am that Sunday morning, a “Y read” was undertaken of this till, which is the act of “balancing out the till generating the total sales …”.[80] That process involves “someone physically sits down and counts the money that is in the till”.[81] That till was not used again until it was opened by “powering up” at 08.30.02am that Sunday morning.[82]
[79] Transcript P518 L23-L25.
[80] Transcript P519 L35-L36.
[81] Transcript P519 L38- T520 L1.
[82] Transcript P520 L12-L14.
Mr Woehlert’s evidence regarding these questions was:
HIS HONOUR
QDo they put the till drawer back in, what’s the story there.
AOrdinarily the till drawer with cash in is taken out and taken to the office.
QAt the point of the Y read or just thereafter.
AIt could be before or after the Y read, simply the till is taken with all the cash in it, it’s taken to the office, it’s stored, that’s where the money is counted, the floats are replenished and next morning the till drawer is put back into the terminal and that’s when the terminal would be powered up.
QYou don’t need the till in to do a Y read.
ANo.
QWould you need the till in to be able to do a sale.
AYes.
He went on to explain the “Y read” is usually taken when the till is shut down.[83] Under cross-examination Mr Woehlert accepted the entry for the second till at 23.59.30pm was consistent with “the commencement of the procedure to shut the register down”.[84] It is highly likely given all the above evidence, that this is exactly what happened that evening.
[83] Transcript P521 L2-L12.
[84] Transcript P531 L10-L14.

It was a relatively quiet trading night as the till records suggest. There were just fourteen transactions in all after 11.07pm. In this situation it would not have been surprising in the least for those on duty to be looking for an early minute, so to speak. Once it is accepted that the garage doors would invariably be shut before the tills were removed before counting – a procedure that makes good sense purely for security reasons – the tills must have remained in the area of the drive-in when Mr Hayes arrived. The fact that the “Y read” on the second till did not occur until 11 minutes past midnight, suggests that till was not removed for counting until shortly before that time. Given that the second till was shut down just before midnight, it follows the probabilities are that the door closing procedure was commenced at about that time as well.
This leads to the resultant inference that Mr Hayes must have entered sometime around 11.59.30. There is no suggestion that the “no sale” entries were caused by operating the till after Mr Hayes entered. The entire incident itself could not have lasted all that long – one or two minutes perhaps – so that the call received by Taylor at 12.01am and then him seeing Mr Hayes at the point of departure shortly afterwards, combine to reinforce that conclusion. Naylor himself thought the whole episode took between “a few minutes” and as much as five.[85] In light of that finding, the evidence of Cole and Naylor that these events took place after midnight cannot be accepted. Equally the evidence of Messrs Hayes and Gruszka that they arrived at 11.55pm must also be rejected, as being contrary to the inferences drawn from the objective facts.
[85] Transcript P593 L32-L37.
Mr Hayes’ degree of intoxication?
A second major issue debated by the parties at some length, related to the state of sobriety of Mr Hayes that evening. The evidence on his side was that he consumed sufficient alcohol to make him at risk of being “over the limit”, but that he was not otherwise intoxicated. This comprised the consumption of a third of a 700ml bottle of gin, commencing about 7.00pm. This was also the tenor of the evidence of the two civilian witnesses called on his behalf. The defendant contends otherwise.
It is certain that Mr Hayes reported the incident to the Christies Beach Police Station, where he was spoken to by the counter enquiry Officer on duty, Senior Constable Argent, at about 1.30am on Sunday 22 October 2002. Argent took a statement from him, recorded on computer at 3.05am in a small interview room. He generated a police investigation report which became Exhibit P3 in these proceedings. Argent had been in the police force since 1969. He considered “it would not be unusual” to make a note or comment in such a report if the person approaching him at the counter appeared to be intoxicated.[86] No such note or comment was made, pertaining either to the time when he first spoke with Mr Hayes at about 1.35am, or when the formal statement was taken about one and a half hours later. It is highly likely had Mr Hayes been obviously affected, that an experienced police officer like Argent would have detected and noted it.
[86] Transcript P205 L15-L23.
Of course by 1.30am he could have sobered up, but this suggests he was only moderately affected at worst, around midnight. The descriptions of Cole, Naylor and Taylor of the plaintiff (detailed above) suggestive of intoxication are rather general, and his demeanour may well be equally influenced by the charged nature of the events.
A good deal of evidence and a good deal more argument was devoted to the extent of his intoxication, but that consideration of itself is largely beside the point. It was his stubbornness with respect to the refusal to serve him, as well as the emphatic bluntness of the employees, that formed the genesis of what followed. Of course the effect of alcohol might potentiate the state of affairs, but alcohol was not the root cause of the problem. As a matter of fact Naylor described him as initially appearing “happy and bouncing”.[87] For what it is worth based on the evidence discussed earlier, Mr Hayes is likely to have been slightly to moderately affected, but that is as much as the evidence permits on this subject.
[87] Transcript P495 L10.
The surveillance recordings
A third issue of some contention related to the fate of a video or digital recordings made at the time and the consequences that might or might not flow from this. According to all the evidence there were two cameras installed in the area, strung from the ceiling of the bottle shop at either end, directed towards the centre or the till area. They were operating this evening and produced images stored on a computer, usually kept for at least fourteen days before being “recorded over”.[88] Mr Woehlert gave evidence that in his experience the images were stored on a hard drive for “generally a month, as I understand it, because of the capacity of the computer”.[89]
[88] Transcript P291 L24-L25.
[89] Transcript P528 L33-L34.
The Tavern operated a dedicated computer system to this end. The primary purpose was to detect drive-through vehicles by their number plates, in cases of theft or robbery. Subsidiary purposes included recording untoward incidents such as fights, break-ins and the like. These operated 24 hours a day 7 days a week. The images could be stored or recorded indefinitely to CD Rom, by “burning” them to disc.[90] As it happens the cameras kept a “running time log”, so that of itself held the potential to become quite significant on the issue of the time of closure.[91] They did not however take sound recordings.
[90] Transcript P279 L1 – L6.
[91] Transcript P362 L11-L13.
It appears clear enough that Phillips viewed video footage of this incident the following Monday (he did not work on Sundays). This may have occurred whilst police officers were present. According to him the “portion of what has allegedly happened was not recorded on cameras … that was outside of their - the actual area that they could see”.[92] This was copied to disc anyway.[93] There is a suggestion in the evidence that the disc was handed over to the police, who have since lost it.[94] The court was told that a subpoena was directed to the police with a “negative return”,[95] however there is no conclusive evidence of these facts or of the fate of the CD Rom. Whatever the true state of affairs, the defendant has lost or misplaced it, but the evidence does not permit of a conclusive finding as to just how this came about.
[92] Transcript P287 L15 – L20.
[93] Transcript P291 L6-L8.
[94] Transcript P290 L13-L23.
[95] Transcript P688 L30.
Following an application for the discovery and production, the defendant proved unable to locate any images taken by the security cameras that night, whether retained on computer or copied to CD. Mr Woehlert deposed in an affidavit filed at the time (Exhibit P23) that “images were stored separately on to a drive held by the Tavern, they were no longer available as the hard drive was replaced”.
Counsel for the plaintiff sought to draw adverse inferences against the defendant from the circumstances. He pointed out that notice of the proceedings was given by the plaintiff’s solicitor on 17 June 2004. Proceedings were issued on 24 October 2005. He based the submission on a note in the police report Exhibit P3B, which read:
Date:08/112002 Time: 17:00 Officer: 1063/6 (Ent: 11/11/2002 21:47 1063/6) THOMAS / PERRY c/ South Coast CIB attd Woodcroft Hotel on 8/11/02. Spoke to duty manager on the night of this incident – Chad Howard NAYLOR … and the bottle shop attendant at the time Ben Sydney COLE …. No video surveillance tapes available for this incident as they are only stored on CD for 3 days. The incident report compiled by NAYLOR was obtained and is attached to this file.
The officers referred to in this extract, Thomas and Perry, were the same officers who went to the Tavern on the Sunday or the Monday following. Neither were called to give evidence by either party. At its highest, this material is capable of amounting to admissions made on behalf of the defendant of the destruction of the evidence shortly afterwards, when it was well known an allegation of assault had already been laid against Naylor by the plaintiff.
It was sought to employ the police report as evidence of the underlying fact that the CD was destroyed after three days. This report was admitted on the basis that formal proof was waived, however relevance and use were not conceded. There was no concession by defence counsel of admission for primary evidential purposes. In order to sustain his argument, counsel drew upon the business records provisions of the Evidence Act 1929 (SA). There is no doubt that the police report is a “business record”. Section 45A relevantly provides:
45A-Admission of business records in evidence
(1)     An apparently genuine document purporting to be a business record—
(a)     shall be admissible in evidence without further proof; and
(b)     shall be evidence of any fact stated in the record, or any fact that may be inferred from the record (whether the inference arises wholly from the matter contained in the record, or from that matter in conjunction with other evidence).
(2)A document shall not be admitted in evidence under this section if the court is of the opinion—
(a)     that the person by whom, or at whose direction, the document was prepared can and should be called by the party tendering the document to give evidence of the matters contained in the document; or
(b)     that the evidentiary weight of the document is slight and is outweighed by the prejudice that might result to any of the parties from the admission of the document in evidence; or
(c)     that it would be otherwise contrary to the interests of justice to admit the document in evidence.
(3)For the purpose of determining the evidentiary weight, if any, of a document admitted in evidence under this section, consideration shall be given to the source from which the document is produced, the safeguards (if any) that have been taken to ensure its accuracy, and any other relevant matters.
Exhibit P3B was tendered through Argent. He gave evidence of provenance in general terms and then as to the precise entry under consideration, to the following extent:[96]
[96] Transcript P205 L37-P206 L25.
QJust looking down the form, the next paragraph on is dated 11 February 2002 'Transferred to'.
AYes.
QAre you able to clarify for the court what that refers to.
ANo. Normally it would have meant who it was actually transferred to. Just looking at it, I can only make a guess that it has been returned to our crime management unit after the investigation has been made by Thomas and Kerry and then it has been returned back to our unit.
QWhy do you say 'After the matter has been investigated by Thomas and Kerry'.
AIt shows on the diary that an entry has been made by one of those officers.
QWhere does it say that.
AIt is dated 8 November 2002, the officer number and there is quite a lengthy paragraph there.
QThe entry, the subject of that lengthy paragraph, on your understanding is that to record the steps taken by police officers to investigate a matter.
AYes. That entry has been made by the officer that made the inquiry, and that would be the result of the inquiry.
HIS HONOUR
QBut in a sense, this is a bit of a running log, is it, of the matter.
AYes, your Honour, yes.
Otherwise no evidence was directed to the matters contained in subsection 45A(2) related to the particular entry relied upon, or as to when, or by whom, or at whose direction the entry was made.
Section 45A is designed to facilitate the proof of documents, by means less formal than the technical rules of the common law demanded and to permit tender for full evidential purposes, subject to certain restrictions and safeguards. These are contained in subsection 45A(2)(a). As Lander J observed in Hillier v Lucas,[97] “the test of admissibility is not only whether the documents are business records; it is also necessary to determine whether the document should not be admitted for any of the reasons in s 45A(2)”.
[97] (2000) 81 SASR 451 at [181].
In the course of examining s 45A in O'Leary & Short v Lamb & Lensworth Finance Ltd,[98] Bray CJ made this observation of its scope and purpose:
However, I do not think that Parliament intended to make any document admissible when the matter in the document would not be admissible if offered in the oral evidence of someone who could depose to it at first hand. … It could not have been intended, surely, to turn inadmissible oral evidence into admissible documentary evidence by the simple process of the witness writing down in a business record what he would not be allowed to testify to in the witness box. If he could do this, there would be no point in the prohibition of sub-s 2(a) against receiving the evidence if the court thinks that the person who prepared the document could and should be called.
[98] (1973) 7 SASR 159 at 473 198-199.
The decision in R v Calabria,[99] albeit in connection with s45B of the Evidence Act, is to the effect that “generally speaking, it is … contrary to the interests of justice to admit a document under s 45B where available evidence to authenticate the document and to verify the accuracy of the recording of the statement contained therein, is not produced, unless, in the circumstances, those matters are self-evident’. The same view was taken in Hillier v Lucas[100] of s 45A.
[99] (1982) 31 SASR 423 at 432.
[100] (above at 473 [186]).
At face value it appears as if the entry was made or directed by either Thomas or Perry. The underlying fact that Naylor the duty manager told them on 8 November the images were kept for just three days, was not put to him. No adequate reason was advanced, explaining the failure to call Thomas and Perry.
On one view they might have been able to verify or attest directly to the apparent admission allegedly made to them by Naylor. Had they no independent recollection, they might at least have been in a position to attest to the reliability of the entry or alternatively used it as a means of refreshing memory. Even if they could not have assisted as to any of these, the court might then have been in a position to form the necessary opinion that they need not have been called as to the matters contained in the entry, pursuant to s 45(2)(a). As things stand, the court cannot possibly be satisfied of compliance with s 45A. It follows that the police report is inadmissible as to the facts stated therein.
There is however a further consideration. If contrary to this view, the police notes are available as the facts, there is a further entry immediately following, that was:
I recommend no action be taken re this matter for the following reasons –
1. The level of intoxication of HAYES.
2.Counter allegation of assault and threats by HAYES upon NAYLOR which is corroborated by COLE.
3.NAYLOR was legally within his rights as the manager of a licensed premises to remove HAYES from the bottle shop area pursuant to the liquor licensing act as HAYES was intoxicated and disorderly.
4.HAYES was correctly refused service due to his intoxication and that the bottle shop had closed for trading per its license.
Therefore there is no likelihood of any successful prosecution re this matter.
Suggest matter to be filed.
The victim has been personally advised of this on 8/11
Date: 30/10/2002 Time: 09:55 Officer: 3170/7 (Ent: 30/10/2002 9:55 3170/7)
Assuming these two officers viewed the camera images, they could not possibly have reached these conclusions had it depicted an assault on Mr Hayes. Had they not seen them, they obviously preferred the version of events provided by Naylor “corroborated by Cole”. It scarcely could be suggested these opinions were evidence of the underlying facts, but if the document is admissible as a business record, the whole would be so admissible, subject to the other considerations contained in ss 45A(2)(b) & (c) and ss 45A(3).
As a statement of general principle, the unexplained failure of a party to tender material that might be expected to be adduced, may lead to an inference that the evidence would not have assisted that party’s case: Jones v Dunkel.[101] But as Menzies J points out in that case, the absence of such material cannot be used to make up any deficiency in the evidence, and cannot fill any gaps in the proof of a party’s case[102]. It seems reasonable to accept that the critical events took place out of view, as they occurred towards the eastern margins of the area. Nevertheless, it is also reasonable to expect that at least one of the two cameras might have picked up images of the entry, and possibly of the initial contact between Naylor and Hayes as this occurred towards the till area. More likely than not, they would have captured images of his attitude and demeanour. Unfortunately they did not record sound.
[101] (1959) 101 CLR 298 at 308, 312 and 320-321.
[102] Above at CLR 312.
But whatever the position, it remains inescapable that since time was recorded, the video evidence was very likely to be highly relevant for that very reason. On that footing, the inference arises from the failure to retain this material, that it would not have assisted the case for the defence that Mr Hayes arrived on the scene after midnight. However the court has already reached that conclusion, quite independently of this consideration. Still further the failure to retain the images does not of itself assist to throw light on the precise sequence of events.
Not to be deterred, Mr Sallis next called in aid the old maxim omnia praesumuntur contra spoliatorem, that is to say “if a man, by his tortious act, withholds the evidence by which the nature of his case would be manifested, every assumption to his disadvantage will be adopted”: Armory v Delamirie (Chimney Sweeper's case).[103] This maxim was articulated in the opinion of the Privy Council in The Ophelia:[104]
If any one by a deliberate act destroys a document which, according to what its contents may have been, would have told strongly either for him or against him, the strongest possible presumption arises that if it had been produced it would have told against him; and even if the document is destroyed by his own act, but under circumstances in which the intention to destroy evidence may fairly be considered rebutted, still he has to suffer. He is in the position that he is without the corroboration which might have been expected in his case.
[103] (1722) 1 Stra 505; (1722) 93 ER 664.
[104] [1916] 2 AC 206 at 229-230.
In truth the underlying principle, whatever its pedigree, is nothing more than an example of the failure to produce real evidence when it should have been provided in order to enable a judge or jury to form their own opinion on the matter in issue. An example is to be found in Allen v Tobias.[105] It is the Jones v Dunkel situation no more or no less, in a different guise.
[105] (1958) 98 CLR 367.
The problem from the point of view of the plaintiff is that there is no evidence of intentional destruction. The evidence suggests an image was made and archived but destroyed when a new computer system was installed. The fate of the CD remains unexplained. Intentional destruction is not demonstrated. The footage was available to be shown to the police when they called on the Monday, so the defence was prepared to expose the contents to scrutiny if requested. This submission does not advance the case for the plaintiff any further than the Jones v Dunkel point. All the same, it is to be regretted that this evidence was misplaced and it is perfectly understandable that the plaintiff might well harbour deep suspicions as to the reasons why this occurred. As it was, he remained concerned that the scene would be cleaned up that night.
The critical events – was there an assault and battery as alleged?

The evidence was somewhat conflicting as to the height of the northern door as the plaintiff entered. It was certainly high enough for Cole to have seen and identified the Ford when it approached from the west, before turning right and coming to a halt just near the bollards adjacent to the north-eastern lane. He said the door was about half way down when first seeing the car. This furnished the opportunity to identify the make of the car. This was the source of other references to the description of the car, rather than the position of the door when Mr Hayes entered.[106] On the whole of the evidence, although it is not possible to be precise, the door was likely to have been lowered to the point that Mr Hayes, a tall man, had to duck a little, but not so low as to cause him to slide under. Not much else turns on this particular issue, as it was obvious either way that closure was well underway.
[106] Transcript 3P74 L20-L30 (Cole) Transcript P418 L36-T420 L8.
It is also perfectly clear that whatever the source of his understanding, Mr Hayes became unduly adamant they were closing too early. He grew more insistent that they should serve him and indignant when they refused. As the court has already found the plaintiff arrived just before midnight and certainly not afterwards, the probabilities are the staff became somewhat defensive and sensitive of their position when confronted with the fact of early closure. This view is supported by the attitude of Cole, who fairly admitted to swearing at the plaintiff. Naylor’s denial of that suggests he is not an entirely reliable witness.[107]
[107] Transcript L495 L1-L7.
In this mutual state of affairs tensions were likely to be aroused on both sides. No doubt there was mutual abuse. Both Hayes and Naylor became argumentative. Mr Hayes made threats, however they would more likely have been in the nature of bravado or chest beating, than real. The same applies to threats said to have been made on leaving – certainly he did not remain to carry them out.
There can be little doubt that in the result Hayes and Naylor took each other “by the scruff of the shirt”. Mr Hayes asserts that Naylor grabbed him first. In contrast Naylor says it was Hayes who first made physical contact. A potential clue as to the probabilities lies in the note made by Naylor afterwards, Exhibit D3C, the misnomered "Insodent Report". Naylor stated that he prepared this that night “about 3 o'clock in the morning”, using a word processor on a computer at work. The circumstances under which this report was written-up, are explained in the following passage taken from Naylor’s evidence:[108]
[108] Transcript P464 L-19, Transcript P465 L3.
Q.When an incident occurred, this is in October 2002, it was your understanding you needed to complete an incident report.
A.Yes.
Q.Had you filled out many incident reports prior to 23 October 2002 - prior to the incident in October 2002.
A.Yes, most things got recorded as an incident report, yes I think.
Q.You knew that incident reports were important to inform your employer factually of what occurred in any given circumstance reported.
A.Yes.
Q.You knew that from time to time incident reports would be given to police officers.
A.Yes.
Q.So it is important to have the contents of the incident report as factually accurate as you can make them.
A.Yes.
Q.They might even be used for police prosecutions or legal procedures against your employer.
A.Yes.
Q.You were aware of that at the time.
A.Yes.
This must have been “the incident report compiled by Naylor” obtained by officers Thomas and Percy on 8 November, as recorded in the police report Exhibit P3. Insofar as it bears upon the question of who applied force first, the note made by Naylor reads:
At approximately 11:50pm I entered the Bottle Shop, in preparation to close. At 12 midnight I placed the two forward bolts into the ground … [I] then began to drop down the roller door when the door was about two feet from the ground a man came sliding through on his stomach almost getting his legs stuck coming under. I said to the man sorry but we are closed he responded by saying I need more booze we have no more booze. Once again I said to the man Sorry but unfortunately it is against the law for me to sell any take always after twelve, so I'm sorry but we are closed so I am going to have to ask you to leave. At this point he walked away from me and went up to the bottle shop attendant Ben Cole and said come on I only want a bottle. Ben also replied sorry but we can't serve you.
At this point he was starting to get aggressive. I then asked him to leave again and he responded that he would not leave until I get what I cam for. I said well you are in for a long night because you aren't getting served. He said I'm only five minutes late and I said well we have been open for the last 15 hours you should have came in then. I then said look mate I have asked you repeatedly to leave you are trespassing, you are not gonna get served so you may as well go home. His response to this was You fuckin cunt I'll be waiting for you outside I'm gonna kill you. I said your going to kill me over a bottle you're a wanker. He said I'll be waiting outside I slit your throat you fuck head. I responded with I'm not telling you again get out and put my hand behind his back and went to lead him out. He then grabbed me by the throat. I then grabbed his hand and his shirt about chest level and tried to break free as this was happening we moved back as we did the man tripped on the blue step which was in front off the glass doors leading to the cool room he then fell backwards pulling me with him.
He was taken to the report at length under cross-examination.[109] Whilst attention was drawn to various passages in the report, no attention was given specifically to the passage “I … put my hand behind his back and went to lead him out. He then grabbed me by the throat.” On the whole, the terms of his evidence suggest that he warranted or adopted the truth of its contents.[110] He acknowledged that in giving evidence his “recollection wasn’t as good as when [he] prepared the first incident report”.[111]
[109] Transcript P478 ff.
[110] Transcript P478, Transcript P511.
[111] Transcript P503 L12-L15.
The legitimate evidential use to which this report may be put is somewhat problematic in these circumstances. The document, forming part of MFI P3, was produced to the court by Police Officer Argent as part of the original police report. Naylor confirmed it was prepared by him in examination-in-chief when it was tendered as a separate exhibit by counsel for the defence. Ultimately it became tolerably clear from this entire evidence that the report is available for use as evidence of the facts stated therein: R v Jacquier. [112]
[112] (1979) 20 SASR 543 at 554.
The combined circumstances lead to the conclusion that what Naylor wrote in his report is precisely what happened, so far as physical contact with Mr Hayes goes. Naylor accepts he wanted Hayes to leave. On the findings already made he became overly defensive in the predicament. This course of events is more consistent with the plaintiff’s version, at least to the point that Naylor acted first, even though Mr Hayes does not claim it occurred in a way suggesting he was about to be escorted from the driveway.
The plaintiff’s claim to then having been struck to the jaw with an elbow is harder to accept. These events began towards the centre of the Tavern. Somehow they had managed to move from there to the fridge area, so that some minor struggle must have ensued. Even so it is inexplicable that Naylor would strike for no reason. Naylor had no reason to go to such lengths, as he had Cole to assist him, if required. Both were relatively big men, even in comparison to Mr Hayes. In any case he knew Cole was present and very likely to become a witness to an unlawful assault.
On the plaintiff’s case, falling backwards into the refrigerator was caused wholly by elbowing to the jaw. His insistence that this occurred near the southern bank of fridges does not marry with his evidence of his own movements that evening, because to this point in time he never progressed any further south than the till area. This suggests he was anxious to avoid the obvious problem of having to explain how they managed to avoid the step before falling into the fridge, by attempting to place himself at some distance from the northern bank of fridges.
More than that, his denial of tripping over the step or “ledge” in front of the refrigerators to the north-east section, is even more difficult to accept.[113] This step or ledge is visible towards the bottom of the first photograph of Exhibit P4. No direct evidence was given as to how high it was, but it is clearly several inches at least. Just how the two men managed to negotiate the area between the driveway and the fridges whilst struggling with each other, without engaging the step is not readily explicable. The inherent probabilities are that they must have stumbled on the step before falling.
[113] Transcript P136 L1-L14.
Evidential use of prior consistent statements
Nevertheless the plaintiff claims there is other evidence supportive of his version of the events. This consists of statements made by him to others shortly afterwards. First there is a statement to Cole as he departed “I will fucking get you, you threw me through the fucking fridge …”; second the statement to Gruszka minutes afterwards “I was hit by the manager for no reason. I don’t know why”; and third a statement to his wife an hour later “the manager exchanged some pleasantries and then grabbed him by the track suit top … and hit him with his elbow to his jaw”. These were said to be admissible under the res gestae principle.
Evidence may be received as evidence of the facts, as an exception to the hearsay rule (and for that matter as an exception to the self-corroboration principle) on account of contemporaneity with the transaction in issue, provided it forms an integral part of the transaction and is substantially contemporaneous with it: Adelaide Chemical and Fertilizer Co v Carlyle.[114] The application of the principle was discussed in Vocisano v Vocisano.[115] Barwick CJ emphasised in that case:[116]
The question of whether statements form part of a res gestae is fraught with difficulty at any time.
A reason for the doctrine that statements made as part of the res are admissible as evidence is that, because of their contemporaneity and the circumstances of their making, they were unlikely to be concocted and therefore might well be reliable: but that does not mean that statements made on an occasion when they are unlikely to be concocted are for that reason admissible.
[114] (1940) 64 CLR 514, 531.
[115] (1973-1974) 130 CLR 267.
[116] (at 272-273).
The Chief Justice concluded on the facts (otherwise immaterial in this instance)[117] that there was insufficient contemporaneity between the statements made to the witnesses and following an accident to warrant the conclusion that they formed part of the res and although made approximate, “were in the nature of a historical account rather than in the nature of a statement made as part and parcel of the occurrence”.[118]
[117] Stephen and Jacobs JJ agreeing.
[118] 130 CLR at 273.
The second and third utterances are clearly not sufficiently contemporaneous with the transaction, to qualify for admission as part of the res case. In any case the possibility of concoction by then cannot be disregarded: R v Ratten.[119] Mr Hayes had good reason to vindicate himself or seek to explain his injured condition in the eyes of his friend and his wife.
[119] [1972] AC 378.
The first utterance is not so easily disposed of. It was not claimed to be one made by Mr Hayes himself, so that consideration has the potential to affect weight. As it is not something to the advantage of the defendant, Cole is hardly likely to have invented it. The fact remains however that the allegation of being thrown through the fridge is consistent with both versions of the events. In one sense it is literally true, as it appears to have been because of the forward weight of Naylor that Mr Hayes proved unable to break the fall. More tellingly, he is not alleged to have said ‘you elbowed me to the jaw’ or something more akin to the central allegation. The evidence is such that the utterance – even if made – does not clarify the probabilities one way or the other on the central question of assault by elbowing. So that even if this statement forms part of the res gestae, it is of no utility in determining what the underlying facts were.
Negligence
In the result the plaintiff’s case of an assault and battery must fail. He has failed to discharge the onus of proving a trespass in the manner alleged. He has proved that Naylor first laid hand on him but has failed to demonstrate this was done with the intention of creating harm. That leaves the claim in negligence to consider. No case on an alternative basis of negligence was pressed. None was contemplated by the defendant. On the above findings the only basis of negligence it is possible to identify, is Naylor placing his hand on the back of the plaintiff and then taking him by the shirt. Even so, nothing supporting an action in negligence arises on these findings. It is not demonstrated that Naylor used excessive or unlawful force. No alternative claim in negligence is therefore made out. It may be that in certain circumstances, an hotelier might fall under a duty of care towards the safety of patrons, but in the proven circumstances this case is not one of them.[120]
[120] Chordas v Bryant (1988) 91 ALR 149, 156; Eggins v Canberra Enterprises Pty Ltd (1974) 2 ACTR 66; Kelly v Smith (1986) 42 SASR 13, Cvetkovic v Tilt Amusement Centre (1989) 51 SASR 365; and c.f. Wormald v Robertson (1992) ATR 81-180, Foroughi v Star City Pty Ltd (2007) 163 FCR 131.
Damages
It is therefore not strictly necessary to proceed to an assessment of damages, however it is in the interests of the parties for the court to proceed on the assumption that the events are, or were substantially, those alleged by Mr Hayes. Of course all that follows is premised upon that basis. The claim for damages is essentially one for pain and suffering and loss of earning capacity for the future: no claim for pre-trial earning capacity is made.[121] Damages may be awarded for an assault even if not accompanied by a battery: Barton v Armstrong.[122] The assessment of damages for an assault and for battery nevertheless proceeds according to ordinary principles of assessment: Lamb v Cotogno.[123]
[121] Transcript P711 L37, Transcript P712 L1.
[122] [1969] 2 NSWLR 45.
[123] (1987) 164 CLR 1.
The plaintiff was born on 26 April 1966 and at the time of suffering injuries comprising mostly cuts to his hands, back and upper arm, was employed as a bus driver. He became a full time bus driver with SERCO on 11 November 2002. He managed to hold down steady employment, except for the period between May 1998 and February 1999. During that time he was self-employed on a rural property. Following these events he took four days sick leave in order to rest his back. For three months he took pain killers and other medication, permitting him to remain at work. He was restricted in movement and felt constant pain afterwards.[124] On 11 May 2005 he resigned and began working with the Marion City Council. At the time of trial he was employed there as a casual gardener.
[124] Transcript P231 L8, Transcript P232 L16, Transcript P232 L35, Transcript P234 L23.
He maintains that because of constant back pain, he is unable to accept offers for overtime and that he is less inclined to seek employment in more rewarding areas. No evidence was proffered to enable the court to estimate how much overtime he may have given up. He held aspirations of gaining higher paid work as a heavy truck driver or in the mining industry, at such places as Roxby Downs or Olympic Dam. He also claims to have suffered consequential depression and moodiness, which produces anger at times.
Records of the Noarlunga Health Services (Exhibit P15), as quoted above, record neck pain, in particular. He was prescribed Panadeine Forte and referred for x-ray. That x-ray recorded “stiff neck following a fall” – cervical spine examinations were normal.
The health records of the Woodcroft Medical Centre, his general practitioners, are before the court (Exhibit D11). These reveal he made no report linking his current symptoms with the subject incident.[125] There was an attendance on 8 November 2002 reporting that on the previous Tuesday he felt a little stiff and was unable to turn his head, flex or extend and on 19 August 2003 that he was sleeping on the floor due to low back pain. According to the notes the back pain returned by 11 March 2003 and there were other reports suggesting an incident at work when driving a bus in the city on 28 January 2004 was of far more significance to him.
[125] Transcript P90 L22-L25 and Exhibit D10.
Medical reports were tendered in the plaintiff’s case by consent, of two doctors, neither of whom were called by the parties. The first were prepared by Doctor Bastian a consultant in rehabilitative medicine. He considered the CT scan of the lumbar spine taken on 22 May 2003 revealed a mild bulge at L3-4 level and a more significant disc protrusion at L4-5, suspected of compressing the existing L5 nerve root. The diagnosis of Doctor Bastian in his report of 21 May 2004 was of “ongoing problems in relation to the lower back and neck region, in addition to the scarring over the left lateral upper arm, back and palmar-ulnar aspect of the base of the third finger”. He estimated permanent residual impairment of the lower back and lumbar spine to be in the region of 15 percent, representing “ongoing clinical evidence of mechanical dysfunction in the lumbar spine”. He expressed permanent residual impairment due to scaring, at one and a half percent of the “whole person”. Doctor Bastian also suggested there was permanent partial incapacity for work, because of an inability to undertake repetitive bending or lifting.
His second report of 10 September 2007 noted continuing reports of constant aching pain in the left lower back region, aggravated by sitting, sneezing and lifting more than 10 to 15 kilograms from low levels. Mr Hayes was advised to take pain relief. He reported, consistent with Hayes’ evidence, of cutting back on work and domestic chores. Doctor Bastian’s conclusions were much the same as those expressed as in the earlier report.
Two further reports, commissioned at the request of the solicitors for the defendant dated 5 June 2006 and 19 September 2007 respectively, were also tendered. These were prepared by Associate Professor Bauze, an orthopaedic consultant. He was of the view, as was Doctor Bastian, that the reported injuries were consistent with the stated cause, premised on an acceptance of the history given by Mr Hayes. He regarded the CT scan as showing no abnormality and the disc protrusion at L4-5 of doubtful significance. Mr Bauze considered Mr Hayes was capable of working at his full time job as a gardener, because no heavy lifting was involved and that he was equally fit to carry on work as a bus driver. He also said that it was possible the L4-5 disc would shrink with age, producing some loss of strength in the lower back and levels of pain, to a degree as tolerable as they were at the present time.
His second report followed an examination on 18 September 2007. Mr Bauze thought there was progressive improvement from the severe symptoms said to be experienced in 2002 and 2003, but no change over the previous 12 months. On the whole he considered there to have been no significant changes. He remained of the view that Mr Hayes should not undertake heavy or repetitive lifting, bending, leaning, twisting or any other “awkward positions”, although he was fit to carry out his current employment as a bus driver.

Mr Coppola raised the issue of causation and emphasised the lack of complaint to the general practitioner linking these problems with the Woodcroft Tavern incident. Mr Hayes said that once the Panadeine – possibly given to him at the Noarlunga Health Service – ran out, he went to see his general practitioner on 8 November to get more “pain killers”.[126] The records do not confirm this. It is consistent with the known injuries, and the manner in which they were caused by falling heavily backwards and tumbling into the refrigerator door, that the brunt of the fall was taken by the back and upper neck areas. This was therefore likely to produce some upper back and neck problems, especially in the shorter term. It is therefore reasonable to accept there would be consequential back and neck problems. However when reporting to his general practitioner of having a stiff neck on 8 November 2002 and subsequently, they are not related to the Woodcroft Tavern incident. As mentioned, so far as the medical notes indicate, an incident when he was driving a bus in the city on 28 January 2004 appear to have been of much greater concern to him.[127]
[126] Transcript P64 L5-L15.
[127] Transcript P100 L230, Transcript P102 L9.
It is difficult to appreciate the extent and duration of these present complaints could be wholly attributable to this incident in these circumstances. The explanation for failing to report anything of this to either of two general practitioners “I am keeping everything to myself, private things”[128] is far from convincing. Accordingly the probabilities are, as best one can assess them, that approximately half of his problems are related to the Woodcroft Tavern incident.
[128] Transcript P106 L29-L31.
Taking into account these considerations and the opinions expressed in the medical reports, an appropriate award of general damages for pain and suffering and loss of amenities is $30,000, allocated $15,000 to the past and $15,000 for the future. An award of interest on the past general damages is also applicable. Averaged at 4 percent per annum over a period of say five and a third years since the incident, produces a lump sum award of interest of past loss of $1,600: Wheeler v Page. [129]
[129] (1982) 31 SASR 1
As to loss of earning capacity, allowance for the past by way of forgone overtime and other opportunities is appropriate on the evidence. On the basis of the medical evidence there is plainly an incapacity to better himself by pursuing better paid, heavier work. The plaintiff retains full residual capacity for present and past kinds of employ. The inability to accept overtime was not quantified either in terms of time or money lost. Nevertheless the court is required to “do the best it can”: Commonwealth v Amann Aviation Pty Ltd[130] and State of New South Wales v Moss.[131]
[130] (1991) 174 CLR 64 at 83.
[131] (2000) 54 NSWLR 536.
It is not open to find that work in the trucking industry would have provided a higher income. No figures were presented to suggest that would necessarily be the case. One cannot assume it would be more remunerative on the basis of submissions alone. The situation is somewhat different with respect to the mining industry, if only because it is well-known higher rates apply for working in isolated and remote areas. Just how much higher they were was not proved.
As of 30 June 2002 the plaintiff was earning approximately $30,000 net in his then employment, and as of 30 June 2005 he was bringing in close on $36,000 net. A notice of assessment to the year ended 30 June 2006 records a net income of about $34,000. The assessment for 30 June 2007 was $30,000. Average net income over the four financial years involved, was therefore in the order of $32,500 in round figures.
The plaintiff is entitled to damages reflecting in monetary terms the difference between earning capacity as it would have been had there been no injury and earning capacity as it presently stands: Wade v Allsopp,[132] Paul v Rendell.[133] There is an inherent difficulty in assessing what the loss is, essentially because the actual realisable or additional lost earning capacity is very much a question of prediction. On the basis of the medical reports, earning capacity has certainly been diminished by reason of the injuries and their consequences. The lost potential to work for longer hours, or undertake harder and better paid work, is necessarily productive of financial loss: Medlin v State Government Insurance Commission.[134]
[132] (1976) 10 ALR 353.
[133] (1981) 34 ALR 569.
[134] (1994) 182 CLR 1.
It now becomes necessary to value the chance of the plaintiff securing more remunerative work than he has managed to achieve to the present time and to adjust that in order to take due account of adverse contingencies: Fightvision Pty Ltd v Onisforou.[135] Obtaining work in remote areas, particularly in the mining sector is undoubtedly a reasonable possibility for a fit, healthy and relatively young man. Mr Hayes is now pressing 42 years of age. He would have to compete for employment with younger and presumably fitter men. He certainly appeared fit, judging by the photographs taken immediately following these events and he appeared, as best one can judge, to be reasonably fit at the time of trial, although mentally he appeared tense. It is possible that he might have obtained employment in the mining industry, but it was also possible he might not have.
[135] (1999) 47 NSWLR 473.
In the end the court must make a value judgment as to the potential economic benefits that might have been realised had the accident not occurred. Doing the best one can without the benefit of figures as to actual rates paid in the mining sector, it seems reasonable to assess the chances of the plaintiff obtaining more remunerative employment than he now has, were better for a relatively short period of time, whilst he was younger and reasonably fit. On that assumption approximately $10,000 maximum in any one year, after tax, including an allowance for lost overtime, might have been earned over no more than about a ten year period.
Then again there might have been adverse contingencies, such as returning to the city for the purposes of raising a family, growing unhappy with living in a remote area, or to support his wife’s career as a nurse, are some of the contingencies coming to mind. All in all, an award of $45,000 properly reflects the loss of earning capacity, allocated $20,000 to the past and $25,000 to the future. A lump sum award averaged over time of $2,000 will be allowed in pre-paid losses.
Finally, the plaintiff claims an award for gratuitous services supplied by his wife. The evidence here was thin, particularly so far as quantification goes. It was to the effect that she drove him to various medical appointments as he was unable to drive due to pain and she helped to assist him into the car. He no longer assists with routine household chores, namely “gardening, mopping, dressing, cleaning and matters of that kind.”[136] It is quite difficult to appreciate how this form of evidence proves the kind of nursing or domestic assistance attracting an award under this head of damage. No evidence was given of the times involved or any consequential financial detriment to her. Nor was evidence directed to the value of such services. Given the status of this evidence, the plaintiff has failed to prove any measurable damages,[137] or that what was provided went beyond minor changes of domestic routine or attentive care: Luntz: Assessment of Damages for Road Injury and Death (4^th Ed), paragraph 4.6.3. As noted special damages were agreed at $800.
[136] Transcript P235 L22-L25
[137] Griffiths v Kerkemeyer (1977) 139 CLR 161 or Beck v Farrelly (1975) 13 SASR 17.
Aggravated and exemplary Damages
By his pleading the plaintiff lays claim to “aggravated and exemplary damages”, the alleged assault constituting a “contumelious disregard of the plaintiff’s right”. No additional facts or circumstances are identified as founding awards under these heads and none were articulated during the course of closing addresses.
The difference between the two was first recognised in Rookes v Bernard,[138] accepted in Australia in Uren v John Fairfax & Sons Pty Ltd[139] and discussed at length by the High Court of Australia in Gray v Motor Accident Commission.[140] Aggravated damages are awarded to compensate for increased mental suffering when harm is done by a wrongful act, aggravated by the manner in which it was done. Exemplary damages are penal or vindictive in nature, as they are intended to fulfil the objects of punishment, retribution and deterrence. The majority judgment in Gray observed: [141]
[12]Exemplary damages are awarded rarely … not every finding of fault warrants their award.
[15]In considering whether to award exemplary damages, the first, if not the principal focus of the inquiry is upon the wrong done, not the party who was wronged.
[138] [1964] AC 1129 (HC).
[139] (1966) 117 CLR 118.
[140] (1998) 196 CLR 1at [6].
[141] Above.
The High Court returned to the subject in New South Wales v Ibbett,[142] a case involving trespass to property, committed by two police officers. The court upheld an award of aggravated damages in order to protect the interests of the plaintiff against invasion and to protect freedom from disturbance.
[142] (2006) 229 CLR 638.
On the facts of this particular case, the assault on the plaintiff’s version, was completely unprovoked. Salt was rubbed into the wound later when he was chided and belittled by Cole and Naylor facetiously laughing at him and by falsely suggesting a slip on soap or a banana skin. Had those facts been proven, an award of aggravated damages would have been open, and an appropriate award of $3,000 was in order to reflect the unprovoked nature of assault and battery and the deliberate act of humiliation later on. A nominal lump sum of $200 interest will be allowed under this head: BHP v Fisher.[143]
[143] (1984) 38 SASR 50 at 67.
As to exemplary damages, it is evident the police resolved not to prosecute. Therefore the defendant was not brought to book for potentially criminal conduct. The court’s expression of disapproval of the inpugned conducted is not of itself a sufficient reason to award exemplary damages however: State of NSW v Delly.[144] All the same, an award for exemplary damages remains open in addition to the award of aggravated damages, the latter focusing upon wrongdoing otherwise going unpunished. An additional award of $5,000 would have been therefore applicable in the particular circumstances of this case. Section 30C(4)(ab) Supreme Court Act 1935 prevents an award of interest being made in this instance.
[144] [2007] NSWCA 303.
In summary, the proposed award of damages otherwise appropriate had liability been established, tabulates in this way:

Pain and suffering

-       past

$15,000

-       future

$15,000

$30,000

-       interest on past loss

$1,600

$1,600

Loss of earning capacity

-      past

$20,000

-       future

$25,000

-      interest

$2,000

$47,000

Aggravated damages

$3,000

-       interest

$200

$3,200

Exemplary damages

$5,000

Special damages

$800

TOTAL

$87,800

Conclusion

Based on all the evidence the court finds the plaintiff arrived at the drive-in bottle department of the Woodcroft Tavern approximately half a minute before midnight. He ducked slightly under the northern drive-in door which was then being lowered. At first he was insistent on being served and became dogmatic on being refused. The defendant’s employees were unduly defensive of their position and acted peremptorily in dealing with him. Naylor commenced to escort him from the premises, both grabbed each other by the shirt more or less at the same time and a scuffle resulted. The probabilities are that in the course of the ensuing struggle, Mr Hayes tripped over a step or ledge, causing him to fall backwards into the refrigerator door, the momentum of the fall carrying Naylor with him. It has consequently not been proven that the plaintiff was deliberately elbowed to the jaw or cheek. Accordingly, an assault and battery has not been made out. No alternative factual basis of liability in negligence was laid claim to, or proved. Had the plaintiff succeeded, an award of $87,800 would have been made.
Orders of the court
In the result the plaintiff’s claim is dismissed. The parties are entitled to be heard on the question of costs.

Pain and suffering
- past	$15,000
- future	$15,000	$30,000
- interest on past loss	$1,600	$1,600
Loss of earning capacity
- past	$20,000
- future	$25,000
- interest	$2,000	$47,000
Aggravated damages	$3,000
- interest	$200	$3,200
Exemplary damages	$5,000
Special damages	$800
TOTAL	$87,800