Jackson v Jones
[2021] VCC 638
•21 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-19-03765
| John Jackson | Plaintiff |
| v | |
| Michael Jones | Defendant |
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JUDGE: | Her Honour Judge Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 - 31 March 2021 | |
DATE OF JUDGMENT: | 21 May 2021 | |
CASE MAY BE CITED AS: | Jackson v Jones | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 638 | |
REASONS FOR JUDGMENT
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Subject:Battery and negligence
Catchwords: Intentional tort – battery – negligence – general damages – pain and suffering
Cases Cited:Carter v Walker (2010) VSCA 340; Leighton Contractors Pty Ltd v Fox and Others (2009) 258 ALR 673; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 63 ALR 513
Judgment: Judgment for the plaintiff in the amount of $100,000
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Hayes QC Ms S Brenker | Carbone Lawyers |
| For the Defendant | Mr R Middleton QC Ms B Myers | IDP Lawyers |
HER HONOUR:
INTRODUCTION
1The plaintiff, John Jackson, who is 66 years old, claims damages for pain and suffering against the defendant, Michael Jones, for the injuries he sustained as a result of three batteries allegedly committed against him on 27 August 2015, when he attended at the defendant’s premises at 2 Edwards St, Sebastopol to collect his pay and to have the defendant sign a Centrelink Separation Certificate.[1]
[1] Plaintiff Court Book (‘PCB’) 137.
2The plaintiff alleges that when he attended at the pergola of the defendant’s premises, three people were present: the defendant and two independent contractors: Stephen Squire (the defendant’s brother-in-law) and Steven Barnett. The plaintiff alleges that after saying some things to him, the defendant battered him by pushing him into a solid brick wall in the pergola (‘the First Battery’). The plaintiff further alleges that, as he was laying on the ground, Stephen Squire then pulled him up by the right arm, dragged him through the door of the pergola (‘the Second Battery’) out on to the pathway, and threw him onto that pathway (‘the Third Battery’).
3The plaintiff, who is right-handed, went to hospital that evening, with lacerations to the head, injury to the right shoulder in the form of a rotator cuff tear, left hip and left hamstring.[2] He saw his daughter at that time.[3] He also reported the incident to Victoria Police on 1 September 2015.[4]
[2]Transcript of Proceedings, Jackson v Jones (County Court of Victoria, CI-19-03765, Judge Davis, 23-31 March 2021) (‘T’) 99.10-12.
[3] T100.4-8.
[4]The plaintiff reported the incident to Mr Jason Reece, who was then a Constable and is now Acting Sergeant.
4The plaintiff subsequently had surgery to his right shoulder on 4 July 2016 which failed to resolve his symptoms of pain and restrictions of movement. He suffered anxiety and depression as a result of his right shoulder injury and has been unable to work since the incident. He has been left with permanent restriction of movement in the right shoulder which leaves him unable to work, which he loved, or to play darts, which used to be a frequent recreational pastime. The restriction of movement interferes with his sleep, his ability to toilet, shower and dry himself, or to lift things at height. It has also interfered with his ability to enjoy his grandchildren as he could not pick them up. He claims damages for pain and suffering in the sum of $250,000.
5The defendant denies that the plaintiff was his employee, but accepts that, on the day of the incident, the plaintiff arrived at his premises, unannounced, to pick up his pay and to have a Certificate of Separation signed. The defendant denies making insulting comments to the plaintiff. He says that when he arrived the plaintiff took a beer from the fridge, and then threw a punch at him. The defendant put his hands up to block the punch and then, in self-defence, pushed the plaintiff away. He did not see the plaintiff hit the brick wall. The plaintiff then came towards the defendant again but Mr Squire intervened to protect him from harm, and escorted the plaintiff out of the premises. The defendant denies that Mr Squire was his employee, servant or agent.
THE PLEADINGS[5]
[5] I mention only those parts of the pleadings which were ventilated in the hearing.
6In his Further Amended Statement of Claim (the ‘Statement of Claim’), the plaintiff alleges that each of the batteries occurred out of or in the course of his employment with the defendant, and that as a consequence of the three batteries, the plaintiff suffered physical and psychological injury in the form of lacerations to the head; injury to the left hip and left hamstring; injury to the right shoulder; aggravation of injuries to the right shoulder; right shoulder rotator cuff tear; failed surgery syndrome; and anxiety and depression.
7The plaintiff pleads direct liability of the defendant for the First Battery. In relation to the Second and Third Batteries, which the plaintiff says were committed by Mr Squire, the plaintiff alleges that, whether as employer or as principal, the defendant owed the plaintiff attending the premises a duty of care to provide a safe place of work. It is alleged that the defendant breached this duty of care, among other things, by failing to prevent the Second and Third Batteries; permitting Mr Squire to use excessive force in attempting to restrain the plaintiff and eject him from the premises; failing to adequately supervise Mr Squire; failing to provide a safe place of work and a safe system of work; failing to advise the plaintiff not to attend the premises; failing to request that the plaintiff leave the premises after collecting his pay; and failing to provide the plaintiff with time to do so.[6]
[6] The Statement of Claim also contained an alternative pleading, that of alleged breach of the terms
implied into the plaintiff’s contract of employment or engagement with the defendant that the plaintiff be provided with a safe system of work, a safe place of work and appropriate supervision of his work; but this was not the subject of final submissions
8In relation to the First Battery, the defendant alleges in his Defence that he acted in self-defence after the plaintiff threw a punch at him. In relation the Second and Third Batteries, the defendant denies that Mr Squire was an employee, servant or agent of the defendant or that any of his actions constitute the tort of battery. In the event that Mr Squire’s actions constitute batteries, the defendant relies on defence of self-defence, defence of another, or ejectment of a trespasser.
THE HEARING
9The following people gave evidence at the hearing: the plaintiff and his daughter Megan Jackson; the defendant; Stephen Squire (who is the defendant’s brother-in-law); Steven Barnett (another concreter); and Acting Sergeant Reece. The parties tendered court books as well as a number of documents, including a plan of the contents of the pergola as at the date of the incident,[7] as well as photographs of the contents of the pergola taken about a month or so prior to the hearing.[8]
THE EVIDENCE
[7] PCB 146.
[8] Defendant Court Book (‘DCB’) 182.
The alleged batteries
10It is common ground between the parties, among other things, that:
(a) prior to 27 August 2015, the defendant had told the plaintiff that work was drying up;
(b) the plaintiff attended the defendant’s premises at 2 Edwards Street, Sebastopol, at some time between 4pm and 5pm on 27 August 2015;
(c) the plaintiff walked into the pergola area of the defendant’s premises though the pergola door;
(d) Exhibit J is a fair representation of the pergola area (apart from the issue as to whether or not, as at 27 August 2015, there were sofas adjacent to the brick wall as shown in Exhibit H);
(e) inside the pergola were the defendant, Mr Squire and Mr Barnett;
(f) the defendant, Mr Squire and Mr Barnett had been drinking;
(g) Mr Squire and Mr Barnett were seated at tables in the pergola;
(h) a brick wall separated the pergola from the defendant’s residence;
(i) when the plaintiff entered the pergola, the defendant was on the phone to his mother;
(j) the plaintiff walked to the fridge at the end of the pergola and helped himself to a beer;
(k) the plaintiff then walked over to the tables;
(l) at all times immediately prior to the physical altercation, the plaintiff was positioned between Table 1 and the brick wall;
(m) the defendant and Mr Squire were positioned close to the plaintiff;
(n) the plaintiff put a Centrelink Separation Certificate on the table in front of or near the defendant;
(o) a physical altercation took place involving the plaintiff, the defendant and Mr Squire;
(p) the defendant pushed the plaintiff;
(q) the plaintiff was taken out of the pergola by Mr Squire;
(r) the plaintiff subsequently re-entered the pergola;
(s) the path from the driveway to the pergola was not paved and consisted of gravel/blue metal;
(t) the defendant gave the plaintiff his pay in cash; and
(u) the plaintiff subsequently left the property.[9]
The plaintiff
[9]T90-97; T114.9-10; T149.14-17; TT167.14-186.27; T189.2-6; T272-276; T339.14-16; T345.8-9; T374.10-375.19; T382.20-31; T383.10; T383.22-23; T388-389; T415.3-419.14-18; T468-471; T492-498; PCB 294-295.
11The plaintiff’s evidence was to the following effect.[10]
[10] T61.14-157.27; T161.22-241.28.
12He left school halfway through Form 4 and worked mainly in manual jobs, including as a concreter. He suffered a work-related shoulder injury in about 2001/2002.
13He started working for the defendant in around 2003. Although he had his own ABN number and was responsible for his own taxation and superannuation payments, he was an employee of the defendant, working almost exclusively for him, between 20 and 25 hours per week, between 2010 and 2015. He, and others working for the defendant, would pick their pay up in cash, based on an hourly rate, from the pergola attached to the defendant’s home, usually on Thursdays. It was not uncommon for workers to have a beer together at that time. In the weeks prior to August 2015, the plaintiff was told by the defendant that less work was coming in, and therefore that there may be no further work available for him to do. He last worked for the defendant some time after 13 August 2015, and attended at the pergola on 27 August 2015, in order to receive his pay for the work completed by him in the previous week, and in order to have the defendant sign a Centrelink Separation Certificate so that he could claim unemployment benefits.
14When he entered the pergola, the defendant was standing to his left, speaking loudly on the phone. Mr Squire and Mr Barnett were seated at the table, but further away from the door. There were no leather couches in the pergola at all, and certainly none in front of the brick wall at the time of the incident.
15Upon entering the pergola, he walked directly to the fridge and took out a can of beer. He then walked back towards Mr Squire near the middle of the tables. He heard the defendant say “I’m over it” on the phone, and replied “you’re always over it Mick”. He then walked towards the defendant, asked him to sign the Centrelink Separation Certificate and put it on the table. The defendant said “I might”, and then made a series of derogatory comments about the plaintiff’s family. The plaintiff decided to leave and walked towards the pergola door. The defendant approached him and pushed him from the side into the brick wall. The plaintiff hit the brick wall with his right shoulder and head. He fell to the ground and lay in a foetal position. Mr Squire lifted him up by his right arm, dragged him by that arm to the pergola door, and then propelled him out of the door of the pergola. He landed on all fours on the blue metal path outside the pergola door. The defendant walked out of the pergola and threw an envelope at him, saying “here’s your fucking wages”. The plaintiff got up, walked back in through the pergola door, and again asked the defendant to sign the separation certificate. The defendant said “he might”. The plaintiff was “sort of in shock”,[11] left the premises and drove home.
[11] T187.11-12.
16He stayed at home for some time. His housemate asked to borrow his car, and the plaintiff agreed but asked him first to fetch some beers for him, which the housemate did. Later, when it was dark, the plaintiff decided he needed some cigarettes, and he walked to the shops. He felt unwell at the shop, and was told by a woman there that he should go to hospital. On his walk home, he felt unwell and asked a bystander to drive him to hospital.
17The plaintiff’s daughter attended at the hospital that evening and picked him up.
18Five days after the incident, the plaintiff left his bed to report to police in Ballarat that he had been assaulted by the defendant. He was briefly interviewed by Mr Reece, who took a few notes and then told him that, as it was three versus one, the truth would stay in the middle. This was the last the plaintiff heard from police.
19The plaintiff disputed some of the matters raised in Mr Reece’s letter to VOCAT. He said that he had been in bed for five days prior to seeing Mr Reece and had not been drinking; that his conversation with Mr Reece only lasted five to six minutes; that his eyes were always red because he suffered from dry eye; that he knew who had assaulted him and that he did not tell Mr Reece that both Mr Squire and Mr Barnett assaulted him. He said he was never asked by Mr Reece to supply a medical report and that the police did not contact him again.
Hospital records
20The clinical notes of Dr Murphy at Ballarat Base Hospital on 27 August 2015 record the plaintiff’s attendance as follows[12]:
60 yo [male] presents in R[ight] Shoulder pain & L[eft] hip pain (buttocks & post thigh) after stated assaulted at/argument w[ith] boss/post altercation). 1600 today … Was pushed into brick wall & hit his L[eft] occiput. Also hit on shoulder [R]ight & has sore hip post. Also 2.5cm very superficial lac to [L]eft occiput. Closed w[ith] glue.
Unsure but unlikely LOC. Had 2-3 drinks ETOH prior. Went home, had dinner, then had 2-3 more drinks & went to walk to servo to get cigarettes but had ↑ pain in L[eft] buttock. Came to ED. … Cranial nerves NAD. Midline C spine tenderness. Moving neck in all directions despite asking him not to.
UL neuro – power 5/5 R=L through ↑ pain in shoulder on R[ight]. Sensation grossly intact. LL neuro power power 5/5 R=L. Sensation grossly intact. Other extremity injuries. R[ight] shoulder ↓ ROM 2°[,] pain. obv deform. NVI, tender over deltoid & anterior shoulder. L[eft] hip sore. Tender buttock + hamstrings. C Collar until radiology. … tt REL VL/LL.
[12] PCB 267.
21The nursing handover notes of the same day recorded[13]:
Pt presents to ED post alleged assault @ 1600 hrs. Pt was pushed into brick wall – hit L[eft] side head. LOC for “a few seconds”. Woke up on ground w[ith] painful head/[R]ight shoulder/L[eft] & R[ight] buttocks. Pt went home post assault, walked to local service station to buy pack of smokes & drank approx. 4x beers. O/A pink, alert. L[eft] pupil 3mm, R[ight] pupil 4mm. Both reactive to light, SOB speaking full sentences. 1cm lac L[eft] scalp non-active bleeding. Awaits rlv by ED Dr. – Keen (Elson). Strong R[ight] radial pulse neuro vasc intact ↓ ROM R[ight] arm. LT, xray. “c” – collar insta. 220: analgesic charted but refuses analgesic. V/A NAD. 2235: ADT given … .
The defendant
[13] PCB 268.
22In his Answers to Interrogatories sworn on 18 July 2020,[14] the defendant stated that he was on the phone when the plaintiff entered the pergola, and that the plaintiff seemed agitated. The plaintiff dropped the Centrelink Separation Certificate on the table in front of him and asked him to sign it. The plaintiff then went to the fridge and took out a beer. After the defendant finished his phone call the plaintiff came over and threw a punch at the defendant, which the defendant blocked, and then the defendant pushed the plaintiff away. The plaintiff stumbled backwards into the brick wall. After hitting the brick wall, the plaintiff came at the defendant “to have another go”.[15] Mr Squire took hold of the plaintiff and took him outside.
[14] PCB 24-25.
[15] T358.19.
23The defendant’s evidence before me was to the following effect.[16]
[16] T258.20-T364.7; T365.29-T384.29.
24Although he did not have a docket from the plaintiff and so could not be certain, it was possible that the plaintiff had worked for him on 25 August 2015 and that he attended the defendant’s premises on 27 August 2015 to collect his pay.
25When the plaintiff arrived, the defendant was seated at the end of the table closest to the door, facing the direction of the fridge, talking to his mother on the phone. Mr Barnett was at the other end of the table. Mr Squire was seated on the side of the table, with his back to the brick wall. At the time of the incident, there were leather couches situated against the brick wall.
26The plaintiff came in smelling of alcohol, then went to the fridge and pulled out a stubbie. As the plaintiff walked past the defendant, he threw the Centrelink form on the table and asked the defendant to sign it. The defendant asked the plaintiff to quieten down as the plaintiff was talking loudly. He finished the call with his mother. He denied making any derogatory remarks to the plaintiff about the plaintiff’s relatives. The plaintiff then came towards the defendant and threw a punch at him. The defendant stood up and pushed the plaintiff away. He did not see the plaintiff hit the brick wall, but admitted it was quite possible that, given the height of the sofas, the plaintiff hit the wall after landing on the sofas. The plaintiff then threw another punch at the defendant, connecting with his nose.
27Mr Squire grabbed the plaintiff by putting his arms around the plaintiff’s chest and escorted him out the pergola door. The defendant denied seeing Mr Squire grab the plaintiff by the right arm. The defendant did not see the plaintiff when he had gone out of the pergola door. But a short time later the defendant stood and watched Mr Squire walk the plaintiff through the gate, into the work yard, and did not see the plaintiff after that. After some prompting by his counsel, the defendant then said that the plaintiff came back to apologise. The defendant said he believed that he gave the plaintiff his pay when the plaintiff was told to leave the premises.
28The defendant acknowledged that the request by the plaintiff to sign the Certificate of Separation was made on the day of the incident, and that the plaintiff left that document with him on that day. The defendant could not recall when and how the plaintiff obtained the signed Certificate, but stated that the defendant’s wife, son, or daughter could have taken it to him.
29The defendant maintained that he did not provide his workers with uniforms, but admitted that the Begonia Concreting shirt exhibited by the plaintiff belonged to him. The shirt was part of a number of shirts he had had made, largely for advertising, which were stored in his shed.
30The defendant was contacted by police in regard to the incident and interviewed by phone. The police officer said he was required to follow up on the plaintiff’s allegations, and asked the defendant whether the plaintiff was a drinker. The defendant said he was, and the police officer told him that he had smelled alcohol on the plaintiff when interviewing him. The police officer told the defendant that he would not be hearing any further from the police.
Mr Squire
31The evidence of Mr Squire was to the following effect.[17] The defendant was seated at the end of the table facing the direction of the fridge. Mr Squire was seated next to the defendant, but on the side of the table with his back to the brick wall. Mr Barnett was seated across the table, facing the brick wall, about four seats away from the defendant. The plaintiff knocked on the door and Mr Squire let him in. The plaintiff grabbed a beer from the fridge. The plaintiff was acting aggressively towards the defendant and swung a punch at him. The defendant pushed the plaintiff away and the plaintiff stumbled backwards three, four or five steps. The plaintiff left, then returned, apologised, and less than five minutes later, threw a second punch at the defendant, which struck the defendant’s nose. Mr Squire then put the plaintiff in a bearhug and escorted him out of the pergola.
[17] T385.1-430.14.
32Mr Squire denied that the plaintiff hit the brick wall and was on the ground. He also denied that he grabbed the plaintiff by the right arm, dragged him out of the pergola and threw him onto the path. Mr Squire was “pretty sure” [18] the sofas were located against the brick wall in the pergola at the time of the incident.
Mr Barnett
[18] T424.12-14.
33Mr Barnett made a statement dated 30 December 2015 as follows[19]:
My name is Steven Barnett. I confirm that the investigator has informed me that this ls a voluntary process, that l may have a support person present and of the possible uses of this statement.
I work for Michael Jones as a concreter and have done for about 4 years. I have known John throughout that time.
On the day of the incident, l was sitting at Michael's. John had not worked for a couple of weeks because it was a bit quiet. John came in with an attitude while Michael was on the phone to his mother. John went to the fridge and grabbed a beer. He made a couple of smart comments and walked toward Michael and confronted him. Mick stood up and pushed John away.
John tried to swing a punch at Michael and Steve and I grabbed him and dragged him away. A few minutes later. John walked back in and apologised and shook my hand and Steve's hand and left.
I have seen John around town but he has not worked since that time, although he has advised me that he had involved the police. l told him l wanted to stay out of it.
John has always had injury issues. He always complained about sore shoulders and back. There were many activities he could not do because of it.
He once told me he had seriously injured a shoulder moving a stove in his previous role installing kitchens.
[19] PCB 294-295.
34In his evidence before me,[20] Mr Barnett stated that he worked for the defendant on the day of the incident and had been there for about 45 minutes before the plaintiff arrived. At that time, Mr Barnett was seated on the far end of the table near the fridge. The defendant was seated at the opposite end of the table, near the pergola door. Mr Squire was seated about halfway between them, but closer to the defendant, with his back to the brick wall. The plaintiff walked in, grumpy and agitated, and went to the fridge to get a beer. The plaintiff stood between the defendant and Mr Squire while the defendant was on the phone. When the defendant got off the phone, he and the plaintiff had an argument. The plaintiff was almost yelling at the defendant. The defendant stood up and said: “go, just go away, I’m not putting up with this”.[21] The plaintiff went to throw a punch at the defendant. The defendant blocked the punch and pushed the plaintiff away. The plaintiff fell to the ground. Mr Barnett could not recall the plaintiff hitting the brick wall. The plaintiff got up and rushed back towards the defendant. Mr Squire “wrapped up” the plaintiff and escorted him out the back door.[22] Mr Barnett did not go out of the pergola, but he saw the defendant go out of the door with an envelope. He did not recall the plaintiff coming back in after Mr Squire escorted him out.
Acting Sergeant Reece
[20] T461.13-511.23.
[21] T469.26.
[22] T470.27-471.5.
35Acting Sergeant Reece gave evidence confirming that the plaintiff reported the alleged assault to him on 1 September 2015.[23] He said that he took notes at the time but did not type them up. The notes of his conversations with the parties and the witnesses had been filed away somewhere. This was because after investigating the complaint by speaking to the defendant, to Mr Squire and Mr Barnett, he was unable to made contact with the plaintiff.
[23] T431.6-447.8.
36He confirmed that on 22 September 2015 he wrote to VOCAT in response to the plaintiff’s application for an award of compensation in the following terms[24]:
On Tuesday the 1st September 2015 Mr John Alan JACKSON attended at the Ballarat Police Station.
Mr JACKSON reported that on the 27th August 2015 at about 5.00pm he had been unlawfully assaulted by former work colleagues. Mr JACKSON presented to the station in what I believe to be an alcohol effected state. Mr JACKSON presented with the smell of alcohol on his breath and his eyes were red. Leading Senior Constable Jack DWYER also made the same observations.
Mr JACKSON stated that he had received injuries due to the assault. Mr JACKSON stated that he had suffered a shoulder injury, a laceration to the back of his head, sore neck and a strained left hamstring. Mr JACKSON did state that he did have an old existing shoulder injury. Mr JACKSON stated that he had consumed alcohol before attending at the colleagues address, he stated he had consumed approximately three or so beers. Mr JACKSON stated that there were two other former work colleagues present at the time of the assault and was not able to rule them out as the person who assaulted him.
Police have since spoken to the other males that were present at the time of the alleged assault. Police have spoken to Michael JONES, who is JACKSONS previous employer and the person JACKSON has nominated as the offender. Police have also spoken to Steven BARNETT and Stephen SQUIRE. BARNETT and SQUIRE both stated that Mr JACKSON had turned up to JONES'S in an alcohol effected state and in. a bad mood. They both stated it appeared that Mr JACKSON was angry with JONES due to there being lack of work and JONES was in the process of laying Mr JACKSON off.
Mr JACKSON had also stated that SQUIRE and BARNETT had assaulted him but changed his story when questioned further about the incident. All parties stated that Mr JACKSON had turned up to JONES address alcohol effected and in a bad mood.
Mr JACKSON has not contacted police since reporting the assault to make a statement. Police have made several attempts to contact Mr JACKSON so he could make a statement. Police have made several attempts to contact Mr JACKSON so he could make a statement. Mr JACKSON has made multiple excuses not to attend the police station. Mr JACKSON had no visible injuries when he presented at the Ballarat Police Station. Mr JACKSON also continually makes excuses not to supply a medical report from his doctor.
The incident is still in the investigation stage to determined the exact nature of what occurred. Medical reports are to be obtained from the Ballarat Base Hospital.
Due to Mr JACKSON constantly changing account of events, his refusal to make a statement or provide details and the conflicting accounts of all other parties at the incident nil assaults or offence took place.
[24] PCB 178-179.
37In cross-examination, Mr Reece agreed that the reference in his letter to the plaintiff changing his story meant that, at one point, the plaintiff implicated the defendant and perhaps Mr Squire in the assault, and at another point also implicated Mr Barnett. He said that his letter “would reflect [his] notes”.[25] He denied telling the plaintiff, who wanted to press charges against the defendant and Mr Squire, that he was unlikely to succeed. He was taken to the defendant’s oral evidence to the effect that after obtaining the defendant’s version of events Mr Reece told the defendant that he would not be hearing any further from police. Mr Reece said he did not recall saying that.
[25] T444.11-14.
38I note that on 22 March 2017, VOCAT made an award of compensation to the plaintiff in the sum of $1,300, in respect of the injuries suffered by him during the incident.[26]
[26] PCB 138-40.
DEFENDANT’S SUBMISSIONS
39The defendant’s submissions were to the following effect.
Liability
40The evidence does not support the allegations made in the Statement of Claim. It is unclear as to which of the three alleged batteries is said to be responsible for the plaintiff’s shoulder injury.
41The plaintiff’s evidence is inconsistent with the contents of the Ballarat Base Hospital Progress Notes of 27 August 2015, with the evidence of Megan Jackson, and with the statement of Acting Sergeant Reece.
42There are two distinct versions of the incident: that of the plaintiff on the one hand, and that of the defendant and two lay witnesses on the other. The plaintiff’s credit is damaged by a number of matters. He was convicted of perjury in 1976 and admitted he had a drinking problem and has had four .05 charges up to 2017. He failed to disclose his pre-existing right shoulder problems to various doctors. He asserted that he was able to keep working after his 2001 right shoulder injury but it was clear that he received weekly payments for 135 weeks from 2001 to 2007. He did not submit taxation returns for the period 2010 to 2015 until 2017. At best, the plaintiff is a most unreliable witness, and, at worst, “a liar who cannot be believed on relevant issues”.[27]
[27] Additional Outline Closing Submissions of the Defendant (‘Defendant Submissions’) [40].
43On the other hand, the defendant and lay witnesses were “uniformly solid in their general description of the incident, albeit with some minor differences which can be explained by the effect of time on memory”.[28] Their evidence was to the effect that the plaintiff was aggressive and confronting and instigated the incident by throwing a punch at the defendant, who responded by pushing him away. The defendant denied making the derogatory remarks alleged by the plaintiff; Mr Squire and Mr Barnett did not recall hearing him make such remarks; and it was improbable that such remarks would have been made given that the daughters of the plaintiff and defendant were good friends.
[28] Defendant Submissions [13].
44The plaintiff’s description of hitting the brick wall is at odds with the evidence that they did not recall him doing so, although Mr Barnett believed that the plaintiff fell to the ground.
45The defendant and Mr Squire said in their evidence that the plaintiff threw a second punch at the defendant which caused a scratch on his nose. Although Mr Barnett said there was no second punch, he stated that the plaintiff came again at the defendant when Mr Squire intervened. The three men said that the plaintiff was ejected from the premises by Mr Squire who grabbed him in a bear hug from behind.
46The plaintiff’s evidence about the system of work in relation to the way invoices were generated and paid should be rejected in favour of that of the defendant, Mr Squire and Mr Barnett.
47On key matters, the four witnesses called on behalf of the defendant gave evidence which is both consistent and plausible.
Employee or independent contractor?
48While the indicia of control and equipment and intention are neutral on this question, the arrangements concerning remuneration and taxation, along with the plaintiff’s own belief that he was an independent contractor, favour a finding that he was an independent contractor and not an employee.[29]
[29] Defendant Submissions [47]-[50].
49This reasoning also applies to Mr Squire.[30] However, if Mr Squire is found to be an employee of the defendant at the time of the incident and the court accepts the plaintiff’s version of the incident and finds that Mr Squire committed a battery against the plaintiff, the defendant is not vicariously liable for Mr Squire’s actions, as these were against both the requirements and interests of the defendant, who did not create the circumstances in the necessary legal sense (i.e. power, control and intimacy, etc) to connect the assault/battery to the employment.[31]
[30] Defendant Submissions [51].
[31] Defendant Submissions [58].
Damages
50The plaintiff suffered a significant right shoulder injury in October 2001, when he pulled a car windscreen out of a rack and it slipped, pulling down on his right shoulder. A Medical Panel on 20 September 2007 found that he suffered from “persisting symptoms following a rotator cuff injury of the right shoulder”, with evidence on MRI scan of mild supraspinatus tendinopathy, with a partial supraspinatus tendon tear.[32]
[32] These findings were referred to in the Medical Panel opinion of 2017. PCB 251-252.
51The defendant, Mr Squire and Mr Barnett said that he complained regularly of right shoulder problems prior to the incident. The plaintiff admitted that prior to the incident he had some restrictions in lifting heavy equipment and that he could not perform screeding.
52The plaintiff was unable to say how long he took painkillers for after the incident but, in any event, agreed that he has not taken prescription medication for pain for a long time, that he does not receive physiotherapy, and that he does not suffer right shoulder pain but takes Panadol for gout. He has had no further examinations of his right shoulder since 2017.
53The plaintiff is to be criticised for not obtaining a medical report from a general practitioner, Dr Pedi, who treated him during the period August to November 2015. He also failed to give full histories to treating and medico-legal experts about his pre-existing right shoulder problems which resulted in 135 weeks of incapacity between 2001 and 2007 as well as weekly payments totalling $65,013.
54In relation to the alleged psychological sequelae of the incident, it is relevant that the plaintiff suffered significant psychological problems in 2012 when he was hospitalised after a suicide attempt.
55Importantly, the Statement of Claim does not specify which of the three alleged batteries caused his right shoulder injury, and the plaintiff’s own evidence in relation to this issue was confused. It is therefore difficult to ascertain the extent to which the incident contributed to the plaintiff’s current right shoulder impairment.
56For these reasons, even if liability is established, at worst the defendant is liable for the aggravation of pre-existing but symptomatic right shoulder injury caused by the incident, and the appropriate quantum of damages is the sum of $80,000.
LEGAL PRINCIPLES
57The tort of battery comprises a voluntary, intentional, direct act by the defendant which causes physical contact with the plaintiff. The tort of battery does not require that the defendant intended the plaintiff any harm. [33]
[33] Carter v Walker (2010) VSCA 340 [215].
58In order to establish battery, the plaintiff must show that:
· a direct act of the defendant had the effect of causing contact with the body of the plaintiff; and
· the defendant intended to physically contact the plaintiff.
59Where a battery is established, the perpetrator is liable to compensate the victim for the immediate harm and for the natural and probable consequences flowing from it.[34]
[34] Ibid.
60In this case, the First Battery is pleaded against the defendant. The tort will be made out where the above elements are satisfied, regardless of the nature of the employment relationship between the parties.
61The Second and Third Batteries are alleged to have been committed by Mr Squire. The defendant contends that Mr Squire was an independent contractor at the relevant time. The plaintiff alleges that the defendant is responsible for the batteries committed by Mr Squire because, as the plaintiff’s employer, the defendant failed to adequately supervise Mr Squire so as to prevent him committing these batteries. In the light of this pleading, no issue of vicarious liability arises in relation to the Second and Third Batteries.
62In relation to the Second and Third Batteries, it is necessary for the plaintiff to establish that the batteries breached a duty owed to him by the defendant, whether as employee or as independent contractor.
63At law, employers have a non-delegable duty to provide a safe system of work, and safe place of work, for their employees and to take reasonable care is taken for the safety of their employees. This includes a duty to supervise the work being performed. This duty is a more stringent obligation than a duty to take reasonable care to avoid foreseeable risk of injury to a person to whom a duty is owed.[35]
[35] Leighton Contractors Pty Ltd v Fox and Others (2009) 258 ALR 673 [21].
64I note that, even if the plaintiff is treated as an independent contractor, the cases recognise that, in some circumstances, a principal will come under a duty to retain and exercise a supervisory power over that independent contractor and other independent contractors.[36]
[36] Ibid [20].
65Regardless of whether the plaintiff is an employee or independent contractor, the defendant’s duty to retain and exercise supervisory power over his independent contractors will be breached if the defendant fails to supervise them so as to prevent injury to another employee or independent contractor caused by one of the defendant’s independent contractors, provided the risk of injury is reasonably foreseeable in the circumstances.[37]
[37] Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 63 ALR 513, 536-537.
66The Second and Third alleged Batteries were part of the same sequence of events and occurred very close together in time. I have therefore dealt with them together below.
FINDINGS AND REASONS
The plaintiff as a witness
67I found the plaintiff to be an earnest witness, who gave his evidence in a measured fashion. He acknowledged his prior conviction for perjury and sentence of imprisonment in 1976 and said that he was 21 years old at the time, that it was a bad mistake and that he had turned his life around since then.[38] He acknowledged that he has had a problem with alcohol and that he had a number of convictions for drink driving up to 2017.[39]
[38] T154.23-27; T155.14-16; T165.8-11; T165.23-28; T155.20-22.
[39] T166.2-14.
68Although it is clear that the plaintiff did not inform his treating surgeon, Mr Spencer, of his right shoulder injury in 2001, I note that a number of doctors (Mr Douglas Gardiner,[40] Assoc Prof Goldwasser,[41] and Dr David Ho[42]) took the prior right shoulder injury into account when assessing the impact of the incident on him. Moreover, the plaintiff agreed that, due to his pre-existing right shoulder issues, he could not lift heavy equipment and could not perform screeding when working for the defendant.[43]
[40] PCB 92, 95.
[41] DCB 30.
[42] DCB 41.
[43] T209.4-18.
69I attach little weight to 37 minutes of video surveillance tendered by the defendant as these were filmed prior to the plaintiff’s failed right shoulder surgery.[44]
[44] The defendant admitted that 29 hours of surveillance film was taken over 6 days in March and April
2016.
70The plaintiff gave unchallenged evidence concerning the impact on him of the aggravation of his pre-existing right shoulder injury which followed the incident. He also gave unchallenged evidence (as did his daughter Megan) that he became very depressed as a consequence of not being able to work after the incident.[45] I note that the plaintiff’s complaints are consistent with the medical evidence which is summarised below.
[45] T112.6-11; T250.21-27.
71The plaintiff was cross-examined for more than a day and did not contradict his evidence in chief in any material way. I note that his account of being assaulted by the defendant was consistent with what he told his daughter and the Ballarat Hospital on the night of the incident and through the numerous medico-legal attendances on doctors he has made since that time. It is also consistent with Mr Barnett’s statement that after the plaintiff made smart comments to the defendant, the defendant stood up and pushed him away. I note, however, that his version of events differs markedly from that of the defendant, Mr Squire and Mr Barnett. I will address these issues in relation to each of the alleged batteries.
The First Battery
It is common ground that: the plaintiff attended the defendant’s premises at 2 Edwards St, Sebastopol on 27 August 2015 at some time between 4pm and 5pm, the defendant and Mr Squire were positioned close to the plaintiff, and the plaintiff was between them and the brick wall of the premises, such that the defendant was in a position to push the plaintiff into the brick wall and Mr Squire was nearby to intervene.
72The various accounts of the incident given by the witnesses has been outlined above. Having considered all the evidence, I am satisfied on the balance of probabilities for a number of reasons that the physical altercation commenced with the defendant pushing the plaintiff, that is, committing the First Battery.
73First, given the plaintiff’s reliance on the defendant on that day for his pay and for the defendant to sign his Separation Certificate, it would be against his interests to assault the defendant, and thus it is improbable that he did so prior to being pushed. The plaintiff conceded that he may have said something smart to the defendant at the time he asked him to sign the Separation Certificate.[46]
[46] T91.18-19; T173.10-12.
74Second, the plaintiff’s account is consistent with Mr Barnett’s statement dated 30 December 2015 to the effect that, after the plaintiff made a few smart comments, the defendant stood up and pushed the plaintiff away. I consider that Mr Barnett’s statement, made only months after the events in question, is more reliable in this regard than his evidence in court, which was that the plaintiff went to throw a punch at the defendant, who blocked it and pushed the plaintiff away.
75Third, the plaintiff’s account of having been assaulted by the defendant has been consistent for the past 6 years in all the medical reports.
76Fourth, the plaintiff’s account is consistent with the fact that he went to Ballarat Base Hospital on the night of the incident and is consistent with the hospital records[47].
[47] PCB 262-269.
77Fifth, I have reservations about some aspects of Mr Squire’s account of the incident in the pergola. This is because of his relationship with the defendant and the inherent improbability of his evidence before me (which was contradicted by the defendant and Mr Barnett) that the plaintiff left the pergola after stumbling backward, then returned to the pergola five minutes later, apologized and threw a second punch at the defendant.
78I am satisfied on the evidence that as a result of the push by the defendant, the plaintiff hit the brick wall in the pergola, injuring his right shoulder. I note that the first mention by the defendant or Mr Squire concerning the presence of sofas against the brick wall on the day of the incident was during their evidence at trial. The defendant’s evidence to this effect is inconsistent with his admission in his answers to interrogatories that the plaintiff stumbled backwards into the brick wall.[48] In his oral evidence, Mr Barnett said he could not recall whether the couch was there.[49]
[48] PCB 24-25.
[49] T501.19-22.
79I also note that the oral evidence of the defendant, Mr Squire and Mr Barnett are not consistent with the plaintiff suffering any injury to his right shoulder, left leg and head. If the plaintiff had merely swung two punches, one of which slightly connected, and was escorted out by a bear hug, he would not have needed to go to hospital and the radiological reports would not have recorded a rotator cuff tear.
80Finally, I consider that the statement of Acting Sergeant Reece adds little to the resolution of the issues in dispute. It contains no admissions by the plaintiff and, absent Acting Sergeant Reece’s handwritten notes, merely represents a synthesis of his discussions with the plaintiff, the defendant and other witnesses.
81In the light of my findings above, it is not necessary to consider the defence of self-defence.
The Second and Third Batteries
82The plaintiff’s evidence was to the effect that, after hitting the brick wall, he lay on the floor in a foetal position, and was grabbed and lifted up by Mr Squire, dragged by the right arm to the pergola door, and then thrown out of the premises, landing on all fours on the blue metal path.
83In his answers to interrogatories, the defendant stated that after hitting the brick wall, the plaintiff came at him, to ‘have another go’, that the plaintiff threw a punch at him which caused a scratch to his nose, and that then Mr Squire took hold of the plaintiff and took him outside.[50] The defendant’s evidence before me was to the effect that after the plaintiff threw another punch at him which got him on the nose, Mr Squire grabbed the plaintiff around the chest and escorted him out of the pergola door. The defendant denied seeing Mr Squire grab the plaintiff by the right arm.
[50] PCB 24-25.
84Mr Squire said in his evidence that after being pushed by the defendant, the plaintiff stumbled back a few steps, then left the pergola, then returned five minutes later, then threw a second punch at the defendant, which hit the defendant on the nose, and that then Mr Squire put the plaintiff in a bearhug and escorted him out of the pergola. Mr Squire denied throwing the plaintiff onto the path.
85In his December 2015 statement, Mr Barnett said that the plaintiff made a couple of smart comments and confronted the defendant before the defendant stood up and pushed him away. As the defendant did so, the plaintiff tried to swing a punch at the defendant, and then Mr Squire and Mr Barnett grabbed the plaintiff and dragged him away. In his oral evidence, Mr Barnett said that after being pushed by the defendant, the plaintiff fell backwards to the ground, then got up and rushed back towards the defendant, whereupon Mr Squire put his arms around the plaintiff and escorted him out of the pergola door.
86There was general consensus that Mr Squire had intentional physical contact with the plaintiff after the plaintiff was pushed against the brick wall. I accept that the physical contact comprised Mr Squire taking hold of the plaintiff, including by his right arm, and propelling him out of the pergola door.
87The defence alleges that Mr Squire’s conduct was lawfully justified on the grounds of defence of the defendant, or the use of reasonable force to eject the plaintiff as a trespasser, from the premises. The plaintiff alleges that the force used was excessive.
88Examination of the evidence concerning the circumstances in which Mr Squire took hold of the plaintiff leads me to the following conclusions. The plaintiff’s claim that he never threw a punch at the defendant is at odds with the evidence of all of the other witnesses. Each of them swore that the plaintiff swung a punch at the defendant, prior to Mr Squire intervening and taking hold of the plaintiff. It is immaterial whether the punch actually connected with the defendant (as the defendant and Mr Squire claimed), or not (as appears to be the evidence of Mr Barnett both in his statement and before me).
89I consider that the actions of Mr Squire in using his arms to take hold of the plaintiff and forcibly escort him from the premises, whether by the right arm or using a bear hug, was a timely and proportionate response in the circumstances to the plaintiff punching, or attempting to punch, the defendant. For these reasons, I find that Mr Squire’s conduct was lawfully justified on the grounds of defence of the defendant.
90For these reasons, the plaintiff’s claim in respect of the Second and Third alleged Batteries fails.
91In the light of this finding, it is not necessary to determine whether the plaintiff was a casual employee or an independent contractor at common law.
Pain and suffering consequences
Issues
92The plaintiff claims to have sustained a number of lasting injuries as a consequence of the three alleged batteries: aggravation, through a rotator cuff tear, of pre-existing injury to the right shoulder; failed surgery syndrome; and anxiety and depression. The injuries to the head and left hip resolved, but the others did not.
93I have found that the First Battery is made out. I have found that the plaintiff has failed to make out the Second and Third Batteries.
94The defendant is only to be held liable for the injuries caused to the plaintiff by his conduct, that is, the conduct in pushing the plaintiff into the brick wall of the pergola, and not for the injuries suffered as a result of the intervention by Mr Squire.
95Determination of the appropriate quantum for pain and suffering damages is complicated by the fact none of the expert medical opinion apportions injury specifically to each battery. Rather, the opinion refers globally to the “workplace incident”, and its sequelae, even in circumstances where a history is given of the incident comprising both the pushing of the plaintiff into the brick wall, and the pulling of the plaintiff by the right arm.
96I have done the best I can to take this into account when determining the appropriate quantum of damages.
97I am satisfied that being pushed into the brick wall of the pergola by the defendant was a cause of his injuries and pain and suffering. His evidence concerning the impact of the incident upon him was unchallenged and was largely supported by the radiology and the expert reports tendered by the parties. I accept his evidence and the conclusions of the experts canvassed below.
Evidence
98MRI of the right shoulder on 10 September 2002 was reported as follows[51]:
Mild tendinopathy change affecting the supraspinatus with a slight increase in signal seen in the tendon itself … which appeared thin … strong suspicion of a partial thickness tear on the under surface of the tendon proximally 8mm from the insertion … [t]here is also a small joint effusion, with fluid present in the subscapularis bursa, with a further small amount of fluid also seen within the biceps sheath … small tear in the infero-anterior labrum.
[51] DCB 36.
99Ultrasound of the right shoulder on 10 November 2015 was reported as follows[52]:
Complete rupture of the rotator cuff, including a complete tear of the subcapsularis and supraspinatus and a partial-thickness tear of the infraspinatus with a tear of the long head of biceps tendon.
[52] PCB 86, 124.
100MRI of the right shoulder on 16 January 2017 was reported as follows[53]:
Attempted repair of supraspinatus … (defect is 5 cm long, 4 cm wide) … and subcapularis (defect … 3 cm long, 2.5 cm wide) … tendons has failed with full thickness, full width defects of both tendons.
[53] PCB 127-128.
101The plaintiff took Endone for days after the incident. He was ruled unfit for work from 1 September 2015 by his then treating general practitioner, Dr Varni Peddi until late January 2016. From November 2015, the plaintiff also saw another general practitioner, Dr Keshavarz, for pain management and Workcover certificates.
102I accept that prior to the incident, between 2010 and 2015, the plaintiff was able to work regularly for the defendant for between 20 and 25 hours per week. He was able to perform all the usual activities of a concreter apart from screeding and lifting and holding heavy machinery.
103After the incident, the plaintiff was unable to return to work due to the right shoulder pain and restriction of movement, and he remains unable to work for the same reasons. He was disappointed that he could not work and felt down. His general practitioner prescribed analgesics and referred him to an orthopaedic surgeon, Mr Luke Spencer, who performed surgery on the plaintiff on 4 July 2016. The surgery comprised massive rotator cuff repair, bursectomy and limited sub-acromial decompression.
104The plaintiff said in his evidence[54] that prior to the right shoulder surgery he was in constant pain but that the surgery was not successful and that he had ongoing pain in the right shoulder, especially with elevation. He said that his surgeon told him that the only avenue left was that of a right shoulder replacement but did not recommend it because he was uncertain it would resolve the plaintiff’s problems.
[54] T108.15-116.19.
105The plaintiff is right-handed. He said that his right shoulder pain level varies, and that if he drives, he suffers pain for hours afterwards. He does not take medication for his pain. He was prescribed antidepressant medication by his treating doctor but did not find it helpful and ceased taking it. He said that he had been a worker his whole life and is depressed that he can no longer work. He used to play darts and competed in tournaments prior to the incident. He enjoyed playing and socialising with the players but no longer plays or socialises with them. His sleep is adversely affected by his right shoulder pain and his mood, and he gets up two to four times per night. Although he can wash and dress himself, he finds it difficult to dry himself after showering or to use the toilet. He cannot lift his right arm above waist height, but he is able to carry light weights. He can cook but cannot lift a kettle with his right arm and has to swap hands. He has had contact with his grandchildren for many years but since the incident has been unable to pick them up and is not confident holding them unless he is seated.
106Dr Keshavarz noted that there was minimal improvement in the plaintiff’s use of his right arm following that surgery, that the plaintiff remained significantly restricted in his use of his right arm, and that, as of 17 August 2020, the injury had had a significant effect on the plaintiff’s social life, ADL’s and work capacity.[55]
[55] PCB 58-60.
107Mr Luke Spencer reported on 23 June 2020 that the plaintiff complained of ongoing pain in the right shoulder, especially with elevation, and of reduced power in the right arm. Mr Spencer diagnosed failed rotator cuff repair, with resulting rotator cuff arthropathy and a significantly weakened shoulder which causes him pain, restricts employment and other daily activities and interferes with his sleep.[56] Mr Spencer felt that the plaintiff would experience worsening arthritic change in the shoulder over time, which may eventually require reverse shoulder replacement in the future. He noted that the plaintiff is restricted in pushing, pulling, lifting, using steps or ladders and overhead activities above waist height. He assessed the plaintiff as permanently incapacitated for any work requiring physical use of the shoulder, and given his age, education, skills and work experience, incapacitated for any suitable employment.
[56] PCB 54-57.
108Mr Douglas Gardiner,[57] Dr Joseph Slesenger,[58] and Mr Thomas Kossmann reached conclusions similar to those of Mr Spencer.[59] Each of these experts, along with the defendant’s medico-legal experts,[60] and the Medical Panel,[61] concluded that the plaintiff’s current right shoulder impairment was caused by or aggravated by the incident on 27 August 2015.[62]
[57] PCB 85-97.
[58] PCB 61-84.
[59] PCB 110-121.
[60] DCB 6-22; DCB 29-39.
[61] PCB 245-253.
[62] PCB 70, 88-89, 95, 117.
109Taking into account the plaintiff’s account of the incident (that he was pushed into the brick wall by the defendant ) and the evidence concerning his prior neck and right shoulder injury, I am satisfied that the incident of 27 August 2015, aggravated a pre-existing right shoulder injury, and caused the full depth rotator cuff tear which was then repaired unsuccessfully.
110Dr Albert Kaplan, psychiatrist, reported that the plaintiff complained that he was anxious, lacked interest in socialising, had lost confidence since ceasing work, missed playing darts and socialising with workmates and was still somewhat depressed.[63] Dr Kaplan felt that the plaintiff’s psychiatric condition had subsided somewhat but was still best characterised as an Adjustment Disorder with Mixed Anxiety and Depressed Mood.
[63] PCB 98-109.
111The plaintiff’s evidence concerning his pain and restrictions is consistent with what he told various treating and examining experts and with their conclusions. I am satisfied that the First Battery was a cause of the pain and suffering consequences (both physical and psychological) of which he complained in this case. I am mindful of the plaintiff’s age and the impact this has on the length of time into the future that he will suffer these consequences.
CONCLUSIONS
112I find the tort of battery established against the defendant.
113I dismiss the claim in respect of the Second and Third Batteries.
114I am satisfied on the evidence that as a result of the incident the plaintiff suffered pain and suffering consequences as outlined as paragraphs 92 to 111 above. Given his age, I note that he will suffer from these consequences for less time than a much younger man.
115Doing the best I can on the material before me, and bearing in mind that the defendant is only liable for the immediate harm he caused to the plaintiff as well as the natural and probable consequences of the battery, I assess the amount of damages for pain and suffering in the sum of $100,000.
116I reserve the question of costs.
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