Karamesinis v Australian Crowd Control Services Pty Ltd
[2012] VCC 507
•1 May 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
GENERAL DIVISION
Case No. CI-10-01844
Case No. CI-10-01845
| LOUKIA and PETKOS KARAMESINIS | Plaintiff |
| v | |
| AUSTRALIAN CROWD CONTROL SERVICES PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23, 24, 25, 28, 29, 30 November, 1. 2, 7 December 2011 and 19 and 20 April 2012 | |
DATE OF JUDGMENT: | 1 May 2012 | |
CASE MAY BE CITED AS: | Karamesinis v Australian Crowd Control Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 507 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION – Damages
CATCHWORDS – Assault – Defence of Self Defence – Assessment of Damages in Presence Pre Existing Conditions – Onus of Proof
CASES CITED – Watkins v State of Victoria & Ors (2010) 27 VR 543; Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645; Marinko v Masri [1999] NSWCA 364; Livingstone v Rawyards Coal Company (1880); Nominal Defendant v Gardikiotis (1996) 186 CLR 49; Purkess v Crittenden (1965) 114 CLR 164; Clark v Tieman Industries Pty Ltd [2011] VSC 500; Malec V Hutton Pty Ltd (1990)169 CLR 638.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D F Hore-Lacy SC with Mr A E E Hill | Slater & Gordon Ltd |
| For the Defendant | Mr J P Gorton SC with Mr M K Clarke | Wotton & Kearney |
TABLE OF CONTENTS
The Relevant Legal Principles....................................................................................................... 3
The nature of the contact between Vong and the Deceased................................................ 5
The Evidence adduced on behalf of the plaintiffs as to the Nature of the Contact Made between Henry Vong and the Deceased............................................................................. 5
The CCTV Evidence as to Nature of the Contact Made between Henry Vong and the Deceased.................................................................................................................................. 9
The Evidence adduced on behalf of the Defendant as to the Nature of the Contact Made between Henry Vong and the Deceased................................................................ 11The Evidence of Henry Vong................................................................................... 11
Viva Voce Evidence of Henry Vong........................................................................ 12
The evidence of Christian Adams........................................................................... 18
The evidence of Dr Katherine White....................................................................... 18
Finding as to the nature of the contact between Vong and the Deceased..................... 19
The Defence of Self Defence....................................................................................................... 21
The content of Vong’s Police Statement........................................................................... 21
The Content of Vong’s Record of Interview...................................................................... 22
The Viva Voce Evidence of Vong....................................................................................... 28
The content of the Police Statement of Christian Adams............................................... 28
The circumstantial evidence which is relied upon by the Defendant in support of the allegation that the deceased threatened to stab Vong.................................................... 30
The deceased’s behaviour prior to the evening in question........................................... 30
The deceased’s behaviour at Daveys Night Club on the evening in question............ 31
The CCTV footage of the behaviour of the deceased at Daveys and at the Night Club in so far as it is relevant to the allegation that the deceased threatened to stab Vong.................................................................................................................................................. 35
The relevance of the deceased’s criminal history as to the allegation that the deceased threatened to stab Vong....................................................................................................... 36
Does the CCTV footage of the incident support the allegation that the deceased threatened to stab Vong?..................................................................................................... 36
The evidence relied upon by the plaintiffs as to Vong’s allegation the deceased threaten to stab him.............................................................................................................. 39
The Failure by the parties to Call Evidence...................................................................... 40
Analysis of the Defence of Self Defence.................................................................................. 41
Was a threat made by the deceased to Vong?................................................................ 41
Was Vong in a situation in which he was outnumbered and threatened, such that his position on this respect was relevant to his behaviour in punching the deceased?... 44
Was Vong confronted with an aggressive and threatening approach by the deceased?.................................................................................................................................................. 48
Further general analysis relevant to the Defence of Self Defence................................ 48
Finding as to the Defence of Self Defence.............................................................................. 53
Alternative Analysis as to the Defence of Self Defence...................................................... 55
Damages........................................................................................................................................... 56
The Evidence of the Plaintiffs..................................................................................................... 57
Loukia Karamesinis............................................................................................................... 57
George Karamesinis............................................................................................................. 60
The Medical Evidence................................................................................................................... 63
HIS HONOUR:
1 As at May 2007, the defendant carried on a business in which it supplied security staff to the operators of the 21st Century Night Club in Frankston (“the Night Club”).
2 On 12 May 2007, Jerry Karamesinis (“the deceased”), who was then thirty years of age, together with a group of friends and acquaintances, attended the Night Club. Shortly after his arrival at the Night Club, the deceased became involved in a physical altercation with Henry Vong (Vong), who was a member of the security staff employed by the defendant to supervise and control the entry of patrons to the Night Club. As the result of that altercation, the deceased sustained fatal head injuries, which resulted in his death on 13 May 2007.
3 In this proceeding, in which the parents of the deceased bring a claim against the defendant seeking damages for injuries suffered by them by reason of the death of their son, it is not in issue:
(i) That the immediate cause of the deceased’s death was a head injury suffered by the deceased when, upon Vong making contact with him, the deceased fell backwards, striking the back of his head on the surface of the road with such force that he suffered widespread haemorrhaging of the brain and the infarction of cerebral hemispheres;
(ii) That the defendant is vicariously liable for the actions of Vong which resulted in the death of the deceased.
4 Essentially, the issue for my determination is whether or not the contact which occurred between Vong and the deceased which resulted in the deceased’s death was justified on the basis that Vong was acting in self defence.
5 The issues relevant to liability which arise for my determination are as follows:
(a) Did the contact between the deceased and Vong (“the contact”), which caused the deceased to fall and strike his head, occur by reason of Vong -
(i) pushing the deceased;
(ii) punching the deceased?
(b) Were the circumstances in which the contact occurred such that the contact was justified in that Vong was acting in self defence?
The Relevant Legal Principles
6 It is not in issue in this proceeding –
(i) that the defendant is vicariously liable for the actions of Vong;
(ii) that the contact which occurred between Vong and the deceased caused his death;
(iii) that in order to avoid liability to the plaintiffs in respect to the injuries suffered by them as the result of the deceased’s death it is incumbent upon the defendant to establish that in causing the deceased’s death, Vong was acting in self defence.
7 The question to be asked in considering whether the defence has been established is whether Vong believed upon reasonable grounds that it was necessary in self defence to do what he did.
8 In order to establish its defence, the defendant must establish that Vong:
· firstly, at the time when he committed the relevant act believed that what he was doing was necessary; and
· secondly, that his belief in this regard was based upon reasonable grounds.
It is clear that the second element of the defence does not involve an inquiry as to what a hypothetical reasonable person might have believed in the circumstances, but rather, whether Vong had reasonable grounds for his belief in the circumstances as he perceived those circumstances to be.[1]
[1]Watkins v State of Victoria & Ors (2010) 27 VR 543
9 In deciding whether the defendant has made good its defence that Vong was acting in self defence:
(i) The proportionality of Vong’s response is just one factor which is to be taken into account;
(ii) Insofar as the proportionality of Vong’s response is relevant to the issue as to whether Vong believed on reasonable grounds that it was appropriate for him to respond to the deceased’s threat in the way in which he did, the burden of establishing proportionality rests with the defendant.[2]
[2]See Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645; Watkins v State of Victoria & Ors (2010) 27 VR 543
(iii) If the circumstances warrant it, account must be taken of the fact that Vong was reacting instantly to imminent danger, and accordingly that he could not be expected to weigh precisely the exact measure of self-defensive action which was required of him; and that for this purpose the whole of the circumstances which confronted Vong must be considered.
(iv) The inquiry should be conducted in a practical manner with proper weight being afforded to the circumstances with which Vong was faced which did not afford him the opportunity for “calm deliberation or detached reflection”.[3]
[3]Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645
The nature of the contact between Vong and the Deceased
The Evidence adduced on behalf of the plaintiffs as to the Nature of the Contact Made between Henry Vong and the Deceased
10 During the trial, evidence was adduced on behalf of the plaintiffs as to the nature of the contact made between Vong and the deceased from seven eye-witnesses. As is to be expected, having regard to the fact –
· that the incident occurred some four years ago;
· that the contact occurred within an extremely short space of time;
· that the witnesses had no warning of the contact being initiated;
there were numerous discrepancies between the eye-witness accounts of the contact.
11 A common thread between all the viva voce evidence was however:
(i) that the contact involved a punch with a clenched fist; and
(ii) that the effect of the contact was such as to render the deceased unconscious so that he fell backwards, taking no action to break his fall.
12 Megan Nicole Cronin, a witness who had no prior association with or knowledge of the deceased, described the contact in the following manner:
“I saw the Asian security guard take a bit of a run up. The gentleman next to me was punched fairly hard, severely into the head, and - yeah, he fell backwards from the concrete on to the road and smashed his head.”[4]
[4]T 29
13 Ms Cronin said she was standing approximately two metres away from the deceased, and described the force of the punch as being:
“Fairly severe … it was fairly strong”
and the deceased’s fall in the following terms:
“He went to ground like a plank”.[5]
[5]See the evidence at T 29-T 30
14 In cross-examination, it was put to Cronin:
“Then what happened is Vong took a couple of steps and pushed the deceased - hard but pushed him - in this region with his left hand, and pushed him away from Vong to make sure that they were kept well away from each other; you (indistinct)?‑‑‑“
15 Ms Cronin did not accept this proposition.[6]
[6]T 43
16 Tara Lee Kane was another witness who had no prior association with or knowledge of the deceased. Kane gave evidence that she had attended the Night Club with Cronin. She described the contact between Vong and the deceased in the following terms:
“If you were watching a boxing match and someone got knocked out after one punch that’s exactly what that guy did. It was a massive, massive throw of one punch.”[7]
[7]T 119
17 Ms Kane said that following the incident, she did not see the deceased do anything at all to protect his fall.[8]
[8]T 120
18 In cross-examination, it was put to Kane that Vong had come forward and pushed the deceased quite hard, to which she responded:
“He punched him in the face.”[9]
[9]T 132
19 Danielle Louise North described herself as having been friendly with the deceased for years. She described the contact between the deceased and Vong in the following terms:
“I didn’t know at that exact moment where Jerry was. It wasn’t until I saw the Asian bouncer, he did this like, martial arts stance and he - and I thought what’s he doing, and then when he charged and then I looked, and then I saw Jerry walking with his hands in his pockets, just took a step onto the gutter, so like off the road onto the gutter, and that’s when he just ran and - ran with his fist and hit Jerry.” [10]
[10]T 62
20 Ms North described the contact as involving –
“One straight through punch from where he had been standing, and his fist was closed and he hit Jerry, I – around the jaw area … .”[11]
[11]T 64
and the effect of the punch in the following terms:
“Must have knocked him out because he just like, he - he was standing and then he was falling and everything, and – and then he …
… I remember thinking he didn’t, he’s not putting out his hands or anything to protect his fall, and I remember thinking, I was so close that I could have, I should have caught his head, maybe, and that would have helped … .”[12]
[12]T 64
and further:
“Well, it was a running punch. I would say it’d be pretty - well, I don’t have anything to judge it by but it was - it knocked him out, I could see that it knocked him out.”[13]
[13]T 65
21 It was put to North that Vong had pushed the deceased to get him as far away from Vong as he reasonably could, to which she replied that the deceased was definitely struck a blow with a closed fist such that he was rendered unconscious.[14]
[14]T 81
22 Michael Paul Galluzo was an acquaintance of the deceased. He described the contact between Vong and the deceased in the following terms:
“That - that he - he punched him. He, you know, to my recollection he - he pushed punched him, which means that he punched and pushed him at the same time. Punched him with his right hand, pushed with his left hand.
…
He was pretty much knocked out straight away and fell like a tree … .
… there was no reaction to his face when I saw him, he just looked like he was - he was knocked out straight away.” [15]
[15]T 257
23 Gavin John Anning, an acquaintance of the deceased, described the contact between Vong and the deceased in the following terms:
“… At that point I saw the Asian security guard make a lunge towards the front roped area where I knew Jerry to be and it was a very quick action carrying quite a bit of distance where it looked like it was either two quick punches in succession or both hands out at the same time in striking motion, closed fist. I did not see the strike impact anyone. I lost vision as he was traversing towards that front area … .”[16]
[16]T 368
24 Amanda Louise Gray was an acquaintance of the deceased. She described the contact between Vong and the deceased in the following terms:
“Well, because he lunged so - like, sort of leapt so furiously, it wasn’t - it wasn’t a particularly - it wasn’t like an average punch to the face, it was more because of the leap was behind, it had a lot of - I’d say his whole body weight was behind it.
… it was - it was like a leaping hit …
It was a fist.”[17]
[17]T 339
25 Gray described the deceased’s reaction to the blow as:
“… it looked more like he’d been knocked off his centre of gravity and he sort of just fell dead weight. Yeah.”[18]
[18]T 400
26 Kane Paul Suckling, a long-term friend of the deceased, described the contact between Vong and the deceased as involving a forceful blow with a closed fist which was hard enough to knock the deceased out.[19]
[19]T 424
27 Generally I found each of the witnesses who were called on behalf of the plaintiffs to present as reliable witnesses, each of whom did their best to provide accurate evidence as to the events of the evening. Given the passage of time which has now occurred and the short time span in which the events critical to my determination took place; I find it hardly surprising that inconsistencies between the evidence of the various witnesses were unearthed in the course of cross examination. I was impressed however with the consistency with which each witness described the contact between Vong and the deceased as involving not a push but a forceful punch.
The CCTV Evidence as to Nature of the Contact Made between Henry Vong and the Deceased
28 CCTV footage[20] (“the footage”) which documents the activities and the movements of:
[20]Exhibit P
(i) the deceased and the group of which he was a member (“the group”), from the time they arrived at the Night Club;
(ii) the various employees of the defendant, including Vong, who were providing security at and around the door of the Night Club;
was generated by a surveillance camera located at the Night Club.
29 The contact between Vong and the deceased is depicted in the footage and the parties agree that the footage is to be received as primary evidence in the proceeding.
30 During the trial the footage was analysed in slow motion for the purpose of gaining clarification of the activities and movements of the persons depicted in the footage. In relying upon the footage for the purpose of making my findings I bear in mind that:
(i) viewing the footage creates an artificial situation which does not necessarily represent the line of vision available to any of the persons involved in the incident and that extreme caution must be employed in drawing conclusions as to what was visible to a particular individual from the footage;
(ii) the footage gives little or no insight into the emotions of the parties present or involved in the incident which resulted in the deceased’s death;
(iii) the activities which occurred between the arrival of the deceased at the Night Club and his altercation with Vong which, whilst capable of laborious visual analysis via the footage, were part of a continuum which occurred within a very brief passage of time.
For these reasons I am of the opinion that caution must be employed when using the footage to make findings which are not otherwise corroborated in some other manner by the evidence.
31 Giving due weight to all the factors listed above however, I am of the opinion that the footage, strongly supports the evidence adduced by the plaintiffs that the contact between Vong and the deceased involved a punch of considerable force and not a forceful push, for the following reasons:
(i) Firstly, the footage shows the initial contact between Vong and the deceased as involving a straight arm push by Vong in which his right hand makes contact with the deceased’s upper body in the vicinity of his shoulder. Following this contact, Vong’s left hand moves in a swinging motion to make contact with the right side of the deceased’s face in the area of his jaw. There is, in my opinion, a marked contrast between the movements involved when Vong makes contact with the deceased; firstly with his right hand (the first contact) and those involved when Vong makes contact with the deceased with his left hand (the second contact). The first contact involves a straight arm, front on contact to the deceased’s left shoulder area which is clearly a push. The second contact involves a swinging motion of the left arm in which Vong’s hand moves from below his waist to make contact with the deceased’s face, the movement having the appearance of a punch;
(ii) Secondly, in my opinion the fact that the first and second contact occur sequentially is inconsistent with an intention to carry out a forceful push as is the point of contact of the second blow to the deceased’s face; [21];
(iii) Thirdly, the contact between Vong’s left hand and the deceased’s face appears to occur in association with a significant change in weight by Vong which supports the follow-through of his left hand as it makes contact with the deceased’s face. The effect of the contact is such that the deceased’s head is pushed back by the blow.
[21]I would have expected a push designed to arrest a persons forward movement and force him back to involve simultaneous contact with both hands to the upper chest area excuted in a manner consistent with Vong’s description of the contact which he made with the deceased in his record of interview namely “two hands straight out” – See Question and Answer 311.
32 In my opinion, this latter point is consistent with Vong’s contact with the deceased involving a blow of significant force. It is not possible from the footage however to discern whether the contact was made with a clenched fist or open hand.
The Evidence adduced on behalf of the Defendant as to the Nature of the Contact Made between Henry Vong and the Deceased
The Evidence of Henry Vong
33 In a statement made on 13 May 2007,[22] Vong describes the contact made between him and the deceased as follows:
“I turned and reacted with my left hand and hit him with an open hand. I hit his jaw and he fell backwards over the gutter. He fell out onto the road and didn’t move. I was surprised at how he fell because I didn’t think I hit him very hard, it was more a reaction to him coming at me.”
[22]Exhibit M
34 In the course of a record of interview conducted on 13 May 2007, Vong repeatedly denies that his contact with the deceased involved a blow of any type and maintained that it involved a push, the purpose of which was to create space between him and the deceased.
Viva Voce Evidence of Henry Vong
35 In the course of his viva voce evidence Vong maintained the position that he did not punch the deceased but that he pushed the deceased with significant force for the purpose of keeping the deceased away from him and gave evidence as follows:
· Having undertaken a course which qualified him as a registered “crowd control person”[23] he was employed in security at the Commonwealth Games and thereafter commenced employment for the defendant as a security guard.
[23]T 880
· Prior to 13 May 2007, although he had worked at the night club, he had not been involved in incidents of violence at the night club, nor was he familiar with the deceased.
· On the evening of 13 May 2007, the deceased, together with a group of other people, arrived at the night club, having come from another night club and were advised “nicely that they weren’t allowed in, but they got aggressive”.[24] The group tried to push their way into the Night Club and in doing so a pushing and shoving episode occurred, which Vong said “made me feel very scared because there was quite a lot of them and I hadn’t been in that situation before”.[25]
[24]T 881
[25]T 881
· At the time of the incident Vong was 171 centimetres tall and weighed about 62 kilograms
· After the pushing and shoving incident occurred in which the deceased and another companion were pushed out of the doorway of the Night Club, Vong said:
“I was trying to keep the group at bay and another bloke, I think his name was Jerry, the one that passed away, was wrestling with Taz. He had a bollard in his hand …
“Q: What is your impression of the vigour of that wrestle?
A: I thought it was going to turn nasty, someone was going to get hit with the bollard.
Q: How were you feeling as you were standing there with Taz wrestling with Jerry?
A: I was quite scared at that time, yeah.
Q: Scared of what?
A: Getting bashed.
Q: Then after the wrestle with Taz and Jerry finished, can you describe what happened next?
A: I heard someone yell out, ‘I’m going to stick you’ and I felt someone moving very fast towards me … and I reached and tried to keep myself at distance, push the guy away …
Q: What was your memory of whether the distance between you and the person, Jerry, was increasing or decreasing or staying the same in the time before you made contact with him?
A: It was decreasing, I felt him moving very fast towards me.
Q: What words were uttered?
A: I’m going to stick you.
Q: What did you understand that to mean?
A: I took that as I’m going to stab you …
I took it as quite serious.
Q: When you made contact with him, what part of your body made contact with him, the principal contact?
A: My palm.
Q: Your palm?
A: Yes.
Q: Of which hand?
A: Of my left hand.
Q: What part of his body did it make contact with?
A: I believe that it was his jaw.
Q: His jaw?
A: Yes.
Q: What level of force was used in your making contact with him?
A: I tried to use enough force so that it would push him away?
Q: Are you able to be more specific as to whether you would say it was – well, how would you describe the contact that was made with his jaw?
A: A full on push.
…
Q: What did you think might happen if you didn’t make contact with him?
A: He was going to come around and stab me.
Q: What was your impression of how close to you he was at the time you made your decision to make contact with him?
A: I felt him coming very close, so.
Q: Are you able to be more specific about the degree of the force that was used, whether it was gentle, medium, hard, what would you say?
A: It would have been a hard push because I wanted to get him as far away from me as possible.”[26]
· His purpose in acting as he did was to do what he could to try to make space between the deceased and himself and that at all material times it was his belief that it was just he and “Taz” who, without assistance, were required to manage the activities of the deceased and his companions.
[26]T 882, 884
36 In cross-examination, Vong was taken to the CCTV footage of the incident. It was put to him that the footage did not support his evidence that the deceased was approaching him and coming towards him at a rapid speed, to which Vong responded,
“A: I mean, it looks a lot different here, but at that time – I mean, he was coming towards me very fast.
Q: After seeing the video, what would you say is depicted in the video as happening?
A: Well it shows me moving towards him as well.
Q: Taking, what, two or three quick steps and punching him, does it not?
A: I didn’t punch him.
Q: You did not punch him?
A: That’s right.[27]
[27]T 886
37 Vong was asked whether the video depicted the moment at which he felt that he was being threatened and that people were shaping up to him or physically threatening him and it was suggested that no such activity was depicted in the video, to which Vong responded, “Well, when I was there that is how I felt, there was people around – and I felt them sizing up to me.”[28]
[28]T 889
38 Vong said that he felt that he was going to be bashed “because why else would you pick up a bollard? I mean, I thought they were going to hit us with it.”
39 It was put to Vong that the video depicted him adopting a fighting stance to which he responded,
“A: I was trying to hold my ground, that is all I was doing.
Q: It shows you adopting a fighting stance, does it not?
Q: No. As I have said, I was trying to hold my ground.”
40 Vong said that he had called for back up, but that he could not remember precisely when he made that call. He was asked whether at any time he believed there were additional security personnel other than he and Taz present at the scene, and responded, “I just knew there was just me and Taz at the time.” He said he could not identify the person in the black jacket standing next to him in the photographs on page 76 of Exhibit F as a member of the security personnel and that he had not been aware of the presence of the man in the lettered jacket who has been identified as Pat Ohiho.[29]
[29]See the evidence at T 537
41 It was put to Vong that he was not sure that the threat that he was going to be knifed came from the deceased, to which he responded:
“A: Well it came from that direction, yes.
Q: It came from his direction and there were other people near him too, weren’t there?
A: Well, at that point it was just, I saw someone coming towards me and I assumed it was him, yeah.”[30]
[30]T 894
42 Whilst Vong was challenged on the basis that the CCTV footage of the incident did not reveal the deceased to be approaching him at speed and that it revealed the presence of other security guards located in his vicinity at the time at which he commenced to advance to the deceased, Vong said that whilst the video revealed “two people moving, so he was moving towards me and I was moving towards him as well”,[31] at the time it was his impression that the deceased was coming towards him and that he and Taz were managing the situation without assistance.
[31]T 898
43 Vong described the contact between himself and the deceased in the following terms:
(i)He accepted as accurate the description given by him in his police statement, namely: “I turned and reacted with my left hand and hit him with an open hand”.[32]
(ii)“I reached out with both and struck him with the left.”[33]
(iii)“I hit him in the jaw.”[34]
and described that the reason for making contact with the deceased being to move the deceased back as far as he could so as to maintain distance between himself and the deceased.[35]
(iv)That it was his intention to push the deceased by making contact with his chest.[36]
(v)That his intention had not been to knock the deceased out or to try and punch him.[37]
[32]T 900
[33]T 901
[34]T 910
[35]T 902, 912
[36]T 913
[37]T 902
44 Vong was asked whether he could recall any instructions which he had given to Mr T Maloney of Counsel,[38] that morning and prior to his giving evidence to which he responded,
[38]Mr Moloney had appeared for Vong in an application before me to have Vong excused from having to give evidence in which an issue was raised as to Vong’s memory of the events of the evening in question.
“A: I can’t remember this morning’s conversation.
Q: You can’t remember this morning’s conversation?
A: Yeah.
Q: Can you remember anything about this morning’s conversation?
A: Not confidently, no.
…
Q: Is that what the situation is, that you actually have no memory of what happened on the night, that you are just relying upon what is in your statement and your record of interview?
A: That might be the case, yeah.
Q: Might be the case. Is that what you in fact told Mr Maloney that you could not remember anything at all, that your version of what happened was contained in the statement and the record of interview?
A: I mean, there is bits and pieces that I can remember, yeah.
Q: There is only bits and pieces?
A: Yeah.” [39]
[39]T 922
45 In re-examination, Vong was asked,
“Q: How much time was there between the moment you heard the threat to stick you and the moment of impact, contact between you and Jerry?
A: Almost instantaneous, it was very little.
Q: You have described the impact as a strike, a push and a hit on different occasions. How do you draw a distinction between those phrases, strike, push or hit?
A: To me, to me, they all seem just like the one thing.”[40]
[40]T 924
The evidence of Christian Adams
46 Christian Adams was a crowd controller employed by the defendant who was working on the front door of the Night Club. In a police statement dated 13 May 2007, Adams describes the contact between Vong and the deceased in the following manner:
“As I turned to see where this Male No 1 was, I saw that he was coming at me in an aggressive manner. I thought he was about to attack me again. As I was getting ready to fend, Male No 1 off, I saw my colleague and fellow crowd controller, Henry, who was standing just to my left. He pushed Male No 1 with his right open hand on his face in an attempt to defend me from the male. The male fell backwards with his arms by his side. He went straight back without taking a step backwards. Male No 1 just laid there and did not move.”[41]
[41]See the Police Statement of Adams dated 13 May 2005 (Exhibit 5). Adams was not available to give evidence and his statement was tendered by agreement between the parties.
The evidence of Dr Katherine White
47 The report by Dr Katherine White, a pathologist; is relied upon by the defendant on the basis that it fails to report the presence of significant trauma in association with the second contact. In her report Dr White described her examination of the deceased’s body as revealing the presence of, amongst other things minor bruising of the right jaw.[42]
[42]See exhibit O
48 In the absence of evidence as to whether these reported findings are consistent or inconsistent with the second contact involving a punch of sufficient force to knock the deceased out, I do not find this evidence to be persuasive one way or the other upon this issue in respect of which the defendant has the onus.
Finding as to the nature of the contact between Vong and the Deceased
49 I do not accept the description by Vong or Adams as to the second contact involving a push for the following reasons:
· A large body of evidence to which I have referred supports the position that the contact which occurred between Vong and the deceased was that of a push. Whilst much of this evidence was adduced from friends or acquaintances of the deceased, when that evidence is considered in the context of the CCTV footage which in my opinion supports it, I find the evidence that Vong forcefully punched the deceased to be persuasive.
· The description by Adams and the other witnesses to which I have referred, that the second contact resulted in the deceased falling backwards without taking any action to break his fall is, in my view, more consistent with the contact involving not a push but a forceful punch, the effect of which was to render the deceased unconscious.
50 Further I do not accept the evidence by Vong that he sees the words “hit”; “push” and “strike” as being interchangeable. In the course of his evidence I did not detect Vong to have any difficulty with his choice of words nor did he use inappropriate words. More importantly Vong’s evidence in this regard is in my opinion inconsistent with his comments in his record of interview which make it clear in my view that he well understood at that time the difference between a hit and a push given his forceful denial that he ever hit the deceased.[43]
[43]See for example the passage to which I have referred at p25-26 of my Reasons for judgment.
51 When account is taken of –
(i) the footage which depicts the contact;
(ii) the large body of evidence which describes the contact as involving:
· a blow of considerable force
· a blow with a clenched fist
· a blow which rendered the deceased unconscious;
I am satisfied that:
· the descriptions by Vong in his police statement; his record of interview and his viva voce evidence; and the description by Adams in his statement; do not accurately describe the second contact;
· the second contact involved a punch with a closed fist, administered with considerable force such as to immediately render the deceased unconscious.
52 Further, I am satisfied that:
(i) the nature of the blow and the force involved was such that the blow could not have been delivered inadvertently by Vong. It follows that I do not accept Vong’s evidence that he did not intend to punch the deceased and that he did not appreciate that the deceased may suffer a serious injury as a consequence of the blow;
(ii) whilst at the time the deceased was struck he had his hands in his pockets, the reason for the deceased taking no action to break his fall was not because he had no time to extricate his hands from his pockets, but rather because he was rendered unconscious by Vong’s punch.
The Defence of Self Defence
53 In making out its defence on the grounds of self defence the defendant relies upon the evidence of Vong and Adams, which it is put is supported by circumstantial evidence; together with the CCTV footage.
The content of Vong’s Police Statement
54 In a police statement made at 2.25 am on 13 May 2007,[44] Vong said that at 11.04 pm on 12 May 2007, in the course of his duties as a crowd controller at the Night Club, he received a call from the security at Davey’s Bar and was informed that he should refuse entry to a group of males who were approaching the Night Club. He said that when this group arrived at the Night Club, he was working with another crowd controller “Taz”.[45] He said that a member of the group, a male in a red jacket, challenged Taz as to why the group was to be refused entry to the Night Club.
[44]Exhibit M
[45]The reference by Vong to “Taz” is clearly a reference to Christian Adams
55 Relevantly, his statement as to the incident involving the deceased was as follows:
“Taz and I tried to stay polite, we just kept telling them that we had been instructed not to let them in. We apologised to them and told them that this was what we had to do.
The male in the red jacket said ‘Fuck this’, he unclipped the rope on the left side of the entry point and tried to barge in past Taz. Taz struggled with the male but managed to get him back outside the rope line. After this the whole group started to push towards us. I had four males in front of me trying to get in and out of the corner of my eye I saw another male from the same group pick up one of the metal poles that the ropes clip onto and go towards Taz. He picked the pole up out of the ground and all I could see was Taz wrestling with the male holding the pole. I called for back-up to help us out. I wanted to help Taz but I had the four males standing in front of me trying to get in. The group of males were all big blokes. I was worried that this was about to get out of hand, I was in fear for my safety and also for the safety of Taz. I was scared that I was about to get bashed.
I moved out towards Taz and I saw that Taz had gotten the pole off the guy that had it. During the struggle the ropes had come down and we were now out on the footpath. This group of blokes just wanted to fight, they all had their fists up and it was still just me and Taz wrestling with them. We were outnumbered and it was all happening so quick. The whole time this was happening the group were yelling and abusing me, Taz was still wrestling with a male so I felt like it was me against the rest of the group. I was expecting them to just jump me and bash me at any second. A male in a black t-shirt said ‘Back-up’s not gonna help ya, you’re gone’.
The male that had the pole came at me from my right, he said ‘I’m gonna stick ya’. I could only see him out of the corner of my eye. Because of what he had said I thought that he had a knife. I turned and reacted with my left hand and hit him with an open hand. I hit his jaw and he fell backwards over the gutter. He fell out onto the road and didn’t move. I was surprised at how he fell because I didn’t think I hit him very hard, it was more of a reaction to him coming at me. I can’t remember what the male looked like or what he was wearing.
By this time the back-up arrived and they started to move people on and hold back the other males from the group. The males were yelling at me and threatening me. A male in a black t-shirt and a male in an aqua t-shirt were threatening me. They were saying things like ‘You’re a dead guy’ and other things about me being Chinese. They kept saying they’re gonna get me. I was really scared at this point, I still didn’t know if this bloke had tried to stab me and I didn’t know what his friends were going to do to me.
Someone called out, ‘He’s got a gun’. I don’t know who called out but I turned and saw the male in the red jacket standing on the road with his hands in his jacket. I don’t know if they were talking about him but I ran inside and stayed in the foyer. At this point I was really scared, I was in fear for my life. I thought that someone had a gun outside.
I remained inside until Police arrived.”[46]
[46]Exhibit N
The Content of Vong’s Record of Interview
56 On 13 May 2007, Vong was interviewed by the police. The interview was tape recorded and a 54-page transcript of the interview was prepared.[47]
[47]Exhibit O
57 In the record of interview, Vong:
· describes the approach to the Night Club by the group which included the deceased;
· describes the fact that Taz (Mr Adams) politely refused the group entry to the Night Club and that the initial response of the group was to become verbally aggressive.
· states that the group “tried to barge in and just push through us”[48] but that he and Taz managed to push the group back;
[48]Q & A 93
· states that one of the group picked up a pole,[49] and states that at this time “I was busy keeping a huge group that wanted to attack me on – on my left side”.[50] Vong describes this group as wanting to attack him[51] and as having their fists up and threatening him.[52]
· states that he called for backup and that the group told him “the backup wasn’t gonna help, they were gonna get me, you know, they were gonna fuck me up.”[53] Vong said that at this time Taz was struggling with “the guy with the pole. You know, I was real worried about him, you know?”,[54] that he could see Taz struggling with the man with the pole and that he thought Taz was going to be struck by the pole.[55]
[49]Q & A 137; Whilst Vong said he was unable to identify this person,[49] this is clearly a reference to the deceased.
[50]Q & A 142
[51]Q & A 157
[52]Q & A 159
[53]Q & A 160
[54]Q & A 162
[55]Q & A 170
58 Vong was asked:
Q:“Okay. After you’ve seen Taz struggling with the guy with the pole, what happened, to your recollection?---
A:I mean, I was still keeping these guys at bay, you know.[56]
[56]Q & A 188
Q:Mm’m?---
A:From my end and there was – all I could see was them wrestling with the poles ….[57]
[57]Q & A 189
Q:Mm’m?---
A:I was really worried about Taz ‘cos, you know, some guy wackin’ him with the pole, so ….[58]
[58]Q & A 190
Q:Mm’m?---
A:Then all of a sudden, I mean, I think Taz grabbed the pole off him, you know, and ….[59]
[59]Q & A 191
Q:Yes?---
A:He went behind me, then this guy charged me and I – I heard, you know, ‘I’m gonna stick you,’ so I thought, ‘He’s gonna – gonna stab me,’…[60]
[60]Q & A 192
Q:Mm’m?---
A:So, you know, I pushed him out.[61]
[61]Q & A 193
Q:Who – who made a comment that they’re gonna stick you?---
A:Well, I – O … from this guy, you know ---[62]
[62]Q & A 194
Q:But it – it – was he the – the guy with the pole or was ---?---
A:Yeah.[63]
[63]Q & A 195
Q:Or was he – a different guy?---
A:I heard coming from this end, you know ---[64]
[64]Q & A 196
Q:When you say ‘this end’?---
A:… ‘cos he was rushing at me, so I assumed it was him.[65]
[65]Q & A 197
Q:So when you say – when you say ‘this end’, is that – is he one of the guys that was in the group that you were holding back or was he a different person?---
A:No, he came from Taz’s side.[66]
[66]Q & A 198
Q:Was that the same person that Taz was dealing with the pole?---
A:Yes.[67]
[67]Q & A 199
Q:Okay. He said to you, ‘I’m going to stick you’?---
A:Yeah.[68]
[68]Q & A 200
Q:Well, what does that mean to you?---
A:He’s gonna stab me.[69]
[69]Q & A 201
…
Q:Mm’m. Okay. So it’s in your mind that you’re going to be stabbed?---
A:Yes – yeah.[70]
[70]Q & A 205
Q:Okay.
A:‘cos these guys were making threats to me from … .[71]
[71]Q & A 206
Q:You said you pushed him. How did you push him?---
A:Both hands, straight out.[72]
[72]Q & A 207
Q:How? Where’d you – where did you push him on his body?---
A:I just reached out, you know, and pushed him.[73]
[73]Q & A 208
…
Q:Did – can you remember whether you had open hands or clenched fist?---
A:I had open hands.[74]
Q:Mm’m. What was your intention when you pushed this person?---
A:To get him back, you know?[75]
Q:Mm’m?---
A:‘cos I – I didn’t know what he was going to do, you know, charging at me.[76]
Q:Where were his hands placed at the time?---
A:I’m not sure.”[77]
[74]Q & A 213
[75]Q & A 214
[76]Q & A 215
[77]Q & A 216
59 It was put to Vong:
Q:“Earlier you – when you told me what happened, you said that you hit one of them – one of the guys …?---
A: No, I … .[78]
Q: Who accidentally fell over?---
A: I didn’t hit anybody.[79]
Q:Well, this is what you said. I’ve made a note of it. You – you hit one of the guys?---
A: No, I’ve pushed.”[80]
[78]Q & A 241
[79]Q & A 242
[80]Q & A 243
60 Vong was asked in the course of the interview as to his intention when he made contact with the deceased:
Q:“So when you pushed him, what was your intention to do at that moment, to – by pushing him?---
A: Keep him away from me, you know?”[81]
[81]Q & A 282
and further:
Q:Other than the fact that he said, ‘I’m going to stick you,’ right, was there anything that caused you to believe you were gonna be stabbed, other than that comment? Did you base that fear – and I say did you base that fear on any other experience or any other thing that you were aware of?
A: Yeah, apart from a big group, you know.[82]
[82]Q & A 287
Q: Mm.
A: Threatening to kill me on this side, I mean …[83]
[83]Q & A 288
Q: Mm. So it was based on those things?---
A: That’s right.[84]
[84]Q & A 289
…
Q:So you believed it was him when you actually looked at him, to push him? Or you weren’t su-, … ?---
A:It was just an instant reaction ‘cos, you know, some guy was coming towards me, yelling.[85]
[85]Q & A 293
Q:And you thought it was him?---
A:Yep.[86]
[86]Q & A 294
…
Q:As you’ve explained? Okay. So – yeah, I – I’m not sure you’ve answered the other question. Was there another thing you could’ve done, other than push the male? At the time of the situation. Or do – or do – maybe I – I won’t – forget about that question. Maybe I’ll explain better this way. At the time, did you give any other thought to what you – in that moment, did you give any other thought to what you – what’s something else you have do-, been able to do and in – but then made a split decision, ‘No, I won’t do that, I’ll push him’? Do you follow what I’m asking?---
A:I mean, there was really no – nothing else I could do, you know? I had to look after myself, my colleague and the patrons there, so ….[87]
[87]Q & A 299
Q:So that was the only one th-, can I say this, was that the only one thought you had, ‘I will push this male away’?---
A:That’s right, you know, keep everybody at bay until backup arrived.[88]
[88]Q & A 300
…
Q:Just one more question, and your intention was to push him away?—
A:That’s right.[89]
[89]Q & A 304
Q:And not – was your intention to cause him any injury?---
A:No.[90]
[90]Q & A 305
…
Q:Just excuse me … can you remember how you pushed him again?---
A:I think I said two – two hands straight out.[91]
[91]Q & A 311
…
Q:… What was your intention – what part of the body were you intending to touch him with firstly and then secondly? Do you know? Did you give that any thought?---
A:No, it just happened so fast.[92]
[92]Q & A 313
Q:So when your right hand touched his shoulder, was that your intention?---
A:I mean, anything to move him back, you know?[93]
[93]Q & A 314
Q:So when did your left hand hit – pushed him with the left, where were you intending to hit him on the body?---
A:Just anywhere.[94]
Q:Anywhere?---
A:Move him back.[95]
Q:What I am putting to you, was there any specific area on the body that you had in mind that you wanted to hit him or push him?---
A:No, I mean, around the chest area, I’m … [96]
Q:Were you surprised that you actually got him in the jaw?---
A:I mean, if – if that’s where I got him, then yeah.[97]
Q:Yeah, it depicts that you’ve hit him in the jaw. Was it your intention to hit him in the jaw?---
A:No. I mean, just to move him back.”[98]
[94]Q & A 315
[95]Q & A 316
[96]Q & A 317
[97]Q & A 318
[98]Q & A 319
The Viva Voce Evidence of Vong
61 As described earlier, other than to concede that he could not be certain that the threat which he heard came from the deceased, Vong’s viva voce evidence was largely consistent with his record of interview.
The content of the Police Statement of Christian Adams
62 In the statement made 13 May 2007, Adams describes himself as a licensed crowd controller employed by the defendant whose duties involved the securing of the front door at the Night Club. He said that in the course of the evening of 12 May 2007, he received a call from the security at Daveys Hotel advising him that a large group was approaching the Night Club and that they had been ejected from Daveys Hotel.
63 Adams said:
· that, having received that call, it followed that he would refuse the group entry to the Night Club;
· that having informed the group that they would be refused entry, the deceased responded:
“We are coming in anyway”.
·that the deceased then unhooked the rope barrier and attempted to walk into the Night Club, accompanied by another person. Thereafter, Adams describes the following activities occurring:
“I lifted my left hand and with an open hand pushed Male No 2 backwards with an open hand to his chest. As I did this I told them again ‘I can’t let you in here’.
Male No 1[99] took a step sideways to his left. He pulled one of the upright metal poles (which forms part of the rope off barrier) from its hole in the pavement. He was holding it in an aggressive manner with two hands in front of his chest. He stepped towards me in a threatening manner and I believed he was going to hit me with the metal pole. I grabbed hold off (sic) the metal pole in his hands with my two hands and wrestled it from his hands. I immediately turned around and took two steps inside the front door and threw the metal pole on the ground inside the Night Club so that no other person could use it as a weapon on me. As I turned around to see where this Male No 1 was, I saw that he was coming at me in an aggressive manner. I thought he was about to attack me again. As I was getting ready to fend Male No 1 off, I saw my colleague and fellow crowd controller, Henry, who was standing just to my left. He pushed Male No 1 with his right open hand on his face in an attempt to defend me from the male. The male fell backwards with his arms by his side. He went straight back without taking a step backwards. Male No 1 just laid there and did not move.”[100]
The circumstantial evidence which is relied upon by the Defendant in support of the allegation that the deceased threatened to stab Vong
[99]the deceased
[100]See page 2 of Exhibit 5
64 It is put on behalf of the defendant:
(i) that the fact that the deceased was carrying a knife supports Vong’s evidence that the deceased threatened to stab him. It is put that in the absence of any evidence that Vong saw the knife or was aware that the deceased was carrying a knife, it is unlikely that Vong could have fabricated a threat which, by coincidence, the deceased was capable of carrying out.[101] On this basis it is put that Vong’s evidence that the deceased threatened to stab him is persuasive;
(ii) that the deceased’s history of violence and his pattern of behaviour both generally and on the evening in question (which involved a history of making threats), also supports Vong’s evidence that the deceased threatened to stab him.
[101]There is no issue that the deceased was in possession of a knife at the time of his death.
The deceased’s behaviour prior to the evening in question
65 Emilie Piddington gave evidence that in approximately 2004, whilst she held the position as the general manager at both The Pier Hotel and Daveys Night Club, she became aware of the deceased, whose behaviour she described in the following terms:
“In the early days he was - the group of them, there’s a large group of them, very - how would you put it - there was a fight every second weekend if they were there. Even if they weren’t allowed into the venue they’d start fights out in the street, (indistinct) security or people walking around. I mean you’ve got to remember there was four pubs on the corner so there was probably five thousand people out at Frankston at one time, so there was always something going on.
Q: Did you have any personal dealings with Mr Karamesinis?---
A: Yes, I did.
Q: Can you tell the Court about those?---
A:I was threatened on numerous occasions. I have documented all these occasions in a journal which is - we put through - ALH has a policy it has to be all written up and also into the ACCS security log book.”[102]
[102]T 514
66 Piddington gave the following evidence as to a specific threat made by the deceased to her in approximately 2004:
Q: “How did he do that?---
A:By smiling and leaning over and letting me know what he was going to do to me. I took the brunt of security a lot of the time. I felt I was a little bit invincible back then, young, stupid, but he - look to be honest there were so many times - you’d have to look at what I’ve written in my statements back then, and there should be books and books of it – the one I remember was at Davey’s, if I could say that one, that’s in 2004 because I was six months pregnant. He came to the door, I let him know you cannot enter, you know you’re barred for life in this area in Frankston. He put it to me smiling that he would stab me in my stomach, and I said, ‘I’m obviously pregnant. Jerry, why would you say that?’ He said, ‘Well I’ll kill you both’. He also stated that he would find out where I live and he will come through and take my family out.
Q:How did that make you feel?---
A:I don’t get scared very often and the smile was enough to make me – he meant what he said, with Jerry, he’s done it – well I can’t say that. He meant what he said.”[103]
[103]T 515
67 Piddington presented as a credible witness and I accept her evidence.
The deceased’s behaviour at Daveys Night Club on the evening in question
68 Daveys Night Club (Daveys) is located a short distance away from the night club. Simon Murray gave evidence that on the evening of 12 May 2007, he was the manager of Daveys. He said that a group, which included the deceased, walked up to the front door of Daveys and bypassed the waiting lines. He said that whilst the group were standing by the door of Daveys and, as security personnel from Daveys were ejecting one of the patrons:
“… Jerry did a left hand hit, slap, to one of the gentlemen that had been asked to leave the – or had been escorted from the premises.
Q: What part of the body did Jerry make contact with?---
A: The gentleman’s head.
Q: What party of Jerry’s body made contact with the head?---
A: It was his hand.”[104]
[104]T 484
69 Murray said that he refused both the deceased and the group of which the deceased was a member, entry into Daveys having regard to the fact that their dress was inappropriate. He was asked:
Q:“After you explained to Jerry that they weren’t to come in, did Jerry say anything further to you?---
A:Yes, after - from my impression, I mean he realised that he wasn’t going to be allowed in through the normal circumstances. He said to me, and to me personally, that ‘You should let us in otherwise there’s going to be some trouble’.
Q:Could you describe his voice in terms of its loudness or so forth at the time he said this to you?---
A:Yes, he made a deliberate effort to speak to me only. He lowered his voice, not to a whisper, to a tone that only I was able to hear and it was directed directly to me in a threatening manner.
Q:Did you take the threat seriously?---
A: Yes, I was quite scared.[105]
[105]T 486
70 Murray presented as a credible witness and I accept his evidence.
71 David Robertson gave evidence that he was a crowd controller and security guard and that he ran “all the security at the hotels in Frankston.”[106] He said that on the night of the deceased’s death he was managing the security at Daveys when a group which included the deceased approached him:
“They just - they walked up towards the front door, Jerry was like out in front. I walked across and said, ‘You can’t - you know you can’t come in, you’re barred from here’, and his friends were all standing just like behind him, and I had - luckily enough I had the manager standing out on the front door with us at the time. He was there and heard it.”[107]
[106]T 531
[107]T 532
72 Robertson described the deceased’s behaviour at Daveys as follows:
“…two young kids that were being thrown out of the pub wanted to know why and they argued and stuff, because they were like asking and talking to us, Jerry got upset because he wasn’t being spoken to and punched one of the young guys in the throat…”[108]
[108]T 532
73 Robertson said that the deceased made contact with the young man by means of a closed fist and that this assault by the deceased was in no way provoked. Robertson continued:
“When I went back to the - as I was saying, when I went back to the door because I thought he was threatening the manager, that’s when the manager had said to one of his friends that they can’t come in, they weren’t dressed right because the dress code rules, you know, and Jerry was barred and his friend said, ‘Come on, let’s just go, we’ll just leave’ and they started to walk away and that’s when Jerry turned around …
… and that’s when Jerry turned around to us and said, ‘We’re going across the road. If we don’t get in we’re going to bash them and we’ll come back here and bash you cunts’.
Q: What tone of voice did he say that in?---
A:Just as you would sort of yell out because of the – all the noise that was going on and all this sort of stuff.
Q: How close to you was he when he said this?---
A:From me to these two guys here sort of thing, away from the door.
Q: That would be two to three metres?---
A: Probably 10 feet.”[109]
[109]T 534
74 In cross-examination Robertson said that, as the deceased’s group left Daveys, whilst he had radioed the security personnel at the Night Club to forewarn them that the group should be refused entry to the Night Club, he did not advise them that the deceased had issued threats either to him or to the security personnel at the Night Club. Robertson was asked:
Q:“Surely if Jerry had threatened to bash them up if they weren’t let in and then come back and bash you up it would have been the most important thing to tell them, would it not?---
A: No.
Q: Why do you say that?---
A: It happens all the time.
Q: Does it? What, threats are made to you all the time?---
A: Yep.
Q: Are you taught to deal with them physically?---
A: It’s water off a duck’s back, isn’t it. It’s only a verbal threat.”[110]
[110]T 563
75 Whilst I accept that the receiving of threats may be a relatively common occurrence for a person working as a security doorman, had a threat of the type reported by Robertson been made by the deceased against the security personnel at the Night Club, I find it surprising that Robertson would not have mentioned the threat to the security personnel when he contacted them to advise them that the deceased’s group were on their way. For this reason I do not find the evidence by Robertson on this particular issue to be persuasive.
76 The evidence generally satisfies me however that :
· the deceased had a history of making threats and was prone to making threats;
· the deceased had, some years before, threatened Piddington in the way described by her;
· the deceased had threatened Murray in the manner described by him in his evidence.
77 I am also satisfied that the deceased, as described by Robertson and Murray, initiated some form of contact with the patron who was being evicted from Daveys. Having viewed the footage of the incident however, I am satisfied that the contact involved a relatively modest level of force which had no appreciable effect upon the victim and for this reason I am not persuaded that this incident adds any weight to the defendant’s case that Vong was threatened by the deceased.
78 As I have said however, the evidence of Piddington and Murray satisfies me that the deceased made the threats described by them; and I accept the position put by Mr Gorton SC, who appeared with Mr Clarke on behalf of the defendant, that the positive finding which I have made in this regard; namely that the deceased was a person who had made threats in the past and during the evening of the incident, provides support for Vong’s evidence that the deceased made a threat to him.
The CCTV footage of the behaviour of the deceased at Daveys and at the Night Club in so far as it is relevant to the allegation that the deceased threatened to stab Vong
79 My overall impression of the deceased’s behaviour as depicted by the CCTV footage generated both at Daveys and at the Night Club is that the deceased presented with a degree of arrogance and an expectation that he should be accorded specialised treatment at both venues.
80 At neither venue did the deceased join the queue which had been established for non-members, notwithstanding the fact that there were other patrons waiting in each queue.
81 At Daveys, the deceased made a direct approach to Robertson and was involved in what appears to be a relatively minor skirmish with a patron of Daveys who had been ejected from the premises and who had thereafter approached both the deceased and Robertson, clearly for the purpose of remonstrating with respect to his eviction. The general conduct of the deceased whilst he was at Daveys, does not, in my opinion, convey an impression of aggression, it is clear however that the deceased was prepared to initiate a physical confrontation with a patron which had the potential of developing further and this behaviour does in my opinion suggest that the deceased was not adverse to becoming involved in a violent physical altercation.
The relevance of the deceased’s criminal history as to the allegation that the deceased threatened to stab Vong
82 Whilst it is put that the deceased’s criminal history supports Vong’s evidence that the deceased threatened him, I am of the opinion that whilst the deceased’s criminal history has marginal relevance upon the issue that it provides little persuasive support for Vong’s evidence that a threat was made to him by the deceased other than that it tends to add weight to the observations which I have previously made as to my impression of the deceased as someone who was not adverse to involving himself in a physically confronting situation.
Does the CCTV footage of the incident support the allegation that the deceased threatened to stab Vong?
83 From the time of his arrival at the Night Club, the footage depicts the deceased generally walking around the front of the premises with his hands in his pockets. Again, the impression which is conveyed by the footage of the deceased is in my opinion one of casual arrogance married with a propensity to make a serious nuisance of himself. [111]
[111]This analysis is relevant only to the issue as to whether the footage provides support for Vong’s allegation that the deceased threatened him and has no bearing upon the issue as to whether Vong may have felt threatened by his observation of the deceased’s behavior.
84 The footage shows both the deceased and one of his companions pushing the doormen at the Night Club (it would appear with the aim of gaining entry to the Night Club), and being pushed away from the door of the Night Club (see the footage commencing at 34.53). It would appear that the primary instigator of this pushing match was the deceased’s companion and that the response was directed initially towards him, and subsequently and to a lesser extent, towards the deceased. At no time during this incident does the deceased appear to engage in any unduly violent behaviour. It is clear however that the deceased was a party to behaviour which was physical; confrontational; and in that sense aggressive.
85 The footage confirms the evidence of Vong and Adams that the deceased took hold of the stanchion to which the tapes setting a boundary around the entrance to the Night Club were affixed. It shows that:
· Immediately before the deceased reaches towards the stanchion, his hands are in his pockets.
· With his right hand in his pocket the deceased reaches with his left hand and appears to commence to remove the stanchion from its fixed position. As this occurs Adams, who is standing close by advances towards the deceased and appears to take hold of the stanchion. Thereafter, what might be described as ‘pushing and shoving’ takes place between Adams and the deceased as they appear to wrestle with the stanchion.
86 Again, the impression I gain of the deceased’s activities and demeanour from the footage is not one of extreme aggression or violence; that being said however the deceased’s action in attempting to extract the stanchion demonstrates that the deceased was prepared to physically interfere with the stanchion and I accept that this action by the deceased would probably give rise to an apprehension in both Adams and Vong that the deceased intended to employ the stanchion as a weapon.
87 At no time however does the deceased attempt to make aggressive contact with Adams with the use of his hands. To the contrary, the footage at 35.10 depicts the deceased, as Adams is quite appropriately pushing him away from the areas in which the stanchion had been located, to have his hands in his pockets. I accept however that this may well not have been the impression formed by Vong of the deceased’s actions given the distance which separated them of the short period of time during which the incident occurred. Further, the fact that Vong was not focussing his attention upon the actions of the deceased or Adams may well have led him quite reasonably to form the impression that a violent struggle was taking place.
88 At 35.11, the footage depicts the deceased commencing to walk around Adams. At this time, his hands are in his pockets. At the same time, Vong turns his head from the direction of a group of patrons located on his left and towards the deceased. At this time, Vong, Adams and the deceased are positioned virtually in a straight line; Vong at one end of the line; the deceased at the other; and Adams between Vong and the deceased, Adams being much closer to the deceased than Vong.
89 At 35.12, the footage depicts, Vong commencing to advance towards the deceased. At that time, the deceased is looking in the general direction of Adams and Vong and is walking in the general direction of Vong; not directly towards him but more around the area in which both Adams and Vong are located; the deceased’s direction of travel being such as to give both men a relatively wide berth. At no time does the deceased remove his hands from his pockets or alter the course of his movement so as to advance directly or in a threatening manner towards Vong or Adams. Rather, it is Vong who advances towards the deceased, makes initial contact to the deceased’s left shoulder with his right hand in the form of a push (this contact occurs at 35.13), and then strikes the deceased to the face with his left hand.
90 From the time that the deceased first arrived at the Night Club until the time when he was punched by Vong, my impression of the deceased’s behaviour is that of someone who is arrogant; is well prepared to make a nuisance of himself and is prepared to engage physically with the security staff in the form of pushing; but not someone who is exhibiting really aggressive or potentially life-threatening behaviour.
91 Equally, the respective positions of Vong, Adams, and the deceased; from the time the deceased commences to move away from Adams and up to the time he is punched by Vong, suggest in my opinion that if Vong’s advance upon the deceased was induced by a threat made by the deceased, Adams, who made no mention in his police statement of the deceased having made a threat, was likely to be in a position to hear it.
92 Given the impression I formed of the deceased’s movements and activities as described above; and failure by Adams to mention that the deceased threatened Vong notwithstanding my opinion that Adams was in a position to hear such a threat if it had been made; I am of the opinion that the footage does not provide positive support for Vong’s evidence that the deceased threatened him but rather tends to suggest the contrary.
The evidence relied upon by the plaintiffs as to Vong’s allegation the deceased threaten to stab him
93 The viva voce evidence adduced on behalf of the plaintiffs as to whether the deceased made a threat to stab Vong falls into the following categories:
(i) firstly, a number of witnesses said that they were not in a position to hear whether the deceased had made a threat to Vong;[112]
[112]See the evidence of Wakefield at T 202 and Cronin at T44
(ii) secondly, a number of witnesses said that they had not heard the deceased threaten Vong;[113]
[113]See the evidence of North at T62 and Wakefield at t 202.
(iii) thirdly, a number of witnesses said that although they had not heard the deceased threaten Vong, it was possible that he did;[114]
(iv) fourthly, a number of witnesses said that they were in a position to hear if any threat was made by the deceased to Vong and that no such threat was made.[115]
[114]See the evidence of Anning at T 382 and Kane at 132.
[115]See the evidence of Grey at T 415, Galluzo at T 270, Suckling at T 433
94 Given the various positions in which each of the witnesses who gave viva voce evidence on behalf of the plaintiffs were standing when the contact occurred, I am not satisfied that anyone other than Suckling would have been in a position to be likely to hear a threat made by the deceased to Vong. I accept Suckling’s evidence however that he was in a good position to have heard a threat made by the deceased and that he heard no such threat.[116]
In his statement Adams makes no mention of the deceased at any time issuing a threat either to Adams or to Vong or of the deceased advancing in an aggressive manner towards Vong.
[116]See the evidence of Suckling at T 433
The Failure by the parties to Call Evidence
95 Other than from Christian Adams, the defendant adduced no evidence from any of its staff who witnessed the occurrence of the incident. In this respect the failure by the defendant to explain the absence of evidence from Crowd Controller A, and from Ohiho, is in my opinion of significance. I have earlier commented upon the matters as to which Crowd Controller A may have given evidence. Gray gave evidence that Ohiho described the contact between Vong and the deceased as being unjust and unnecessary.[117] This evidence was unchallenged and, in my opinion, significantly undermines the position put by Vong that he was acting reasonably in his own self defence.
[117]See T 402.
96 Whilst I take into account the failure by the plaintiffs to adduce evidence from a number of witnesses as listed by Mr Gorton SC,[118] whether those witnesses were in a position to add any useful evidence to the large body of evidence adduced on behalf of the plaintiffs is less certain than my confidence as to the issues which I would have expected Controller A and Ohiho to have been able to speak upon.
[118]See T 939
Analysis of the Defence of Self Defence
Was a threat made by the deceased to Vong?
97 Firstly, my analysis as to this issue commences with the observation that, given that it was Adams who had been in physical contact with the deceased in the seconds immediately prior to the time at which the deceased was struck by Vong, I find it surprising that the deceased would choose to threaten Vong rather than Adams.
98 Secondly, in my opinion the footage of the incident itself shows Adams to be positioned closer to the deceased than Vong at the time at which Vong commences his advance towards the deceased. Having regard to the fact that it is Vong’s position that his contact with the deceased was initiated in response to the deceased’s threat to him and advance upon him, it appears unlikely to me that Adams (given his position) would not have heard a threat made by the deceased if the making of the threat was responsible for Vong’s advance upon the deceased.
99 Equally the footage makes it clear that immediately before Vong commences to move towards the deceased he diverts his attention from the group of people located immediately to his left and towards the deceased. That Vong focused his attention upon the deceased at this time could be consistent with his hearing a threat which he believed had been issued by the deceased. If it was however as I have previously observed I would have expected Adams to have heard that threat.
100 At the time Vong commences his approach towards him, the distance which separates the deceased from both Adams and Vong appears to be very similar (Adams appears to be as close if not closer to the deceased). In making this observation however I take into account the fact that caution should be applied in attaching weight to the appearance of distances shown in the footage which may be foreshortened by the camera lens. Given however, the proximity of the positions of the deceased, Vong and Adams which is suggested by the fact:
(i) That Adams describes Vong as being positioned just to his left at this time;[119]
[119] See the statement by Adams which is exhibit 5.
(ii) That only a few paces were required of both the deceased and Vong so as to place them into a position in which Vong could strike the deceased;
had a threat been issued by the deceased to Vong, I consider it to be likely that Adams would have been in a position to hear it. From the time at which Vong commenced to move towards the deceased, Vong’s advance upon the deceased was continuous and is not consistent with an advance motivated by a threat issued by the deceased at a time at which the threat would not have been heard by Adams.
101 In taking into account whether I should accept the evidence given by Vong that a threat was made by the deceased I am satisfied:
· that the deceased was not adverse to engaging in physical contact with others;
· that the deceased was a man prone to making threats;
· that the deceased was carrying a knife at the time of his death; and that the alleged threat made by the deceased to Vong involved the use of a knife;
· that Vong has consistently asserted that the deceased threatened to stab him and that he made that allegation at the first opportunity given to him namely at the time at which he made his police statement at 2.25 am on 13 May 2007;
and that each of these matters, with varying degrees of persuasive force, support the defendant’s position that a threat was made by the deceased.
102 Against these matters I balance -
(i) the fact that Vong is the only witness to give evidence that a threat was made and that I have not accepted the evidence given by Vong as to a number of matters which bear upon his assertion that he was responding reasonably to the threat posed to him by the deceased’s behaviour; including whether he punched the deceased. Whilst it does not follow that I should accordingly reject all of Vong’s evidence; that Vong’s evidence that he did not punch the deceased was given for the purpose of justifying his behaviour, as was his evidence that the deceased threatened him; causes me to approach the acceptance of that evidence with such caution that I do not find it to be persuasive in the absence of specific corroboration;
(ii) that I consider it significant, given my finding that Adams was probably positioned such that he would have been expected to hear the making of a threat, that he made no mention of the fact that the deceased had threatened Vong; [120] and that Suckling, who I am satisfied was in a good position to hear a threat if it was indeed made, gave evidence that no threat was made by the deceased. The failure by Adams to support Vong’s position that a threat was made and the forceful statement by Suckling that no threat was made, in my opinion provide the most persuasive evidence as to the issue whether a threat was made by the deceased;
[120]See the police statement of Adams which is Exhibit 5
(iii) the footage which depicts the deceased’s movements at the relevant time as involving no direct approach towards Vong but walking around him with his hands in his pockets. In this respect the deceased’s movements are in my opinion inconsistent with the deceased acting upon a threat to stab Vong and do not support the making of such a threat.
148 In the course of his evidence Dr Andrew Karamesinis said that each of the plaintiffs was extremely traumatised by the death of Andreas –
“… but they had hope. They had Jerry and his wife and they had a future, and things to look forward to, and they were distressed and saddened but not suicidal, not empty, not lost like they are now.
…
I think they went through a phase where they were actively feeling suicidal after the death of Jerry but not after the death of Andrew, and after that intense grief, I think now they have - they feel that there’s nothing left to live for, they have no future. They keep changing direction and not settling anywhere. They packed up their house and sent belongings overseas and then felt it was the wrong decision, and started sending things back again. Moved there, moved back, never settled, never able to move on from it. I guess I see them in a family capacity every three or four weeks, and there’s never anything to talk about other than the death of their children and the grief and the pain and the loss that they’re living.
Q:When they say there’s nothing to live for, is there any particular aspect of that, which is central or plays a major part in that feeling?‑‑‑
A:After Andrew’s death they still had the thought of Jerry and possible grandchildren, and new hope, new life coming from that, and with Jerry’s death they have lost that.” [147]
[147]T 158-159
149 As to Mrs Loukia Karamesinis, Dr Karamesinis opined:
“I think that Loukia was more affected by the death of Andrew because she was the primary carer, the mother figure looking after the young child, 24 hours a day. So, she sunk further earlier, and then she’s gone on to sink the rest of the way since the death of Jerry.”[148]
[148]T 160
150 As to Mr George Karamesinis, Dr Karamesinis opined:
“I’ve spoken to my Uncle George about losing weight, drinking less alcohol with the onset of Diabetes, and he said, ‘I know I should do those things but at least the alcohol numbs me and stops me from thinking for a short time, I’ve got nothing to lose if I die tomorrow, that’s okay’.”[149]
[149]T 159
and further:
“George still had significant hope for the future, through his son Jerry, and since Jerry died, he has become a shell of his former self. He was the loud noisy life-of-the-party brother within the family of that generation. Now, he will stay at home, sit in a dark room, not come out, not be involved - has to be dragged out to take part in anything that’s going on.
… George drinks alcohol to numb his feelings. He drinks to excess on a regular basis. He has tremor, he has an inflamed liver, he is developing Diabetes since 2010, he’s gaining weight rather than losing weight, he is unable to exercise, he can’t put his shoes and socks on any more because he can’t bend, because his stomach gets in the way. All this has happened since the death of Jerry.
… The Diabetes and onset (sic) is multifactorial, but clearly a major factor in this case is his lack of motivation to make any change in self help.
… Caused by the death of Jerry and the distress arising from that.”[150]
[150]T 160-161
151 In cross-examination, Dr Karamesinis agreed that after the death of Andreas and before the death of Jerry, George Karamesinis:
· was extremely depressed and that this situation continued up until the death of Jerry but that since Jerry’s death his symptoms had become worse;
· had been socially withdrawn;
· had lost motivation and enjoyment of life;
· had increased his consumption of alcohol;
· had not been amenable to psychological treatment;
· had expressed suicidal thoughts. In this respect, Dr Karamesinis opined that following the death of Andreas, he had not been concerned about his patient acting on those thoughts but that this had become a concern after the death of the deceased.
152 Dr Karamesinis opined that following the death of Andreas, Mrs Karamesinis had been severely depressed; had suffered from lowered mood, tearfulness, panic attacks, insomnia, weight gain, fibromyalgia, lack of motivation and suicidal thoughts; and that these symptoms continued up until the death of the deceased. He also expressed the opinion that by reason of the combination of cultural factors and disposition, Mrs Karamesinis was not amenable to psychological treatment.
153 Dr Dennis Velakoulis, a consulting neuropsychologist, first examined Mrs Loukia Karamesinis at the referral of her nephew, Dr Andrew Karamesinis, in April 2007. At that time he was of the opinion that Mrs Karamesinis presented:
“As a woman who looked the years (sic), who was tearful, distressed and at times almost inconsolable.”[151]
[151]Exhibit E - Plaintiff’s Court Book 86
154 He diagnosed Mrs Karamesinis as presenting with a major depressive illness in the context of unresolved grief.
155 Dr Velakoulis re-examined Mrs Karamesinis on 25 February 2008, at which time he opined:
· that any improvements in the grief that Mrs Karamesinis had experienced following Andreas’ death had been wiped away by “this next tragedy”;
· that her depression and unresolved guilt were consistent with the trauma of losing two sons within the space of seventeen months to unexpected and potentially avoidable incidents, both of which were caused by the actions of others;
· “the two deaths have had a devastating effect on Mrs Karamesinis’ life, her mental health and her marriage. She has a depressive illness and considers that treatment is futile, in the sense that it will not bring her children back and without them there is little to live for. The marital stress caused by the trauma have further compounded her sense of being alone”;
· that Mrs Karamesinis would require ongoing pharmacological treatment and monitoring and support from a psychiatrist or a psychologist skilled in the management of trauma and grief;
· that it was difficult to predict her prognosis given that she and her husband planned to return to Greece and were considering moving there permanently.
156 In the course of his viva voce evidence, Dr Velakoulis described his feeling at the time of his second assessment of Mrs Karamesinis that there had been –
“… some movement towards improvement after the death of the first, as one would expect with a complicated bereavement and depression, but the second death wiped that away.
Q: Replaced by what?‑‑‑
A:Well, it was really replaced by more complicated bereavement, depression, and I suppose in terms of the additional effect, almost a state of existential despair. Why, what’s the purpose of having raised two children when they’re taken away from you like this.”[152]
[152]T 99
157 Dr Velakoulis commented that whilst it was very difficult to place a percentage upon the added effect of the death of her second son upon Mrs Karamesinis, he said:
“Very difficult to put a percentage on these issues, but certainly the second time that I saw Mrs Karamesinis, she was significantly more distressed, depressed, and, as I mentioned, this sense of existential despair. I mean …
…[in] the sense that, ‘If I want to die, why shouldn’t I be allowed to die’.”[153]
[153]T 99-100
158 As to Mr Karamesinis, Dr Velakoulis opined that the deceased’s death removed any improvements which Mr Karamesinis had made following the death of Andreas. He agreed however that he had only seen Mr Karamesinis on one occasion; that is, following the death of the deceased, and accepted that the death of the deceased was very likely to be responsible for having a cumulative effect upon his presentation.
159 Dr Velakoulis was asked to attempt to quantify the effect of the loss of the deceased upon the presentation of Mr and Mrs Karamesinis, and opined:
“You’re unlucky enough to lose one child under very unusual circumstances, but to then lose a second child under circumstances that are equally inexplicable to yourself, I mean, it doubles that, if you like, or …
Q:Doubles, sorry, doubles what?‑‑‑
A:Well, it - you’ve had a double hit of the same unfair, tragic, unexplainable, out of your control event.
…
I think it impacts on the psychiatric state in terms of psychiatric illness, it impacts on psychological state in terms of one’s sense of self, one’s sense of where one sits in the world, one’s sense of what the world means and what is - what we’re living for.”[154]
[154]T113-114
160 Dr Albert Kaplan, a consulting psychiatrist, examined each of the plaintiffs in April 2008 and November 2011.
161 In his report dated 14 April 2008, Dr Kaplan opined as to Mr Karamesinis:
“Mr Karamesinis developed features of a Post-Traumatic Stress Disorder as the result of the traumatic experience at Agapi. He continues to experience intrusive thoughts, flashbacks and nightmares in relation to this event. … Mr Karamesinis was grief-stricken by Andrew’s death and then by Jerry’s death. These devastating losses have left him depressed and he experiences feelings of despair and hopelessness and views his life as having no meaning or purpose. The loss of young adult children produces the most powerful grief reactions and Mr Karamesinis is unlikely ever to recover from this grief and is likely to remain prone to depression for the remainder of his life.
(iv) In a further report dated 21 November 2011, Mr Kaplan opined:
“Mr Karamesinis’ grief has not subsided since I last examined him three-and-a-half years ago. He continues to experience profound grief over the loss of his sons and he gains no pleasure from his life. He experiences feelings of despair and hopelessness. He describes sleep and appetite disturbance, he has lost his libido, he is socially withdrawn and he is forgetful. He is prone to tears, his self-esteem has been affected and on one occasion he considered suicide. His prognosis is likely to be poor and his grief is likely to persist for the remainder of his life.
Mr Karamesinis continues to suffer from Post-Traumatic Stress Disorder related to the circumstances of his sons’ deaths. He experiences intrusive thoughts, flashbacks and nightmares and these symptoms are more prominent in relation to Jerry’s death. He describes heightened arousal and avoidance symptoms and his depression and anxiety are probably part related to this condition. His prognosis is likely to be unfavourable and his condition is likely to persist for the foreseeable future.”
162 In a report dated 18 April 2008 with respect to Mrs Karamesinis, Dr Kaplan opined:
“Mrs Karamesinis was traumatised by Andrew’s death and developed features of a Post-Traumatic Stress Disorder in relation to this event. Her symptoms have included recurring nightmares, intrusive thoughts and flashbacks of that event. In addition, she describes avoidance symptoms, hypervigilance, depression and anxiety. Her condition was further severely aggravated by the further trauma she experiences in relation to Jerry’s assault and death. She now, in addition, experiences intrusive thoughts, flashbacks and nightmares in relation to this event. Her prognosis is likely to be unfavourable and her condition is likely to persist for a prolonged and to some extent indefinite period of time. Her condition can be regarded as having stabilised.”
163 In a further report dated 21 November 2011, Dr Kaplan opined:
“Mrs Karamesinis’ grief in relation to the loss of her sons has not subsided and these losses are a constant preoccupation. In addition, the loss of the possibility of having grandchildren adds to her grief. She describes sleep and appetite disturbance, she has lost her libido, she tends to be irritable and her memory and concentration are impaired. She is no longer able to gain joy or pleasure from her life. Her prognosis remains as described in my earlier report.
Mrs Karamesinis continues to suffer from Post-Traumatic Stress Disorder and this condition is largely related to her circumstances of Jerry’s death. She continues to experience intrusive thoughts, flashbacks and nightmares in relation to this traumatic event. She describes avoidances symptoms and a heightened arousal. Her anxiety and depression are probably partly related to her Post-Traumatic Stress Disorder.
Mrs Karamesinis’ psychiatric conditions have had a major impact upon her lifestyle and her quality of life and this impact is likely to remain for the remainder of her life.”
164 In the course of his evidence during the trial Dr Kaplan opined with respect to Mr George Karamesinis, that he had developed a Post-Traumatic Stress Disorder as the result of the death of the deceased, the effect being that he had now lost both of his only children and that he had lost his healthy son and, accordingly, any opportunity for having grandchildren. He described the psychiatric condition of Mr Karamesinis as involving a Post-Traumatic Stress Disorder and a profound grief reaction in association with the loss of his son.[155]
[155]T 141
165 With respect to Mrs Karamesinis, Dr Kaplan opined that the effect had been very similar to that which he had described with respect to her husband. He opined that with respect to the Post-Traumatic Stress Disorder with which Mrs Karamesinis presented:
“… the loss of somebody through human violence tends to produce a more powerful affect and therefore that would have been a factor I think of the loss of her older son. The nature of that - the assaults and the nature of the experiences within the hospital subsequently.
…
… In a way it would have been a greater shock to lose the older son who was a fit and healthy individual. … .”[156]
[156]T 141-142
166 In cross-examination, Dr Kaplan accepted that the death of Andreas had produced in Mrs Karamesinis:
§ a feeling of emptiness;
§ symptoms of compulsive eating and weight loss;
§ insomnia;
§ a loss of libido;
§ avoidance of social activity and difficulties with concentration;
and that each of these symptoms were also causally affected by the death of the deceased. He described the death of the deceased being a loss associated with violence as tending –
“…to produce a more powerful act. The - the loss of the child who was disabled and had suffered considerable illness may not have been as much of a shock. It certainly was a shock. But certainly the loss of the healthy child would be a greater shock.”[157]
[157]T 144-145
167 Dr Kaplan agreed that following the death of Andreas, Mrs Karamesinis had developed a very significant Post-Traumatic Stress Disorder or depressive illness without any improvement and it was likely that that illness would be chronic. He opined however that had the deceased provided her with grandchildren –
“… I think that would I think that would have certainly had a very beneficial impact upon her mood, upon her condition.”[158]
[158]T 147
168 Dr Kaplan opined, with respect to the passage of time between the death of Andreas and the death of Jerry:
“I think you probably would expect some improvement, certainly with the Post-Traumatic Stress Disorder. With the grief, again, it’s difficult to say whether you’d expect it within that time frame. I can only say again that if the older son, who again was a support for them, given that they had this trauma to deal with throughout their lives with their younger son, had the older son had a family I think that, again, that would have had a very significant impact, certainly on the grief.”[159]
[159]T 148
169 Dr Kaplan opined, having regard to the relative lack of progress in Mrs Karamesinis’ condition between the death of Andreas and the death of the deceased that her prognosis for recovery in the absence of the intervention of the deceased’s death was “certainly would have been less favourable”, explaining:
“I think that’s all I could say although when I saw her the second time, from memory, she certainly seemed to be more preoccupied with the traumatic events revolving around Jerry’s death.”[160]
[160]T 149
170 As to whether the symptoms of depression and Post-Traumatic Stress Disorder with which Mrs Karamesinis presented gave rise to a recognised psychiatric condition, that with respect to her bereavement Dr Kaplan opined:
“The DSM would probably describe it as a Major Depressive Disorder if the grief has persisted for a long period of time but it’s a controversial area within psychiatry. …
…
… I would describe it as a depressive illness that - the grief was not resolved after a period of time, a considerable period of time, and therefore you have to describe this as a depressive illness.[161]
[161]T 150
Q:So, then, do I understand you to be saying that Mr and Mrs Karamesinis present to you with a sufficient grief reaction for you to say they have, independent of a post traumatic stress disorder, a depressive illness?‑‑‑
A:Yes, that’s correct, and the - the diagnosis was made by the psychologist and by another psychiatrist who examined them, and it was again a major depressive illness.
Q:That is a disorder that has been caused by the death of Andrew as well as by the death of Jerry?‑‑‑
A:By both, that’s correct.
Q:And, was that depressive illness in place after the death of Andrew and before the death of Jerry?‑‑‑
A:It was.
Q:Can you point to any particular symptom or incapacity that is resultant upon the death of Jerry that is not also resultant upon the death of Andrew?‑‑‑
A:No, the symptoms are much the same, with regard to the grief or depression, the loss is, again, this is the symptom.”[162]
[162]T 151
171 As to Mr Karamesinis, Dr Kaplan agreed that as the result of Andreas’ death, Mr Karamesinis had told him that he had “… lost interest. I don’t want to go out anywhere. I don’t want to watch television or listen to music”; that he had ceased socialising; that he suffered insomnia; that he had lost his libido and that he had experienced nightmares occurring two or three times a week when he would visualise the scenes of Andreas lying on the floor at the respite centre or in his coffin. Dr Kaplan further agreed that he had not been given any history of these symptoms improving in the period leading up to the deceased’s death. He said that Mr Karamesinis was presenting with severe depression and a Post-Traumatic Stress Disorder, in respect of which his prognosis was unfavourable.[163]
[163]T 154. In this passage of evidence, Dr Kaplan adopted the comments made by him in page 3 of his report dated April 2008 without specifically reciting them.
172 Dr Kaplan agreed that as at November 2004, the thinking of Mr Karamesinis was characterised by a pre-occupation with the death of both of his sons and that he presented with depression and profound grief regarding both of his sons. He agreed that there was no symptoms or incapacity in the presentation of Mr Karamesinis that Dr Kaplan was able to attribute to the death of the deceased that would not have been there had there been only the death of Andreas.[164]
[164]T 154-155
173 In re-examination, Dr Kaplan gave the following evidence:
Q:“How about the extent of those symptoms; what’s being put to you as I understand it is that the death of Jerry has not added to any of the consequences that were present at all as a result of the death of Andrew?‑‑‑
A:Clearly the death of Jerry would have severely aggravated both the conditions.
Q:In relation to one or both of the parents?‑‑‑
A:To both parents.
Q:Could you say in what way?‑‑‑
A:Well again - perhaps the most important distinction or difference is that they lost - it was a great shock to lose the son who was fit and healthy, it was an unexpected loss, it was a shock. The son who was disabled had been ill and had operations and it would not have been as quite a shock, although it certainly was a shock and it would have been devastating for them, and again most importantly that they lost the opportunity of having grandchildren, which is probably the most devastating difference.
Q:The fact that after the first death they were still left with one son, but after the second death they were left with no children at all. Is that a factor which you believe contributed towards their state?‑‑‑
A:I think it would be devastating, it’s unnatural.”[165]
[165]T 155-156
174 In commenting upon the effect which the death of Jerry had had upon Mrs Karamesinis when considered in the context of the previous death of Andreas, Dr Kaplan had said:
“Again, it’s very difficult to separate the two. They were deeply attached to both children. There were perhaps a couple of differences with regard to the post traumatic stress disorder, the loss of somebody through human violence tends to produce a more powerful effect and therefore that would have been a factor I think of the loss of her older son. The nature of that - the assaults and the nature of the experiences within the hospital subsequently.
Q: What experiences are you referring to?---
A:When he was on life support, when he – they had to – they were given the choice of donating his organs.
Q:Yes. Their general condition now, how would you describe it and particularly their attitudes towards the future and the worth of life?---
A:They’re absolutely devastated and they see their lives as being meaningless. Again they’ve lost both children and they’ve lost, again, the opportunity to have grandchildren.”[166]
[166]T 141, L28 – T 142, L14
175 Although this passage of evidence was given in response to the condition of Mrs Karamesinis, it is clear that in his response, Dr Kaplan was referring to each of the plaintiffs, and I interpret his comments in that way.
Analysis as to Damages
176 In assessing the damages to which the plaintiffs are entitled in this case, the following principles apply:
(i) The plaintiffs are not entitled to compensation in respect of the normal grief and anguish following the death of a loved one. In awarding damages to the plaintiffs, I must compensate the plaintiffs only for the psychiatric injury which they have suffered by reason of the death of their son.[167]
[167]See Marinko v Masri [1999] NSWCA 364
(ii) The damages which the defendant should pay to the plaintiffs is that sum which will put each of the plaintiffs, so far as possible, “in the same position as they would have been in if they had not sustained the wrong for which they each are now getting their compensation”;[168]
[168]Livingstone v Rawyards Coal Company (1880) 5 App Cas 25 at 39; Nominal Defendant v Gardikiotis (1996) 186 CLR 49
(iii) The plaintiffs bear the legal onus of establishing the nature, extent and duration of the injuries which each of them has sustained by reason of the defendant’s negligence;[169]
[169]Purkess v Crittenden (1965) 114 CLR 164
(iv) Where the defendant’s negligence causes injury to a plaintiff with a pre-existing condition and the defendant’s position is that the damages to which the plaintiff is entitled should take into effect the probable future consequences of that pre-existing condition the position with respect to the onus of proof is succinctly described by Kyrou J in Clark v Tieman Industries Pty Ltd,[170]as follows:
[170][2011] VSC 500 at paragraphs [136]-[140]
“(a) Once the plaintiff has established a prima facie case that his or her incapacity has resulted from the defendant’s negligence, an evidential onus of proof shifts to the defendant to introduce evidence — as part of its substantive case or by way of cross-examination in the plaintiff’s case — that the plaintiff’s incapacity is wholly or partly the result of the pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from the pre-existing condition.
(b) In the absence of such evidence by the defendant, if the plaintiff’s evidence is accepted, the plaintiff will be entitled to an award of damages and no issue will arise as to the existence of any pre-existing condition or its prospective results or as to its relationship with the plaintiff’s incapacity.
(c) In order to discharge the evidential onus, it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition or a relationship between any such condition and the plaintiff’s incapacity. The defendant must introduce evidence of both the pre-existing condition and its future probable effects or its actual relationship to the plaintiff’s incapacity which, if accepted, would establish with some reasonable measure of precision what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be.
(d) If the defendant discharges the evidential onus of proof, it is for the plaintiff, upon the whole of the evidence, to satisfy the court of the extent of the injuries caused by the defendant’s negligence.
The court distinguishes between proof of historical facts (that is, what has happened in the past) and proof of future possibilities and past hypothetical situations (that is, what would or might have happened). The civil standard of proof applies to the former but not to the latter.
In the case of historical facts, the court determines on the balance of probabilities whether an event has or has not occurred, and makes an assessment of damages on an ‘all or nothing’ approach in relation to that event.
However, in the case of future or hypothetical events, which are generally not amenable to proof, the court takes a different approach. The court takes these events into account in the assessment of damages in terms of the degree of probability of their occurrence. That is, except in the extreme cases of mere speculation or practical certainty, the court makes an estimate of the likelihood that an event would have occurred in the past or might occur in the future and adjusts its award of damages accordingly to reflect the degree of probability. This approach is based on the principles set out in Malec v JC Hutton Pty Ltd (Malec principles).
The principles discussed at [136] above about the evidential onus of proof are qualified by the Malec principles. In Seltsam Pty Ltd v Ghaleb, Ipp JA, with whom Mason P agreed, explained the interrelationship between the evidential onus principles and the Malec principles as follows:
Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of ‘disentanglement’ discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations — not proof on a balance of probabilities.
Without intending to give an exhaustive list of possibilities, it may be that, had the defendant’s negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff’s enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant’s negligent act might have contributed to the plaintiff’s ultimate condition.
Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant’s negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation.”
177 In the present case, it is not in issue that the plaintiffs have made out their legal onus of establishing that the defendant’s negligence has caused them to suffer injury in the form of a significant aggravation of the pre-existing condition with which they presented by reason of the death of Andreas.
178 I am of the opinion however, that the evidential onus upon the defendant to introduce evidence which would have enabled me to form an opinion as to the future effect of the pre-existing condition from which each of the plaintiffs suffered with some reasonable measure of precision, both with respect to its nature and its future developmental progress, has not been made out.
179 In these circumstances, the approach which I will take in the proceeding is to compensate the plaintiffs without discount in respect of the consequences to each of them of the compensable injuries with which they present, taking into account as a starting point that the defendant is not liable to compensate the plaintiffs in respect of injuries suffered by them by reason of the death of Andreas insofar as those injuries impacted upon the plaintiffs as at the date of the death of the deceased.
180 Insofar as the “Malec principles” have application to this case, I am satisfied that the prognosis for recovery by each of the plaintiffs from the illness caused by the death of Andreas has been effectively expunged by the death of Jerry and the injuries suffered by them by reason of their loss of Jerry; and that for this reason the “Malec principles,” insofar as they might call for a reduction in the damages which should be awarded to the plaintiffs, have little application to this case.
181 I am satisfied, having regard to the evidence of Mr Kaplan, that whilst each of the plaintiffs developed very significant grief-related symptoms in association with the death of the deceased, their presentation at this time is due to the pathological process described by Mr Kaplan in his evidence and, as such, is compensable.
182 In assessing the damages to which the plaintiffs are entitled I am equally satisfied that I should not ignore the fact that, by reason of the death of Andreas each of the plaintiffs had suffered significant emotional insults in the form, initially of what might be described as a grief reaction, but which had most probably at the time of the death of the deceased developed into a recognisable psychiatric condition; and that I should take that factor into account when fixing the damages to be awarded to each of the plaintiffs.
183 I am satisfied that, notwithstanding the death of Andreas, each of the plaintiffs derived great pleasure from their relationship with their son, Jerry, who kept in regular contact with them and was to them a loving son.
184 Equally, I am satisfied that the prospect for the plaintiffs that Jerry may present them with grandchildren was of great importance to them and that, had that prospect materialised, it would most probably have had a very significant ameliorating effect upon the illness which each of them had developed by reason of the death of Andreas. I am further satisfied that, whilst the prospect of grandchildren was for the plaintiffs no more than a chance, their belief that that chance would eventuate and the consequences to the plaintiffs of the loss of that chance in terms of its effect upon their mental states, cannot be overestimated.
185 I had the opportunity of assessing each of the plaintiffs as they gave evidence. My impression of the effect upon each of them of the loss of both their sons was that, whilst each of the plaintiffs was significantly damaged by the loss of Andreas, the loss of Jerry has devastated them, stripping them of any hope with respect to the future, or of prospect of recovery from their illness. I accept that, to the plaintiffs their family life and their association with their sons gave definition and purpose to their lives, that with the death of Andreas, whilst that definition and purpose was damaged, it has been effectively destroyed with the death of Jerry.
186 In closing submissions, Mr Hore-Lacy, SC, who appeared with Mr Hills on behalf of the plaintiffs, and Mr Gorton, SC, who appeared with Mr Clarke on behalf of the defendant, submitted that the sum of damages which should be awarded to each of the plaintiffs to compensate them for their pain and suffering and loss of enjoyment of life should be an identical sum. Having considered the evidence in the case, I am satisfied that the joint position contended for by Counsel is one which is appropriate.
187 In fixing the damages in this case, I am satisfied that the severity of the psychiatric conditions from which the plaintiffs suffer is not appropriately judged by reference to the treatment they have received or the medication which they take and I consider Dr Karamesinis to be well-placed in describing the effect which the death of Jerry has had upon their health. Whilst it may be said that Dr Karamesinis was not impartial having regard to his relationship with the plaintiffs, his evidence largely accorded with that of the other medical experts who gave evidence in the case and I consider it to be reliable and persuasive. His evidence speaks of the plaintiffs being constantly focussed upon the death of their children and the “loss that they’re living”. He describes Mr Karamesinis as becoming reclusive, as drinking to excess and as having a number of medical conditions, including an inflamed liver and diabetes, which have been aggravated by his lack of motivation to make any change and self-help. As to Mrs Karamesinis, Dr Karamesinis commented that she was more affected by the death of Andreas because she was the primary carer “so she sank further earlier, and then she’s gone on to sink the rest of the way since the death of Jerry”.
188 Notwithstanding that the starting point in the assessment of damages in this case is that each of the plaintiffs was damaged by the death of Andreas, I am of the opinion that it is appropriate to assess the General Damages to which each of the plaintiffs is entitled as follows:
Petkos Karamesinis - $175,000
ONE HUNDRED AND SEVENTY FIVE THOUSAND DOLLARS.
Loukia Karamesinis - $175,000
ONE HUNDRED AND SEVENTY FIVE THOUSAND DOLLARS.
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