Lewis v Clifton

[2011] NSWDC 79

District Court

New South Wales

Medium Neutral Citation:	Lewis v Clifton & Ors [2011] NSWDC 79
Hearing dates:	25/7/11-29/7/11
Decision date:	29 July 2011
Jurisdiction:	Civil
Before:	Elkaim SC DCJ
Decision:	See paragraph 134
Catchwords:	Personal injury. Duties of hotel.
Legislation Cited:	Civil Liability Act 2002
Cases Cited:	Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
Category:	Principal judgment
Parties:	Jason Michael Lewis (Plaintiff) Alan Grant Clifton (First Defendant) Charlene Myree Usher (Second Defendant) Mathea Anne Usher (Third Defendant) Trent Andrew Usher (Fourth Defendant) Luke Anthony Usher (Fifth Defendant) Paul Christopher Macgregor (Sixth Defendant) Rodney James Ross (Seventh Defendant) Nicole Joanne Ross (Eighth Defendant)
Representation:	T Boyd and J Cairn (Plaintiff) D Morgan and B Palmer (Defendants) Herbert Weller Solicitor (Plaintiff) Boyd House & Partners (Defendants)
File Number(s):	2008/00318704

Judgment

1. On 28 August 2005 the plaintiff was crowned the NSW Light Welterweight Amateur Boxing Champion. Following his successful bout the plaintiff celebrated at the Vandenberg Hotel (the 'hotel'). At about 1.30am the plaintiff was assaulted in the urinal by a Mr Shelker. He was injured.

1. The plaintiff's injuries were widespread. An injury to his right leg was serious. Its effects will remain with him for the rest of his life. The plaintiff blames the defendants for the assault. He says it was caused by their negligence and he seeks damages by way of compensation.

1. The defendants make up a partnership that runs and operates the hotel. The first defendant is the licensee. The defendants admit they owed the plaintiff a duty of care. They deny there was a breach of the duty. They also dispute the severity of the plaintiff's injuries and therefore the quantum of the damages claimed.

1. The action is governed by the Civil Liability Act 2002 (the 'CLA').

Plaintiff's background

1. The plaintiff was born in 1972. He left school at the end of Year 10 and has spent the majority of his working life in the quarry industry. The details can be seen in the chronology (Exhibit F). By the time of the assault the plaintiff had reached the position of Quarry Manager. He maintains this post. The plaintiff's current wage is $1,690 net per week. His salary history is set out in Exhibit J.

1. The plaintiff had hoped to be an Operations Manager. He is concerned that his injuries will prevent this occurring. He is also worried that he cannot sustain his present position.

1. The plaintiff's first amateur boxing match was in 1996. Since then he has had about 70 fights. He lost about 17 of them. The plaintiff has represented New South Wales. He hoped to turn professional if only on a part-time basis. The injury to the plaintiff's right leg effectively terminated his boxing career because it prevents him from maintaining the necessary training regime.

1. Under cross-examination the plaintiff conceded that by August 2005 no preparatory steps were in place to commence a professional career. He said the aspiration was "a dream" . His honesty essentially placed any damages for his inability…