Lewis v Clifton
[2011] NSWDC 79
•29 July 2011
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
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.
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.
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.
The action is governed by the Civil Liability Act 2002 (the 'CLA').
Plaintiff's background
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.
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.
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.
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 to turn professional into the realm of non-economic loss, as an expression of his disappointment, rather than as a component of actual economic loss.
The assault
The plaintiff travelled to Forbes with his wife, his father and his three children. The boxing competition was at the local 'RSL'. The fight finished at about 10.30pm. The plaintiff took the children back to the motel where they were staying and they remained with the plaintiff's father.
The plaintiff and his wife then joined a number of friends and went to the Vandenberg Hotel. The friends, mostly team mates, included Mr Ashley Hall, Mr Wayne Borg, Mr Jason Stephenson, Mr Scott Dunn and Mr Scott White. The group arrived at the hotel at about midnight and went to the bar. The plaintiff had not consumed alcohol earlier in the evening.
After a short period the plaintiff heard shouting and loud noise. He looked over to the other end of the bar and saw a fight in progress. One of the participants was "a big dude" . Other people, including bar staff, tried to get the participants to "settle down" . The plaintiff noticed the big man stayed in the same place and continued drinking. The plaintiff said he had not seen the big man before. I will refer to this event as the 'first fight'.
It was put to the plaintiff, in terms, that the first fight had not occurred at all. He disagreed. The same proposition was put to each witness that gave evidence of this fight. Each witness rejected the suggestion.
A little later the plaintiff, and the group, moved to the other side of the bar where there was a band. He began dancing with his wife and consumed another schooner of beer.
The plaintiff went to the toilet. He was at the urinal talking to a colleague, Mr Wayne Flitter. The plaintiff was wearing a Windsor Boxing Club shirt. He heard a man say: " - " Here's the boxer. Oh, here we've got the big time hero boxer". He replied: "What are you, mate? A hero yourself." He felt that the body language of the other person was aggressive. He said he did not want any trouble. He "zipped up" and the next thing he found was that he was on the ground. He had been knocked unconscious, albeit very briefly. Although other people were trying to restrain the assailant he was still kicking the plaintiff in his leg and ribs. As the plaintiff was escorted from the toilet the aggressor hit him once more.
The plaintiff was covered in blood but did not require stitches. He went back to the motel where he " cleaned himself up" . The plaintiff knew his leg was not actually broken but the pain was such that he thought it might have been.
The plaintiff said that although he had not paid particular attention to the assailant's features he was of the view that it was the " big dude " who had participated in the first fight. The defendants conceded that the plaintiff was assaulted by Mr Shelker. If I accept the plaintiff's evidence (and that of a number of other witnesses) about the first fight (that it occurred and who participated), then it follows that Mr Shelker was involved in the first fight.
The defendants tendered a statement made by the plaintiff to the police (Exhibit 6). It was not signed but the plaintiff accepted it was his statement. Although the statement is broadly in accord with the plaintiff's evidence the defendants highlighted two notable differences. Firstly there is no mention of the first fight and secondly the sentence: "I didn't recognise this guy and I don't remember ever seeing him before." (Paragraph 4)
I agree that the absence of the first fight is an inconsistency although I think the interpretation of " before " may be a little strict. It could equally apply to the period before the plaintiff came to the hotel. As will be seen I found the plaintiff to be an honest witness. In addition he had considerable support from other witnesses. Accordingly I do not think Exhibit 6 imperils the plaintiff's version.
Mr Jason Stephenson, an electrician, gave evidence about the events of the night. Despite saying " you wouldn't really call me a boxer " he gave his evidence with the confidence and bravado often associated with professional pugilists. He seems to have been in the plaintiff's support team. He was not participating in the competition.
Mr Stephenson described standing at the bar and then hearing the fight "on the other side of the bar" . The identification of where of his group and the other group were located is different to that described by the plaintiff (Exhibits D and 2 respectively).
Mr Stephenson described one of the participants in the fight as tattooed, very aggressive, slurring his words and incoherent. He said that he was drunk and aggressive toward the hotel staff that tried to break up the fight. The "bouncers" were successful and the fight was stopped. However, the tattooed man remained in the same area and continued making a lot of noise until the music started. Mr Stephenson was not sure if the music came from a " DJ " or a band.
Some time later Mr Stephenson said he became aware of something happening to Jason in the toilet. He went to the scene and found the same tattooed man being restrained by two of his friends. Once again he described him as aggressive, drunk, slurring his speech and incoherent. In addition he could smell alcohol about him.
A number of people came into the toilet and the bouncers tried to separate the various camps.
Mr Stephenson said that while in the toilet he said to the tattooed man: "Why would you do that?" One of the big man's friends responded "Just let it go" .
Mr Stephenson said he had never made a statement in relation to the incident. The plaintiff's solicitors had approached him within about a year of the event to discuss it with him. He said he had never spoken to any of the other group, or the plaintiff, about what had happened. He said he had a good memory, although after some confusion he accepted that his memory would have been fresher closer to the event.
Mr Stephenson was a less impressive witness than the plaintiff but nevertheless his depiction of a fight occurring in the bar was convincing. Mr Stephenson was perhaps a little too sure of himself and the capacity of his memory. Nevertheless, in particular because of the general similarities with the plaintiff's and other evidence, I accept the first fight did occur and that the tattooed man had behaved in an aggressive fashion.
The next witness called by the plaintiff was Mr Wayne Borg. He is a butcher working for Woolworths. He has known the plaintiff for a number of years both as his trainer and boxing partner.
Mr Borg was a competitor at Forbes. He fought before the plaintiff and was also successful. After his fight he joined the spectators to watch the remainder of the card.
Mr Borg said that he noticed a VIP section that was made up of a number of tables on a stage. He thought the people at these tables were local supporters because of the apparent recipients of their support. Mr Borg noticed amongst these people a man who was bigger than the rest. He was decorated with tattoos and he was "loud and rowdy" . He was often standing, yelling and stumbling.
At the end of the competition Mr Borg joined his team in going to the hotel. He was asked for his ID at the door. He was "up for the first shout" so he went to the bar and waited to order drinks. While waiting Mr Borg said a fight broke out near him, close enough for him to see it clearly. He recognised one of the participants as the tattooed man from the VIP section. He said that hotel staff broke up the fight but the tattooed man, and perhaps others, continued being noisy.
Mr Borg said he returned to his group and distributed the drinks. Later he was dancing.
Mr Borg said that he next saw the tattooed man in the doorway of the toilets. He had run there in answer to a call that the plaintiff had been hit and was bleeding. He found the plaintiff covered in blood, and dazed. Other people were holding the tattooed man back, although he was still trying to attack the plaintiff.
Mr Borg said he was very upset and angry about what he had seen and spoke to the doorman. He said to him: " This shouldn't have happened. He was in a fight earlier and he was causing trouble all night and he should've been thrown out earlier" . There was no response to Mr Borg's complaint. To the contrary he said the doorman simply "smirked" . Unfortunately this allegation was not put to the person who was probably the doorman when he gave evidence (Mr Alan Clifton). Of necessity, I will disregard the comment.
A little later, outside the hotel, Mr Borg heard the tattooed man boasting about his exploits. Mr Borg approached him and said something to him. In return he received a punch and a bite on his back after he had fallen to the ground.
In relation to the plaintiff's current condition Mr Borg said that the plaintiff could no longer run with him and could only do some "pad work" .
Under cross-examination Mr Borg accepted that his memory was better closer to the event and that it was a struggle to remember the detail. He was asked a number of question about who he had spoken to and when about the events. He freely conceded that he had spoken to others, noting that the event was significant. This line of questioning was put to most of the plaintiff's witnesses but the questions did not go so far as to suggest any collusion, conspiracy or dishonesty in plain terms.
The closest the defendants came to suggesting dishonesty was to put to the respective witnesses that the incident in the hotel involving the tattooed man had not occurred. This suggestion was obviously one of dishonesty yet it was not put in those plain terms. I do not criticise counsel for the defendants for his approach but one must bear in mind that if dishonesty is to be suggested it must be done in stark terms.
Returning to Mr Borg's evidence, he said that the fight in the hotel did not last for very long. He did not think it lasted for five minutes, as had been suggested by Mr Stephenson. I note here that Mr Stephenson was clearly incorrect in his estimate. Mr Borg said that he could not recall the layout of the hotel and was not assisted by a diagram.
The next witness was Mr Ashley Hall. Like Mr Borg he was an impressive witness. He gave his evidence simply, he answered questions directly and he made concessions where appropriate.
Mr Hall has also been a boxer for some time. He unfortunately was not successful in his fight at Forbes so that he returned to the change room somewhat disappointed and remained there for about half an hour. He then went into the hall but did not notice any particularly untoward behaviour amongst the spectators.
He said that there were lots of people who were yelling and screaming.
Mr Hall joined his friends at the hotel. Soon after arriving he noticed a fight or scuffle had broken out. There were " two blokes" throwing punches. The fight did not last long. It was about 10 metres away from him. He noticed that one of the participants was a big man with tattoos. Some time later Mr Wayne Flitter called out that the plaintiff was being bashed so he, and others, ran to the toilet area. He found the same tattooed man being restrained but still trying to attack the plaintiff. The plaintiff was dazed. His assailant was dragged out the back door of the hotel.
Under cross-examination Mr Hall was shown a statement he had signed in July 2009. He accepted it was his statement. The document was not tendered.
Mr Hall said that there was no trouble in the hotel between the fights. Mr Hall was asked to indicate various matters on a sketch plan (Exhibit 3). He said that his points of location were subject to a margin of error of some metres. On this basis his plan is consistent with that of the plaintiff's in relation to where the group was standing and where the other scuffle took place.
The next witness was Mr Wayne Flitter. He was only located on the day before his evidence and has not been in touch with the group for some time.
He has been a boxer for 30 years. He knows the plaintiff well and trained with him. He also competed in Forbes for the NSW Light Heavy Weight title. He was successful.
He was part of the group at the hotel.
Mr Flitter said that shortly after arriving at the hotel he noticed "a couple of big lads hooking into it just across the bar" . He said the fight was long for a pub brawl, it perhaps lasted as much as 30 seconds. Mr Flitter's evidence I think emphasises the degree to which Mr Stephenson's five minutes could not have been correct. The fight was broken up by security staff.
A little later Mr Flitter said he was in the toilet with the plaintiff. There was no one else there. Three men entered; one remained at the door, another was in the middle and the third approached the two men at the urinal. This third man, the man with the tattoos, addressed the plaintiff using words roughly consistent with those described by the plaintiff. The plaintiff responded that they did not want any trouble.
Mr Flitter then described a king hit on the plaintiff that threw him to the ground. There were then other punches thrown including at Mr Flitter.
Mr Flitter said that he had seen a doorman when he walked in. He accepted there had been no trouble between the two fights. He denied that he had made up his evidence about the first fight.
Mr Scott White was another impressive witness called on behalf of the plaintiff. Although he has been a boxer he did not attend the Forbes RSL to compete. He was a spectator.
He said that he noticed a large person at the tables at the RSL venue. He was noticeable for the tattoos on his arms and neck and for his loud and rowdy conduct. He was drinking alcohol.
Mr White went to the Vandenberg Hotel but separated from the main group. He said he stayed on the left side of the room near the band. He was talking to another person (from outside the group). He did not see the altercation involving the tattooed man shortly after the group arrived. He did, however, see this person later in connection with the assault on the plaintiff. He saw that the assailant was being restrained and he was yelling.
Under cross-examination Mr White repeated that he did not see the first fight. He said he did not notice any trouble "on the side I was" . This qualification, which was produced by cross-examination is important. Bearing in mind the evidence of the other witnesses, other than Mr Stephenson, it is feasible that the first fight occurred without being noticed by Mr White, in particular if he was on the other side of the bar. This feasibility became more probable when Exhibit 10 was tendered. Unlike the sketches the photograph shows there is a dividing wall between the bars. I do not consider his evidence as inconsistent with the occurrence of the fight; rather I simply treat Mr White as a person who did not see the first fight.
Mrs Kerry Lewis, the plaintiff's wife, gave evidence. She too was impressive. Mrs Lewis said that she went to the Vandenberg Hotel. Her memory, which she said was good and had not diminished over the years, included her husband, perhaps accompanied by Mr Borg, going to the bar to get her first drink. After he returned she said she noticed a fight at the far corner of the bar. Her diagram (Exhibit 4) is I think generally consistent with the bulk of the diagrams that were tendered (but specifically not including that marked by Mr Stephenson).
Mrs Lewis noticed the tattooed man was one of the participants in the fight. She had, in fact, seen him earlier at the RSL Club sitting near the bar.
Mrs Lewis did not pay particular attention to the first fight in the hotel and could not say how it had ended.
Later in the evening, perhaps after about an hour, Mrs Lewis heard Mr Flitter yelling out that "Jason's been king hit" . She rushed to the toilet area to help. The plaintiff was brought out and she left with him. Before leaving she spoke to the doorman and said to him: "Look what he's done to my husband" . She did not recall any response. This conversation was also not put to Mr Clifton.
Neither the plaintiff nor any of his witnesses were challenged on the events that occurred in the toilet. There was no dispute that Mr Shelker had assaulted him. There was no dispute that Mr Shelker is a large man with many tattoos.
At the commencement of the defendants' case their learned counsel informed me that material that had recently come to his notice indicating there had in fact been a first fight, although not necessarily involving Mr Shelker. Counsel said that he withdrew any proposition put to the plaintiff and his witnesses to the extent that it was suggested that there had not been any earlier incident. Plaintiff's counsel said he did not require the witnesses to be recalled to have the corrected position put to them.
The defendants called Mr Alan Clifton to give oral evidence. He is the first defendant. In 2005 he was the licensee of the hotel and a part owner. He held a security licence. A "masters licence" was held by a Ms Charlene Usher. This licence enables external security to be engaged by the hotel.
In relation to security, as I understood Mr Clifton, he would normally be the only designated security officer present at the hotel. If he anticipated a particularly busy evening or some other relevant event, he would hire extra security. Mr Clifton said that he was solely in charge of security. No independent risk assessment had ever been conducted.
On the night of 27 August 2005, a Saturday, no extra security staff were present. The staff on this night included himself, generally acting as a doorman, three bar staff (Ms Lilla Reidy, Mr P J Reid and Ms Kate McNair) and a " glassy " (Mr Elliot Kinsella) who collected glasses and generally patrolled the remainder of the hotel. Mr Kinsella had no security role. He would report any incidents to Mr Clifton.
Mr Clifton said that the policy of the hotel was that people who engaged in fighting were immediately ejected. This is reflected in signs both inside and outside the hotel (for example, see Exhibit 8).
On 27 August 2005 Mr Clifton recalled Mr Shelker, who he described as a large man with tattoos, enter the hotel. It was not suggested to him that Mr Shelker was then intoxicated.
Mr Clifton said that at about midnight two police officers were doing "a walk through" when they came across an incident involving two men. They ejected the perpetrators. Mr Clifton did not see the incident but was told about it by the officers and also by Mr Kinsella. He made an entry in an incident book (Exhibit 9). The entry would only have been made some time after the incident and, notably, at the same time as he recorded the incident involving the plaintiff.
Exhibit 9 reveals that the two persons involved were barred. The name of one of them is recorded but not the other. Mr Clifton said this was because the second person's name was not known. Both persons were barred for six months.
I understood the barring policy was as follows. Any person ejected was automatically barred for 24 hours. It was then at the discretion of the hotel whether any extended period would be applied. It is difficult to understand how the unnamed person was barred. In relation to the named person Mr Clifton said that Forbes was a small town and he would have found out about the barring through the local grapevine.
Mr Clifton said that had Mr Shelker been involved in the earlier incident he would have been immediately barred. The blank left for the name of the second person in the earlier incident, bearing in mind that both incidents were recorded at the same time, raises a degree of suspicion. If Mr Shelker was involved in the earlier incident there was some incentive, following the later more serious incident, for Mr Shelker's name to have been omitted. That scenario was not, however, put to Mr Clifton so that I do not think I could translate the suspicion into a finding. It was also not put to Mr Clifton that he could not exclude Mr Shelker as having been involved in the first incident. I note that Mr Shelker would have been in the hotel when the first fight occurred.
It seems to me that the appropriate way to approach Mr Clifton's evidence is to accept that he did not see Mr Shelker being involved in the first fight but that his involvement could not be excluded. This resolution is consistent with my acceptance of the plaintiff's witnesses who positively identified Mr Shelker as being involved in the first fight.
In respect of the second fight, Mr Clifton said he was alerted to it by Mr Kinsella. He went to the toilet area. Mr Shelker was sent out the back door and the plaintiff was sent to the front. Mr Clifton recalled wiping some blood off the plaintiff. He thought he might also have offered to call the police and an ambulance.
Mr Shelker was barred for 12 months. After this period he returned to the hotel and was involved in another incident. On 9 September 2006 he once again punched another patron " for no reason. " (Exhibit 9). He has been barred for life. No bar was placed on the plaintiff.
Mr Clifton was the only witness called by the defendants. Learned counsel for the defendants had foreshadowed 3 witnesses:
"MORGAN: Yes, your Honour. I'll be calling the proprietor, licensee and bouncer. He's all of those things and the lady who we believe was serving alcohol very close to this location and the bar useful, who was collecting glasses in the area and they will all put squarely in issue whether this event ever occurred." (T 102.6)
I assume the change of tactics was caused by the matter I referred to in paragraph 61, above. I think I can comfortably draw an inference that the other witnesses whose evidence was contemplated would not have assisted the defendants' case. It is to be recalled that Mr Kinsella, a foreshadowed witness, would have been present when the first fight occurred.
On the basis of the evidence led in respect of liability I am satisfied of the following:
(a) Mr Shelker was present at the RSL and watched the fights.
(b) Mr Shelker went to the hotel and was present when the plaintiff arrived or from shortly thereafter.
(c) Although Mr Shelker had consumed alcohol at the RSL the evidence does not establish that he was in a state to justify the hotel not admitting him or refusing to serve him alcohol.
(d) A fight broke out in the hotel shortly after the plaintiff and his group arrived.
(e) Mr Shelker was a participant in the fight, which included an exchange of punches.
(f) The fight was broken up by persons including hotel staff. Mr Shelker was permitted to remain in the hotel.
(g) Although Mr Shelker may have continued to be loud, perhaps even yelling, he did not otherwise misbehave over about the next hour.
(h) Mr Shelker attacked the plaintiff in the toilet. The attack included a " king hit " to the head followed by kicks to the chest and right leg of the plaintiff.
(i) The attack was not caused by anything done or said by the plaintiff. It was entirely unprovoked.
At the commencement of the hearing the defendants sought leave to file an Amended Defence. No objection was taken and leave was granted.
Paragraph 12 of this document relies on Section 54 of the CLA suggesting that the plaintiff had been involved in some criminal activity. No questions were asked of the plaintiff suggesting any such involvement. For this reason I enquired if the allegation was pressed. I was informed that paragraph 12 was not relied upon.
Non-medical experts
A report was tendered from a Mr Janssen on the plaintiff's prospects of becoming a professional boxer and the likely rewards (Exhibit G). Objection was taken to the report and I gave a separate judgment limiting the use to which it could be put. In summary, I concluded that the report could be used to the extent that it suggested the plaintiff had the boxing capacity to become a professional. I did not allow those parts of the report that predicted the possible fruits of achieving professional status.
Mr Janssen was cross-examined on his report. He said he had actually seen the plaintiff fight in Condobolin and Forbes. Both of the plaintiff's opponents had gone on to become professional fighters but he did not know much of the detail of their previous boxing history.
Mr Janssen said that age was not necessarily a factor in becoming a professional. He cited examples of mature age successful fighters (Bernard Hopkins, a current world champion at 47, and Johnny Famechon).
Having regard to the limitations I placed on the report I take little from it other than that the plaintiff was a very competent amateur boxer who had at least the potential to turn professional but success, especially in an income earning sense, was not guaranteed.
Exhibit H is an "Expert Security Report" prepared by Mr Peter Smith. There was no objection to the tender of the report or any part of it. Mr Smith has a long background in police and security work including consulting to a number of clubs.
A summary of Mr Smith's views is as follows:
(a) If Mr Shelker was intoxicated when he arrived at the hotel, he should not have been admitted. This view stems from Mr Borg's observations of Mr Shelker at the boxing competition.
(b) Whatever the level of intoxication of Mr Shelker he should not have been served alcohol and in fact should have been evicted following the first fight in the hotel.
(c) Even if it was acceptable to allow Mr Shelker to remain on the premises after the first fight his movements should have been monitored so that he was not in a position to assault the plaintiff in the toilet.
I think Mr Smith's comments are essentially matters of commonsense. If Mr Shelker was intoxicated and aggressive when he arrived at the hotel he should obviously not have been permitted to enter. If he was a participant in the first fight he should have been evicted, in particular if he continued to misbehave by loud and aggressive behaviour. If he was allowed to remain, despite bad behaviour, then clearly the hotel should have recognised the possibility of him causing further harm and therefore not permitted him to range freely through the hotel where he might cause yet further problems.
After the assault
Once back in Sydney the plaintiff found his right leg very painful. There was a constant stabbing pain about half way between his knee and ankle. He consulted his general practitioner and was ultimately sent for an x-ray. The various attendances on doctors are detailed in the chronology (Exhibit F).
The plaintiff returned to work when expected but has had short periods of time off since. In July 2006 he accepted a position with his employer at a quarry in Cowra. After some time, because of undertakings he had given to his family, the plaintiff returned to Sydney. He, however, changed employers because he found that doing about three hours of driving a day was simply too much for his leg.
In August 2009 the plaintiff had a pain killing "block" injection. It was very successful but the effects did not last for very long. A second injection was not successful. The plaintiff ultimately came to surgery under Dr Coffey on 10 February 2010. Initially the plaintiff benefited from the surgery, in particular as he was nursing his right leg. He now thinks his leg is worse than before the operation.
The plaintiff has taken various forms of medication but has suffered from side effects. He now takes Panadol Osteo occasionally. He has effectively come to the view, on advice, that he simply has to live with the pain. The plaintiff feels that his condition is worse than before the surgery. It seems to affect him most when driving or after extra activity. The plaintiff said that at the present time he had a constant stabbing pain. In addition, there was numbness and tingling in his heel and ankle. Sometimes, especially after activity on his feet, he felt spasms that went up to his right knee. He had difficulty sleeping and more recently has had eight to ten " stubbies " in order to assist him to go to sleep.
The plaintiff is now about 96kg in weight. This is well up from his "fighting weight" of 67kg. The plaintiff tried to continue boxing but he failed. He said he was unable to prepare himself to fight because his leg prevented him engaging in his training regime.
The plaintiff started a new job with M Collins & Co in July 2008. He was cross-examined on his application for employment because it does not disclose the condition of his leg. He said, and I accept him, that he did not disclose it in case it prevented him obtaining the new job. His reason for changing employment was because he could not put up with the three hours of driving in his former employment. It is an unfortunate consequence of the disclosure of previous ailments that the disclosure might prevent a position being obtained.
Strictly the plaintiff's completion of the form (Exhibit 1) was not correct. I do not think it affects his credit in other matters. I take this opportunity to state that I was very impressed with the plaintiff as an honest witness. Not only did he significantly understate the extent of his injury but he also made a number of concessions against his interest.
The plaintiff said that his ambition was to be an Operations Manager. This position could not be achieved with his present employer because the position was not available. He was concerned that he would not be able to do the position with another employer if too much driving was involved, although as far as the job itself was concerned he said he was capable of carrying out the duties. The plaintiff also said he was worried about his future employment in his present situation.
Mrs Lewis, in her oral evidence, described the pain her husband suffered, that he had put on weight and was drinking more to obtain relief. She said he had also become snappy, always tired and often going to bed early. This was in contrast to the very active man he had been before his injury.
Mrs Lewis said that she now did the long distance driving as well as most of the chores at home. Mrs Lewis was not challenged on her observations of the plaintiff's condition.
Medical reports
None of the doctors gave oral evidence. On 17 March 2009 Dr Carr, a rheumatologist, examined the plaintiff on behalf of the defendants. His report was not tendered. I draw an inference that Dr Carr's report would not have assisted the defendants' case.
The defendants tendered only one report, that of Dr Rushworth, a neurosurgeon (Exhibit 5). Dr Rushworth seems to have generally accepted the plaintiff's history although noted, " the impairment of sensation below the knee on the right was considered non-organic. " I am not sure exactly what this means other than the doctor thinking that the loss of sensation was not a physical product of the injury. I do not necessarily read the opinion as suggesting a deliberate misstatement of disability. Such a conclusion would also be contrary to my general acceptance of the plaintiff as an honest historian.
Ultimately Dr Rushworth concluded the diagnosis was of a " chronic pain syndrome. " His prognosis was that the symptoms would continue " indefinitely ".
In relation to the plaintiff's earning capacity Dr Rushworth said:
"As he continues to work as before, he has not suffered any interference with his earning capacity."
There is some logic in this statement but it ignores the possibility that the plaintiff has continued to work as before despite a loss of some of his earning capacity.
In relation to medical treatment Dr Rushworth says that the treatment received so far "is a direct result of the soft tissue injury sustained by the plaintiff in the subject accident" . This statement is a little confusing because the plaintiff's surgery concerned his common peroneal nerve, which Dr Rushworth says was not implicated in the injury.
Dr Coffey, who performed this surgery, is of a different view, namely that the plaintiff "suffered significant trauma to the superficial branch of the common peroneal nerve as a result of direct injury from blunt trauma to the right leg" (Exhibit B, report dated 30 November 2010).
Dr Best, in his report of 6 August 2009, also considered the same nerve may have been implicated. Dr Best concluded:
"There is no doubt whatsoever in my mind that the history and timeline of this condition and the fact that other investigations have excluded other pathologies, that Mr Lewis' currently [sic] problems are a direct result of being assaulted on 28/8/05."
Dr Davis, an occupational physician, did not specifically identify damage to the same nerve but nevertheless concluded:
"While the majority of his injuries resolved, he has been left with ongoing difficulties with his right leg where he suffered muscle injury and subsequent scarring and fibrosis with ongoing pain and impairment." (Exhibit E, report dated 2 February 2009.)
Dr Abraham, a sports medicine specialist, certainly treated the plaintiff on the basis that "the source of his pain is entrapment of the superficial peroneal nerve" , although he does also say that: "I believe that part of Jason's pain is related to chronic regional pain syndrome ..." . (Exhibit B, report dated 31 July 2009).
Dr Abraham, in fact, referred the plaintiff to Associate Professor Sundaraj, a pain medicine specialist. Dr Sundaraj saw the plaintiff on 1 October 2009. He thought the plaintiff had injured "a branch of his common peroneal nerve. Unfortunately, this is a permanent change and he will have his good and bad days" . He did not seem to treat the plaintiff on the basis of a chronic pain syndrome.
It is difficult to be precise in forming a conclusion about the plaintiff's right leg injury. There is certainly a probability of damage to the common peroneal nerve but it also seems to be exacerbated by a chronic pain syndrome. Whatever the precise case I think it clear that the plaintiff, as a result of the assault, suffered a serious injury to his right leg that has caused him considerable pain to date and will continue to do so, probably indefinitely. The plaintiff seems to have now formed an attitude of "nothing can be done, I have to live with it" . This means the only treatment he is likely to have in the future is occasional use of painkillers, like Panadol Osteo, and perhaps visits from time to time to a general practitioner when his pain is worse than usual.
Liability
The common law duty of care owed to a patron in a public house is fundamentally that of an occupier to a lawful entrant. It does however have an added element derived from the sale of alcohol on the premises. This element was described by the High Court in Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420:
"20. It is next important to recognise that the particular provisions made in the Liquor Act for controlling violent, quarrelsome or disorderly conduct on licensed premises take their place in a context set by two considerations. First, sale of liquor is controlled because it is well recognised that misuse and abuse of liquor causes harm, including what the Liquor Act refers to as "violent, quarrelsome or disorderly" conduct. Section 2A of the Liquor Act provided:
"Liquor harm minimisation is a primary object of this Act
A primary object of this Act is liquor harm minimisation, that is, the minimisation of harm associated with misuse and abuse of liquor (such as harm arising from violence and other anti-social behaviour). The court, the Board, the Director, the Commissioner of Police and all other persons having functions under this Act are required to have due regard to the need for liquor harm minimisation when exercising functions under this Act. In particular, due regard is to be had to the need for liquor harm minimisation when considering for the purposes of this Act what is or is not in the public interest.
The second and related point to make is that the duties cast upon those responsible for the service of liquor on licensed premises can be understood as a part of the price that is exacted for the statutory permission granted under the Liquor Act. The permission granted is to do what otherwise the Act forbids - sell liquor - and to do that on premises to which members of the public may resort only in accordance with the conditions on which the licence is granted."
On the basis of the findings I have set out in paragraph 76, above, I think the issue of liability comes down to this question: Should the hotel have taken action against Mr Shelker after the first fight which would have prevented him from being a threat to the patrons of the hotel. In reality this action could have taken only one form. This was to require Mr Shelker to leave the premises, either voluntarily or, if necessary, by force.
Ultimately the realistic approach taken by the defendants enabled the liability issue to be narrowed even further. In written submissions counsel for the defendants said this:
"The defendant, it is submitted, quite properly identifies the issue in relation to liability as being factual. If the plaintiff is able to discharge his onus to establish to the requisite standard that the earlier incident of violence on the Hotel premises involved the same man responsible for the assault upon him in the toilet, the defendant will not be heard to argue that he had no duty to remove that man from the premises."
The defendants submitted that I should not accept that Mr Shelker had been shown, to the requisite standard, to have been involved in the first fight. Three points were put in favour of this submission:
(a) Mr Shelker was not identified in the incident book (Exhibit 9) despite being a person well known to the hotel.
(b) The persons involved in the earlier recorded fight were barred so that they did not remain on the premises and could not have been involved in the second fight.
(c) The plaintiff's witnesses differed in their versions to a degree that affected their reliability. In particular this submission was addressed to the evidence of Mr Stephenson and Mr Borg.
I think I have already dealt with the above three points but for abundant caution make the following further comments:
(a) Mr Clifton's evidence does not positively exclude Mr Shelker having been involved. Mr Kinsella apparently saw the incident but was not called to give evidence. The police officers who apparently escorted the two participants from the premises were not called to give evidence. As I have already said in relation to Mr Kinsella I think an inference can be drawn that their evidence would not have assisted the defendants' case.
(b) I have accepted the witnesses for the plaintiff. I did express some reservations about Mr Stephenson but these did not extend to the occurrence of the first fight or the participation of the tattooed man. I identified a mistake in his markings on the sketch plan and his estimate of the length of the fight was obviously incorrect. However, the existence of the fight is so strongly corroborated by other witnesses that I accept Mr Stephenson's evidence of the occurrence and the inclusion of Mr Shelker.
(c) I thought Mr Borg was a very good witness. No submission was made to me as to why he lacked credibility or reliability. I think he had both.
(d) It is correct that the versions of some of the plaintiff's witnesses differ in detail. It is now almost six years since the incident. Differences are to be expected. It would have been a greater concern had their evidence been identical.
In my view the hotel failed in its duty of care by not evicting Mr Shelker. He was an obvious danger to the remaining patrons of the hotel. Mr Clifton agreed that immediate barring would have been the appropriate action (T 178.39).
Viewed in terms of the CLA I think the same conclusion is easily reached. Under Section 5B(1) the risk of an already violent person attacking another patron in a pub is foreseeable, in particular to hotel staff. The risk is obviously not insignificant and a reasonable person in the position of a hotel operator would have taken the precautions admitted, and usually applied, by Mr Clifton in such circumstances.
In relation to Section 5B(2) the probability of serious harm occurring is evident as is the already canvassed options of taking precautions that fell upon the hotel.
In relation to causation, pursuant to Section 5D, I find that the occurrence of the harm would not have occurred but for the negligence of the hotel. I also think that having regard to the duty of a hotel which serves alcohol that "it is appropriate for the scope of the negligent person's liability to extend to the harm so caused" .
Accordingly I am satisfied that the defendants are liable to the plaintiff for the harm caused by their negligence. In reaching this satisfaction the onus has always remained on the plaintiff (in accordance with Section 5E of the CLA).
Damages
I have stated above that the plaintiff suffered a serious injury to his right leg. It has caused him constant pain over the last six years. He has endured surgery and the side effects of a number of different drugs. The plaintiff has felt the effects of his injury in his work, in particular when driving to and from his place of employment and when carrying out extra activities. The recreation about which he was obviously passionate, boxing, has been taken from him, certainly as a participant. I note he remains involved in training other boxers including his son, Daniel.
In the future the plaintiff will continue to suffer pain and I have no doubt that although he will do his best to maintain employment the very act of doing so will mean that there will be more than usual amounts of pain.
I have come to the conclusion, in relation to economic loss, that the plaintiff has not established a specific loss referable to his inability to become a professional boxer. I am, however, satisfied that the disappointment to the plaintiff for his inability both to continue boxing at an amateur level and perhaps be a professional (successful or not) can be taken into account in the assessment of non-economic loss.
The plaintiff suffered injuries in the assault besides that to his right leg. I do take these into account but only to a very limited extent. The evidence suggests that all the other injuries cleared up very quickly, although I do note the plaintiff mentioned occasional continuing discomfort in his ribs.
The defendants submitted that 25% was the correct estimation of a most extreme case. The plaintiff placed the range as between 30% and 40%. Taking all the above matters into account, and specifically including an element for the plaintiff's loss of his boxing career, I assess non-economic loss at 33% of a most extreme case. This equates to $165,000 pursuant to Section 16 of the CLA.
The plaintiff has made a substantial claim for future economic loss on the basis that he has a lost capacity to earn as well as an inability to progress further in his career. Part of the claim includes the possibility that if the plaintiff finds himself on the open labour market he will be at a disadvantage as a result of his injuries.
The plaintiff's immediate supervisor, Mr Mick Bugg, gave oral evidence. He is the author of Exhibit K. He said this letter was written because the plaintiff was taking too much time off, in particular he was coming in late and leaving early. Although the plaintiff was a very competent worker, Mr Bugg said the plaintiff was paid a good salary and the expectation was that he would work his proper hours. The situation had not improved much since Exhibit K was written and he was considering a second letter.
Mr Bugg presented as a 'no nonsense boss' who would support the plaintiff but not to detriment of the company. I think Mr Bugg's evidence raises a realistic anticipation that the plaintiff's current employment may be at risk in the not too distant future. If he was placed on the open labour market his current high income will result in a substantial loss while he is not working and if he obtains employment at a lower salary.
For purposes of Section 13 of the CLA I find that but for the injury the plaintiff would have continued in the quarry industry but would, sooner or later, have advanced in his position and achieved the status of Operations Manager. This would have produced a higher income. I further find that the plaintiff would have been subject to the normal vicissitudes of 15%. In doing so I specifically exclude the possibility that had he pursued his boxing career he would have suffered an injury that would have prevented him from working. I do so for two reasons; firstly his history in boxing thus far has not produced any injury that has prevented him from working, and secondly because I have specifically denied his claim for economic loss flowing from his inability to turn professional.
The defendants submitted that there should be only a minimal award for future economic loss ($20,000). This is based on the plaintiff's history in maintaining his employment so far and the likelihood that he will continue to work at least at his present level. The plaintiff's history certainly supports the defendants' argument; however, it is also necessary for me to take into account that the plaintiff has persevered in his work against a history of pain and discomfort and that the duties involved as a Quarry Operations Manager would involve significantly more driving, an activity which the plaintiff finds particularly painful.
I also take into account that, as found above, the plaintiff's present employment is not without risk.
I think the plaintiff is entitled to a buffer for the possibility that he will be at a disadvantage on the open labour market and he is unlikely to advance beyond his current employment status. In assessing this buffer I also take into account my favourable impression of the plaintiff, which is such that I would expect him to maintain the best employment he is able despite his injuries.
The plaintiff has difficulty getting to and from work. He is restricted in the physical work that he can do. He is in constant pain generally but in particular when he is working. He needs to often arrive late and leave early. These factors must amount to an incapacity to do the work of which he was capable before the injury. The incapacity is likely to be productive of economic loss in the future. On this basis I assess the buffer for future economic loss at $120,000.
Although the plaintiff is likely to remain a wage earner, neither the Amended Statement of Particulars (filed on 6 November 2009) nor the plaintiff's Schedule of Damages handed up during submissions include a claim for lost future superannuation benefits. In this circumstance I do not think it appropriate to make any specific award in this regard.
Past medical expenses have been agreed at $6,247.73.
The plaintiff has claimed $20,000 for future medical expenses. The defendants suggested $2,500. I have noted above that the only likely future expenses will be for some medication and occasional visits to the general practitioner. I think a global sum of $5,000 meets these purposes.
A summary of the damages I have awarded is as follows:
| Non-economic loss | $165,000.00 |
| Future economic loss | $120,000.00 |
| Past medical expenses | $6,247.73 |
| Future medical expenses | $5,000.00 |
| Total | $296,247.73 |
Accordingly the plaintiff is entitled to a verdict and judgment in the sum of $296,247.73.
Absent the necessity for any special costs order, the defendants are to pay the plaintiff's costs of the proceedings.
Decision last updated: 01 August 2011
1
1
1