Lister & Lister v Hoban Nominees Pty Ltd No. DCCIV-97-1457 Judgment No. D3943

LISTER & LISTER v. HOBAN NOMINEES PTY. LTD.
[1998] SADC 3943

Civil

Judge Burnett:

The Plaintiffs bring this action for damages against the Defendant for alleged negligence and/or breach of duty in the management of the Defendant’s hotel premises, known as “The Downs Hotel” (the hotel) on 23rd December, 1994.
The male Plaintiff (Mr. Lister) claims damages in respect of personal injuries and related loss that he is alleged to have sustained whilst a patron at the hotel. The female Plaintiff (Mrs. Lister) is the wife of Mr. Lister and claims damages for what may be called loss of consortium.
Mr. Lister’s claim is based in negligence and breach of duty by which, I think, the Statement of Claim means (but does not say) breach of the duty of care owed as the occupier of premises. In any event, the case proceeded on the basis of a claim in negligence and, in particular, Mr. Lister’s position as an alleged “rescuer” and, therefore, I propose to do the same.
I proceed now to make some findings of fact which provide the background against which the case must be understood and resolved. I believe that these findings are common ground between the parties but, should I be wrong in that belief, I find them as facts in any event. Of course, the facts are basic and those that go to provide a background setting. They do not purport to cover all matters referred to in the evidence.
The Defendant is a company duly registered in South Australia. The Defendant, at all relevant times, has carried on business and traded as hoteliers at the hotel.
At all relevant times, Mr. Lister was a courier service operator carrying on business as an independent contractor to Mayne Nickless.
In the early evening of 23rd December, 1994, Mr. Lister completed his day’s work and went to the hotel for some drinks. Mr. Lister went to the front bar where he commenced drinking light beer from pint glasses.
The front bar was very busy and, I gather, at times very noisy. Some of the patrons in the bar were boisterous in their behaviour on occasions and others (including David Miller) were in differing stages of intoxication.
Mr. Lister remained in the bar for several hours and, at one stage, he saw Mr. Miller (who was in an advanced stage of intoxication) wandering around the bar clad only in a T-shirt. It seems that some of the patrons had removed Miller’s shorts and underpants and had thrown them up on to a beam which ran along the bar near the ceiling. The clothes were out of reach unless some form of ladder could be used to retrieve them.
Mr. Lister was concerned by what he saw. There seemed to be no-one willing to help Miller and Mr. Lister decided to do so. Mr. Lister obtained a bar stool and stood it near the beam. He then climbed on to the stool (which was steadied by a Mr. Kenyon) intending to retrieve Miller’s clothes from the beam.
Somehow (the cause of which is in dispute), Mr. Lister fell from the stool and sustained quite serious injuries to his left leg and left elbow. These injuries and their alleged consequences are the basis of the quantum of damages aspect of the case.
That is sufficient to show how the action arose. Matters of greater detail must now be resolved in order that I can make further findings of fact. I turn then to the witnesses that were called and their credibility and (where appropriate) the exhibits that were tendered.
Mr. Lister gave evidence. He was in the witness box for a long time. He was cross-examined at length, thoroughly, though fairly. I had a good opportunity to observe, hear and assess him as a witness. Although, in the light of other evidence, I think that Mr. Lister may have made some mistakes in his testimony, they were not in important areas. I thought that Mr. Lister was straightforward as a witness. I could detect no suggestion of prevarication or evasion in his evidence. I think that he did his best to tell me the truth as he recalled it to be and that (with the exceptions that I have mentioned) he was a good and credible witness. I accept his testimony save for the matters referred to.
Mrs. Lister gave evidence. She did not see the incident at the hotel, she was not present. Mrs. Lister’s testimony was directed towards her own claim and in support of Mr. Lister’s evidence about his injuries and their consequences. I accept Mrs. Lister’s evidence.
The Plaintiffs called a Mr. Stephen McAvoy who was a regular patron of the hotel and present on the evening that Mr. Lister fell from the bar stool. Mr. McAvoy was also in the witness box for a long time and cross-examined at length. I am sure that Mr. McAvoy tried to tell me the truth as he recalled it to be. However, I think that he was mistaken in several aspects of his evidence. He tended to be over expansive in what he said and perhaps he reconstructed some of his evidence. I cannot accept aspects of his evidence where it may be in conflict with other, more reliable, testimony. However, that does not mean that he was totally unreliable. I am prepared to accept a number of aspects of his evidence and do so.
The Plaintiff called Mrs. Linda Edwards who, with her husband, was in the front bar of the hotel on the night in question. Mrs. Edwards had attended the hotel before, but not frequently. Upwards of four years have elapsed between the night in question and trial. Mrs. Edwards first knew that she might be required as a witness about four weeks or so before trial. It is little wonder that Mrs. Edwards could not remember some aspects of the evening and that she was in doubt about others. She was quick to say so. However, there were several matters about which she had recollections and I feel confident in accepting much of what she said about those matters. I thought that Mrs. Edwards was a good and open witness and I accept what she said although some of her testimony cannot add to the solution of some matters in dispute.
The Plaintiff called also Mr. Colin Edwards (the husband of Linda Edwards). Mr. Edwards frequented the hotel more than his wife (or so I gather) and was also present in the front bar of the hotel on the night in question. Mr. Edward’s evidence also took a long time. I thought that he acquitted himself well. As with others of the witnesses, there were aspects of events that he saw or failed to see. There were other aspects where his memory differed from other witnesses. I found Mr. Edwards to be a good witness. Whilst his evidence did not accord in some respects with that of others (and that is not surprising), I think that Mr. Edwards was a witness who was credible and his evidence very useful.
The Plaintiffs’ final witness as to liability was Mr. Bernard Kenyon. Mr. Kenyon was also a regular patron of the hotel and was present in the front bar at the time in question. Mr. Kenyon knew the hotel and the way in which it worked well. He had been a patron there for over twenty years and had worked there at one stage for about a year. All in all, with the exception of Mr. Lister, I found Mr. Kenyon to be the most acceptable of all the witnesses called on the liability issue. His recall of events was good, he did not see or recall some aspects of the night’s events and said so. I thought that he was frank and open and I accept what he said.
In addition to the witnesses that I have referred to, the Plaintiffs called two medical practitioners on the question of damages and I will refer to them later. The Plaintiffs also tendered some documentary material.
I turn next to the witnesses called by the Defendant on the liability issue.
The Defendant’s first witness was Mr. Alan Bickley who was, at the relevant time, an independent contractor who provided security services for the hotel and was working there himself on the night when Mr. Lister fell from the bar stool. Mr. Bickley gave his evidence clearly enough and much of what he said was obviously credible. However, Mr. Bickley was defensive in those aspects of the evidence that related to what he seemed to regard as his personal interests and those of the hotel. His evidence in those aspects did not accord, or accord entirely, with evidence of other, more credible, witnesses and I would prefer them to Mr. Bickley.
The Defendant’s second witness as to liability was Ms. Mary Fern who was the bar person on duty in the front bar of the hotel on the night in question. Ms. Fern had considerable experience in working for the Defendant at the hotel. Like Mr. Bickley, she seemed anxious to protect and justify her actions (or lack of them) on the subject evening. To the extent and on the topics that she did so, her testimony was unconvincing and, again, I could not accept her on those aspects of the facts. Other aspects of her testimony were credible and acceptable.
The Defendant’s third witness as to liability was Mr. David Scicluna who was the manager of the hotel at the relevant time. Mr. Scicluna was on duty at the hotel when Mr. Lister fell from the stool. Mr. Scicluna spent very little time in the front bar that night. He could not speak of much of the disputed factual material. He did come to the bar when Mr. Lister fell and I think that he was mistaken when he said that the floor near where the fall took place was not wet. Mainly he spoke of hotel procedures and his expectation of the staff. His evidence was of limited value but it had several quite important aspects to it and I can see no reason to do other than accept what Mr. Scicluna said except in the respect to which I have referred.
The Defendant called Mr. Phillip Taylor who was, in 1994, a security guard employed by Mr. Bickley. He was working at the hotel on the night in question. Mr. Taylor’s evidence was comparatively short. It was useful as much for his demeanour as it was for his words. I have no reason to doubt Mr. Taylor and accept him.
The Defendant called also Ms. Leanne Schneider, an ambulance officer, who spoke briefly of attending at the hotel to assist Mr. Lister and take him to Lyell McEwin Hospital. She spoke also of the time when she attended the hotel and when the call to do so was received. I accept her evidence.
The Defendant tendered some documents but called no medical witnesses.
Before I part with the matter of credibility, I should note again that the witnesses spoke of events that were nearly four years old. The events happened in a very crowded, noisy bar where there was boisterous behaviour and where people were moving about constantly. It is little wonder that recollections as to events, times and so on vary between witnesses and that some observed events that others did not. There was no reason for the witnesses (except those employed by the Defendant and who were working at the time) to take particular notice of things around them. Even for the Defendant’s employees it would have been far from easy for them to see everything that was going on but their duty included the need to be vigilant. I have taken these matters into account when discussing the question of credibility and in making my findings of fact to which I turn now.
In addition to my earlier outline of the essential factual background to the case, I make the following findings of fact:-

Mr. Lister is now aged 47 years. Mrs. Lister’s date of birth is not disclosed in the evidence but I imagine that she is approximately the same age as her husband. They were married on 29th January, 1971 and have three children now aged 27, 25 and 23 years respectively.

On the night in question, Mr. Lister arrived home after work. Mrs. Lister was out at a Christmas “break-up” and Mr. Lister decided to go to the hotel for a meal and some drinks. He drove his car to the hotel and (whilst I cannot be precise) he must have arrived at around 5.30 p.m. to 5.45 p.m. He went to the front bar of the hotel and consumed a meal. He then spoke with his brother-in-law for a while and played pool with a friend.

Because he had to drive home, Mr. Lister drank only light beer. He drank, in all, six pint glasses full of beer. He was not affected at any stage of the evening by the alcohol that he had consumed. There is a strong body of evidence to support that finding and none to the contrary.

Mr. Lister remained in the front bar, playing pool, talking to others and drinking light beer until he was taken to Lyell McEwin Hospital by ambulance at 10.58 p.m.

The front bar of the hotel was a large room. It is difficult for me to be at all precise about its dimensions but I do not think, in the context of this case, that it matters much any way. There was a bar at one side of the room and a T.A.B. betting area. There were tables and chairs around the room and also bar stools. The bar floor was carpeted for most of its surface but, running the length of the bar, the floor was tiled for about a metre or so from the bar front. There were pool tables in the bar and a juke-box. There was also a wooden beam that ran the length of the bar near the ceiling.

On the night in question the bar was very busy. Precise numbers of patrons were not counted and, no doubt, varied from time to time as people came and went. But, at any one time, there were 50-60 people in the bar and perhaps more. Most people there were men but there were some women.

The atmosphere in the bar was generally happy and cheerful. It was very noisy with loud voices and the juke-box playing loudly. It was near Christmas and there was probably an air of celebration about. Some of the patrons were boisterous, some in various degrees of intoxication.

Those who had frequented the bar regularly over time must have known that patrons’ behaviour in the bar was sometimes unacceptable. There were unpleasant incidents of abuse and even fights on occasions. Mr. Lister was a regular patron at the bar and, I think, must be taken to have known the general behaviour in the place and that unpleasant incidents could occur from time to time.

On the night in question, several such incidents took place. On one occasion which occurred early in the evening (Mr. Lister thought it was about 6.30 p.m.), although it could well have been later, a person or persons let off a number of fire crackers in the bar. A potentially dangerous situation was created. The bar manager glanced at what was happening (he was not working in the bar), he did not take any steps to intervene but shortly after the culprit or culprits stopped. No other employee of the Defendant took any steps to put a stop to this conduct.

Mr. Lister thinks that people who were in the bar were wrestling and that they fell on to a pool table and damaged it very severely. There is no other evidence to support that view. I think that Mr. Lister was mistaken as to the damage done but I have no doubt that he saw people wrestling in the bar. I am equally satisfied that the Defendant’s employees at the hotel did nothing about it.
At some stage of the evening, some men brought a large plastic rubbish bin into the bar. I am unable to say who brought the bin in to the bar or when but I am satisfied that it was there. The bin contained canned and bottled beer packed in ice. Mr. Lister thinks that the bin was concealed under a pool table for a while but the other evidence is confused about its location. All I can say is that the bin was in the bar, it was probably moved around, people took beer from it and drank the beer in the bar. More importantly, at one stage, some men commenced and carried on an ice fight in the bar. They took ice from the bin and threw it at each other and around the bar. Some large pieces of ice were thrown. This must have endangered people in the bar. The ice fell to the floor (and perhaps elsewhere) and was allowed to melt. The Defendant’s employees did nothing about the situation at all. They claimed not to have seen the bin, the ice or the ice fight. Nothing was done to clean up the melting ice after the fight stopped.
During the evening, one David Miller, who was a patron at the hotel, became very drunk. He was at the point where he was unable to walk properly - he had lost cohesion. I simply do not agree with Ms. Fern’s assessment of Miller’s state on that night. I find that he was very drunk indeed.
Mr. Miller was well-known to management of the hotel and to the regular patrons of the front bar. He was a young man who obviously had an alcohol problem. He generally became intoxicated when he was at the hotel and had been ejected or “barred” (that is excluded) for 24 hours on a number of occasions. When drunk, Miller could become abusive but was not given to violence. He was often the butt of so-called jokes at the hands of some of the patrons. He was known to Mr. Lister as a “drunk” who was usually at the hotel when Mr. Lister visited the bar.
(10)At some stage of the evening, probably around 10.00 p.m. and after the ice fight had stopped, Mr. Miller was the subject of a “joke” at the hands of some of the patrons. They removed his shorts and underpants and threw them on to the beam near the ceiling in the bar. Miller was left to wander around the bar wearing only a T-shirt. He was laughed at and derided by a number of patrons who seemed to think that Miller’s plight was funny. The people deriding Miller made a lot of noise.
Ms. Fern saw Miller wandering around in what she said she thought was “without his pants on” - she claimed that she did not realise until later that he was naked to the waist. I do not accept that. In any event, she did nothing to offer Miller help. Mr. Taylor was actually in the bar at one stage and saw what was going on, particularly from his demeanour in the witness box, he thought that it was funny. Mr. Taylor did nothing about the situation. Eventually, Mr. Bickley solved the problem by removing Mr. Miller from the bar, he “threw him out”. At no time did any of the Defendant’s employees, although two were (in my view) fully aware of what had happened, do anything to stop what was happening or come to Miller’s aid. What action was taken occurred after Mr. Lister had fallen from the stool.
(11)Mr. Lister felt sorry for Mr. Miller. He said that no-one else seemed to want to help Miller. He was not to know then that Mr. Kenyon also thought that something had to be done and set out to help. Mr. Lister had not seen where Miller’s clothes were thrown but found out and determined to get them and give them back to him. The beam in the bar was too high for a person to reach up and retrieve the garments. Some form of elevation was required. Both Mr. Lister and Mr. Kenyon think that they got a bar stool to stand on. It was probably Mr. Lister who did that but it does not matter because they met near where the stool had to be placed in order that it be mounted and the clothes recovered.
Mr. Lister said that he would go up and get the clothes. Mr. Kenyon held the stool steady for him. Mr. Lister mounted the stool and, having done so, says “my foot just skidded off the stool and the next thing I knew I’m lying on the ground in a lot of pain”. He was reaching out for the clothes when he fell.
(12)I feel quite unable to find with absolute certainty how it came about that Mr. Lister fell from the stool. He says that he slipped. Mr. Edwards said that his legs “slipped to the side, to his right side”. He confirmed that he saw Mr. Lister slip on the stool. I find that he did slip. He was not pushed and there is nothing to suggest that he lost balance. A number of those who were in the bar and gave evidence did not actually see the fall but rather the immediate results of the fall.
Having found, on the balance, that Mr. Lister slipped, the next question is how or why. Mr. Lister contends that there must have been some ice or water on the bar stool - no doubt emanating from the ice fight. I do not think that the evidence supports such a finding although it is a possibility. It is not more probable than not. I suppose that there could have been moisture from sources other than ice on the stool, the seat of the stool might have been too highly polished, but these things are mere speculation. I wonder also, had there been ice or water on the stool, why Mr. Lister or Mr. Kenyon failed to see it there.

I am satisfied, however, that the carpet upon which the stool was placed and the area around it was very wet. Mr. Kenyon noticed that when he knelt or stooped to assist Mr. Lister after he had fallen. Mr. Edwards said he saw ice and water tipped from the bin on to the floor near what must have been the place where the stool was placed prior to Mr. Lister mounting it.
It is, I think, more probable than not that the soles of Mr. Lister’s shoes were wet from the water in and on the carpet when he mounted the stool and, by inference, the most probable cause of Mr. Lister slipping and falling was the effect of slippery shoes on the vinyl seat of the stool. I so find.
(13)I find that, at the relevant time, the Defendant had one person serving the whole of the front bar. There had been two earlier but only one (Ms. Fern) at the time.
I find that there were three security guards on duty at the hotel on the night in question. Mr. Bickley commenced work at 7.00 p.m., Mr. Taylor at 8.00 p.m. and another person named Mick Graham at 9.00 p.m. Mr. Graham was not called to give evidence and, although attempts were made to explain his absence, I am of the view that his absence does not matter much any way.
A good deal of evidence was forthcoming about what the guards were “supposed” to do at the hotel. Much of the evidence advanced as fact turned out to be based on routine rather than what happened on that night (see evidence of Ms. Fern).
Essentially, it was the duty of the security personnel to patrol the whole hotel area. This included the front bar, the saloon bar, the dining area (which became a “disco” at about 9.00 p.m.), the car park and it seems, although is not proved, the bottle department. Their duty was to ensure that proper dress standards were upheld in the saloon bar and dining area and to ensure that patrons behaved reasonably. They were to stop fights and other misconduct, escort people from the premises, if warranted, and call the police if things needed that sort of intervention.
(14)I find that, on the evening in question, the security presence in the front bar was minimal. It probably was the case that one of the guards moved through the bar, but infrequently. Most, if not all, the witnesses, saw no security presence in the bar on that night although it may not have been easy to see them, particularly if one was not looking specifically.
I find that Mr. Taylor was in the bar at a stage when Mr. Miller was wandering around without his lower clothing. Mr. Taylor did nothing to help Mr. Miller. He did nothing at all in that regard except to be amused by what he saw. Mr. Bickley came into the bar when Mr. Lister had fallen. He dealt with Mr. Miller by ejecting him from the bar without his clothes.
(15)I think that those findings are adequate to enable me to resolve the matter but, for the sake of completeness, I will deal with some specific matters raised by the Defendant in the Defence:-
i....... Paragraph 2.2.1 of the Defence deals with the question of patrons bringing their own drinks into the bar. I have no doubt that, for obvious financial reasons, this was a practice disapproved of by the Defendant. However, on the evening in question, drinks of that kind were brought in and apparently not discovered. One would imagine that they would have been discovered had adequate surveillance taken place. There is no evidence that signs concerning the so-called rule were displayed.
ii...... Paragraph 2.2.2 asserts that the security personnel patrolling the premises would have been aware of persons throwing ice etc. “which did not occur”. I find that such ice throwing and so on did occur and that the guards either failed to see it or ignored it - probably the former. As with so many other aspects of the events of that night, Ms. Fern saw nothing wrong. Of course, had she seen the fire crackers, the bin of beer in ice and the ice throwing incidents, and let them occur without action on her part, she “would have been in trouble” (see page 397 transcript of evidence).
iii..... Paragraphs 5.3.4 and 5.3.5 state that the Defendant’s staff had no opportunity to prevent patrons from removing Miller’s clothes and “doing what they wanted to do with them”. Nor was there any opportunity for the staff to retrieve the clothes from the beam before Mr. Lister tried to do that. The evidence discloses that, whilst the first part of those statements may have an element of truth about it, Ms. Fern saw Miller in a state of undress and did absolutely nothing about it and Mr. Taylor saw him (perhaps later) and also did nothing. There was ample opportunity for the Defendant’s staff to help Miller, but they neglected to do so. I might add that more regular and vigilant surveillance might well have been able to stop the incident occurring at all.
iv...... Paragraph 5.3.6 says that there was no common practice of patrons standing on stools in the bar to adjust television sets and paragraph 5.3.8 states that the Defendant did not condone the practice. Paragraph 5.3.10 says that it was “well known” by patrons that such practices were not permitted. The evidence is all the other way as to each of those suggestions. The practice was clearly permitted and perhaps even encouraged.
v....... Paragraph 5.3.12 states that the Defendant did not provide alcohol to persons who were significantly intoxicated. The evidence (particularly as regards Mr. Miller) is quite to the contrary.
vi...... Paragraph 5.3.13 deals with security staff and states that they were “monitoring and controlling the behaviour of persons within the bar which was not offensive”. The evidence makes it plain that such monitoring as may have occurred was desultory and ineffective and that there were a number of specific offensive things that occurred in the bar that night.

I am not disregarding the balance of the Defence and will deal with it again later. I have dealt with those specific allegations of fact which call for findings and which can be dealt with while I am dealing with the facts.

I turn now to the question of liability. The Plaintiffs’ case rests heavily upon the allegations that he was a “rescuer”. It rests with less emphasis on the negligence/occupier’s liability claims.
With regard to the allegations that Mr. Lister was a “rescuer”. I ask myself was he, as a matter of law (based on my findings of fact), a rescuer at all?
I accept that the Defendant owed Mr. Miller a duty of care sufficiently wide to extend to the situation in which he found himself. I accept that the duty of care was breached in a number of ways, including insufficient surveillance and supervision, callous and knowing disregard to his plight and offering no help. I accept that Miller was the victim of an assault (and perhaps other minor offences of indecency) and that literally nothing was done by the Defendant to stop it once it started and continued and nothing was done to prevent it happening in the first place. I accept that Miller was very drunk and must have been served at least some alcohol whilst in the bar. Whether he was served with alcohol that night or not, he should still not have been permitted by the Defendant to be in the bar in that patently advanced state of intoxication. I accept that, after Miller’s clothes were thrown on to the beam, he was allowed to wander about, the subject of derision, and that the Defendant’s employees, although they knew of the situation, did nothing about it at all. All those things are plain on the evidence - overwhelmingly so - but was this a rescue situation as a matter of law?
Mr. Miller had not been physically injured. He was in no danger of immediate physical or other injury, he was not threatened by any catastrophe. He was being humiliated, derided and left when he needed assistance. In real terms, he was in no physical danger, save perhaps falling over or something of the kind as a result of his intoxicated state. Was he, as a matter of law, in need of “rescue”? I doubt it very much.
The concept of a Defendant’s liability to a rescuer was described thus by Mr. J. Tiley (as he then was) in a comprehensive article in the Modern Law Review (“The Rescue Principle” 1967 M.L.R.25) when he wrote:-

“The principle is that where the defendant has created a situation of peril for another, the victim, the defendant will be held in law to have caused not only the peril to the victim but also his rescue, and so to have caused any injury suffered by the rescuer in his rescue attempt.”

Alternatively, but to the same effect, the authors of the Australian Torts Reporter say at 18,301:-

“Where a defendant is responsible for injuring or endangering a person, a duty may be owed to a plaintiff who is injured in the course of a rescue attempt. Such a duty of care is independent of the duty, if any, owed by the defendant to the person injured or endangered.”

Thus it will be seen that the concept of duty of care will need to extend to two persons: the person injured, or endangered or imperilled and the Plaintiff who goes to his rescue.
The law relating to rescue cases has occupied a good deal of space in textbooks and journals and has been the subject of numerous cases, many of which are well-known. The law is clear and requires no re-statement by me. However, before applying the law to the facts of any case, the first questions must be - Is this a rescue situation? Is the Plaintiff a rescuer?
Generally speaking, the answers to those questions are self-evident. Rendering assistance to people injured in motor vehicle accidents and industrial accidents are good examples. Even an attempt to save property can be a rescue situation in appropriate circumstances. However, to my mind, it cannot be said that rendering aid in any circumstances is sufficient to attract liability.
I have spent a great deal of time trying to find a definition of what is a rescue situation or who is a rescuer as a matter of law. The textbooks speak of peril, danger, injury as being the sort of situations in which rescues are attempted. I can find nothing to support any proposition that acts of decency or kindness in non-dangerous or perilous situations can make a person a rescuer in a sense which attracts tortious obligations.
The only case that I could find in my researches that was towards the point was a rather unsatisfactory note of Sylvester v. G.B. Chapman Ltd. 79 S.J. 777. I set out the body of the note in full:-

“A groom working at the Agricultural Hall, Islington, in connection with a number of circus horses not belonging to the defendants, was passing the cage of a leopard which the defendants had on show, when he saw a lighted cigarette smouldering among some straw between the cage and the barrier. He crossed the barrier to extinguish it, and the leopard put its paw through the bars and mauled his hand. The plaintiff alleged that the top bar covering the aperture used for feeding the animals was not in place and brought an action for damages. In cross-examination, he admitted that had he stayed on the proper side of the barrier there was no chance of his being mauled, that he had no business to get over the barrier and that there were keepers available. His Honour Judge Earengey held that no case had been made out. The plaintiff appealed.
LORD WRIGHT, M.R., dismissing the appeal, said that it had been argued that the principle in Haynes v. Harwood [1935] l K.B. 146 applied, but the facts of the present case were completely different. The cage plus the barrier constituted sufficient performance of the duty to keep the leopard secured. If someone got inside the guard, he was bringing trouble on himself. In principle, the case was the same as Marlor v. Ball, 16 T.L.R. 239. The doctrine stated in Haynes v. Harwood, supra, did not apply. The plaintiff was not rescuing anyone from imminent danger or death, nor even preventing damage to property, since there were people who could easily have done with precautions what he did. He was essentially a volunteer.
ROMER, L.J. and EVE, J. agreed.”

That note demonstrates that the case of Haynes v. Harwood had been decided before Sylvester’s case was heard. It also uses the words “rescuing anybody from imminent danger or death”. I think that the rescue cases are predicated, as far as core liability goes, on a person going to the aid of another in circumstances of injury, danger, peril, death or real risk thereof. The concept does not go to every person who helps another regardless of the circumstances.
The circumstances of this case (as I have said before) were that Mr. Lister went to the aid of Mr. Miller, who was the subject of derision and humiliation. He had been assaulted in a way that offered no lasting violence to his person. He was not physically injured nor (on the evidence) likely to be. He was not in physical peril or danger. This was not a rescue situation and Mr. Lister, regardless of his kindness and decency in acting as he did, was not a rescuer.
I need to make this point with some vehemence because Mr. Lister relied upon it with vehemence. The law does not require persons to go to the rescue of others in peril but should a person choose to do so and be injured in the process, the law will not see him unprotected. The person who caused the problem originally can be held responsible for not only his acts or omissions towards the original person injured or put in peril but also that person’s rescuer. Also, the law regards rescuers with considerable kindness. Generally, they will not be found guilty of contributory negligence or be found to be volenti. They acted out of generosity, sometimes bravery and must be treated accordingly. It would have been very much better for Mr. Lister had I been able to find that he was a rescuer but he was not.
Before I part with this aspect of the case, I should refer to the case of Wormald v. Robertson & Ors (1992) Australian Torts Reports at 61,566. Mr. Cuthbertson (for the Plaintiffs) placed heavy emphasis on this decision of the Queensland Court of Appeal but, whilst the case is of considerable value to Mr. Lister’s alternative head of claim, it does not assist on the “rescuer” argument.
Wormald’s case is closer to a rescue situation than the case at bar. Mr. Wormald intervened when a drunken and objectionable person (Robertson) took hold of a woman (known to the Plaintiff) in an hotel bar. When the Plaintiff intervened, he was struck by Robertson and injured.
It could be argued that the Plaintiff was acting as a rescuer when he intervened to stop Robertson from handling the woman. It might be argued that the woman was at some risk. However, from my reading of the case, neither argument was advanced. The case was determined upon what I might call “ordinary” negligence principles. Rescue or rescuer was simply not even mentioned. What the Court of Appeal decided was that the Trial Judge was right in holding that the hotel proprietors owed the Plaintiff a duty of care and that, by neglecting to control or deal with Robertson, there had been a breach of duty. The Court overturned the Trial Judge’s finding that the breach of duty had not been a cause of the Plaintiff’s injuries. The question of the proprietor’s duty to the woman did not arise.
That brings me to the alternative aspect of Mr. Lister’s claim, namely negligence/occupier’s liability. In Australian Safeway Stores Pty. Ltd. v. Zaluzna (1987) 162 C.L.R. 479, a majority of the High Court held that, in an action for damages for negligence against an occupier, general principles of negligence applied. This simplified the law of occupier’s liability although, for the State of South Australia, Part 1B of the Wrongs Act, 1936, as amended, provides that, since the enactment of the Part, the ordinary rules of negligence apply to any case of so-called occupier’s liability.
Therefore, I am to apply “ordinary” negligence principles to this aspect of the case.
In my view, the Defendant had a clear duty of care to take reasonable steps to ensure Mr. Lister’s safety. That includes a duty to take reasonable care to avoid a reasonably foreseeable risk of injury caused by acts of other patrons or the condition of the premises.
In the case at bar, the Defendant (in essence) had a duty to maintain adequate crowd control and to ensure that the premises were reasonably safe for the use of its patrons. I have said already, and find specifically, that crowd control on that night was virtually non-existent. Whilst not a “powder keg” (as in Wormald’s case), the bar was potentially the scene of misconduct or worse. There was a number of intoxicated or part intoxicated persons present in the bar. Some patrons were noisy and boisterous. There had been some wrestling between patrons. These events, and the boisterous behaviour of some patrons, should have put a reasonably vigilant and careful hotel proprietor on notice of the potential for more trouble.
The fire cracker incident, the ice fight and the manhandling of Mr. Miller were all examples of incidents that should have been prevented or, at least, received prompt attention. The Defendant’s employees knew (to a greater or smaller degree) about those things, or ought to have known, and did nothing. The Defendant did not maintain adequate crowd control.
There was one bar person on duty that night at the relevant time. She could not physically do all things necessary to keep the bar tidy. Plainly, some parts of the carpet were wet - they were potentially dangerous. Nothing was done to dry the carpet. In the circumstances, I take the view that the Defendant failed also to keep the bar reasonably safe for its patrons.
This finding brings me to the question of foreseeability. Was what happened to Mr. Lister reasonably foreseeable by the Defendant? This is not an entirely simple question. The injury suffered by Mr. Lister occurred in unusual circumstances. The risk must not be far-fetched or fanciful but one which, although unlikely to materialise, was nonetheless real” (Romeo v. Conservation Commission (1998) 72 A.L.J.R. 208 per Hayne J.). I am to test the nature of the risk by using the “reasonable man” test. What should a reasonable man’s response to the risk have been.

I am in no doubt that the Defendant should have foreseen the risk of some damage being caused to a patron that night. It was a more than probable risk. A lack of adequate crowd control enabled the unfortunate Mr. Miller to be stripped of his lower garments and at a time when he was very intoxicated. It was foreseeable that something of that kind might happen (something the same or like it had happened on another occasion it seems) and that another patron would try to help Miller. It was also foreseeable that the patron would need elevation to retrieve Miller’s clothes. The Defendant’s pleadings to the effect that it was forbidden for patrons to stand on bar stools is not supported by the evidence; the practice was frequent and not discouraged. No signs concerning use of bar stools were exhibited. Thus, in my mind, the combination of inadequate crowd control and wet carpet led to Mr. Lister falling from the stool - an event which I hold to have been reasonably foreseeable by the Defendant.
Thus I have found not only that there was a duty of care upon the Defendant but also that the Defendant was in breach of that duty. In those circumstances, I cannot see how there could be any problem with causation. The Defendant’s breach of duty was obviously a cause of Mr. Lister’s injury.
However, that is not the end of the matter. The Defence has raised issues of contributory negligence and voluntary assumption of risk.
I turn first to the question of contributory negligence. The Defence concentrates on three main allegations of negligence against Mr. Lister. First, that Mr. Lister did not report what had happened to Miller to bar staff or security staff and failed to seek their assistance for Miller. Second, that he lost his balance when standing on the stool and also failed to obtain assistance from other patrons in retrieving Miller’s clothes. Third, that he acted voluntarily in trying to retrieve the clothes and acted “when he was not required to do so”.

I cannot accept any of those propositions. It is fact that Mr. Lister failed to inform the Defendant’s staff or enlist their aid. He took the view that no-one else (including the Defendant’s staff) was doing anything to assist Mr. Miller. In the case of the Defendant’s staff he was right. That was a view shared by Mr. Kenyon who was also about to help. It was entirely reasonable that Mr. Lister should have acted as he did. His decision was reasonable in all the circumstances.
The evidence that I accept is that Mr. Lister did not over-balance on the stool - he slipped and fell from it. In fact, Mr. Lister did have assistance in that Mr. Kenyon steadied the stool as Mr. Lister climbed on to it. Mr. Lister was fit and sober. He slipped on the stool for reasons other than those alleged.

I do not see how the third allegation differs much from the volenti point. It is, I suppose, true to say that Mr. Lister was not required to assist Miller. He could have turned a blind eye or left it to others. He was under no legal obligation to do anything. However, having elected to help, he placed himself under a duty to take reasonable care for his own safety. The only possible area where Mr. Lister may have been deficient in that respect was that he may not have inspected the seat of the stool before climbing on to it or he may have neglected the fact of the damp carpet. However, those allegations are not made in the pleadings, indeed, it would have been inconsistent with the Defendant’s case which was that there was no ice fight and the carpet was dry. Further, in my view, it was not moisture from ice on the stool that caused Mr. Lister to slip. It was moisture from the carpet that was the cause.
In the course of his address, Mr. Bell (for the Defendant) enlarged upon the second of the possible areas of contributory negligence when he submitted that Mr. Lister was clearly 50 per cent to blame for his own misfortune because, if the carpet near the stool was wet, then he must have appreciated that fact and the possible consequences that might flow from it in the circumstances. This is my summary of the submission.
Of course, the argument is (as I have said already) quite inconsistent with the main thrust of the Defence but I think that it merits discussion. It arises squarely on the evidence.
Mr. Lister must have known that the carpet was wet. In climbing on to the stool with the soles of his shoes wet from the carpet, did he depart from the standard of care required of him? I think that the inescapable conclusion is that he did. Mr. Lister was under a duty to take reasonable care for his own safety. That is, to guard against reasonably foreseeable risks of harm. Inherently, there was nothing in the nature of a real risk of harm in mounting the stool but, with wet shoes, such a risk arose. Mr. Lister knew the carpet was wet and failed to take any steps to ensure that his shoes were dry before he climbed on to the stool.
However, when it comes to apportionment, I cannot agree that Mr. Lister’s contribution should be anywhere near 50 per cent. Having considered the matter closely and at length, I think that a reduction in damages of 20 per cent is appropriate.
I am of the view that the allegations of contributory negligence are made out to that extent. The question of volenti is often confused with contributory negligence and, as a matter of common sense, I wonder why volenti is still on foot as a separate issue. However, that is not for me to pause over at any greater length.
Defences of voluntary assumption of risk very rarely succeed. I suppose that is so because voluntary assumption of risk must involve knowledge of the risk. The onus of proof rests upon the Defendant:-

“In order for the defence of voluntary assumption of risk to defeat a negligence action the plaintiff must be held to have consented to the eventuation of the risk of injury which in fact eventuated.” (Australian Torts Reporter at 18,521)

Balkin and Davis in their work “Law of Torts” are content to adopt the following definition of the defence of volenti:-

“If the defendants desire to succeed on the ground that the maxim volenti non fit injuria is applicable, they must obtain a finding of fact that the plaintiff freely and voluntarily, with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it.”

I am also content to accept that statement as an accurate summary of the law. On my view of the facts in this case, the evidence does not justify a factual finding as required. The defence must fail.
Next, I come to the assessment of Mr. Lister’s damages. I commence by referring to the words of Bright J. in Dibbins v. Dibbins (1978) L.S.J.S. 165:-

“This case is an example of the useful principle that where medical evidence is in conflict the primary consideration may be the credibility of the plaintiff..................
..............But if the doctors disagree the judge still has to decide, and he may not make it his first concern to assess the relative credibility of the doctors. I think he may first assess the evidence of the patient.”

In the case at bar, the only medical evidence before me is that of Mr. Teague (orthopaedic surgeon) and Mr. Morrison (orthopaedic surgeon) both of whom were called by Mr. Lister. I have also the reports of both surgeons as exhibits.
Both surgeons were quite objective in their evidence. In many areas there was little or no difference in their opinions. However, Mr. Teague was more optimistic than Mr. Morrison in areas such as permanent disability.
My views of Mr. Lister as a witness appear earlier. The same comments apply to his evidence on the damages issue.
In areas of conflict between the surgeons, I prefer Mr. Morrison. I accept also Mr. Lister’s evidence about aspects of his injuries that may go beyond what the surgeons said. They are not greatly significant areas but they are real and significant to Mr. Lister and they must sound in damages in a minor way.
I add that some of the matters to which I refer in Mr. Lister’s testimony are corroborated by his wife.
As a result of falling from the stool, Mr. Lister suffered an open fracture of his left tibia and fibula and a fracture to his left elbow. He was taken to Lyell McEwin Hospital but, after examination, was transferred to the Royal Adelaide Hospital and admitted.
The next day he had surgery. That procedure, according to Mr. Teague’s report (exhibit P3) involved “an intra-medullary Austofix nail with cross locking screws internal fixation of the left tibia and open reduction and internal fixation of the left radial neck fracture utilising an interfragmentary screw from the lateral shaft fragment into the radial head. This fixation was reinforced with Kirschner wire hold. ..........The left elbow fracture was splinted in an above elbow fibreglass cast.”
Mr. Lister spent Christmas in hospital but was mobilised quickly with a walking stick (he could not use crutches because of his fractured elbow) and he was discharged to go home on 30th December, 1994.
On 27th January, 1995, the fibreglass cast was removed from his left arm and the wire removed from the left radius. Mr. Lister was given an elbow brace to assist mobilisation of his arm.
On 23rd August, 1996, the nail and screws were removed from Mr. Lister’s left tibia. This procedure led to three days in hospital.
That is the extent of Mr. Lister’s surgical treatment. Of course, that treatment was punctuated by regular check-ups and assessment of recovery.
Mr. Lister says that, immediately after his fall, he felt “a lot of pain in the elbow” and “a little bit of pain in the leg”. He was given on the spot treatment by the ambulance officers and thereafter his memory of events is vague until he left Lyell McEwin Hospital.

When Mr. Lister awoke after his initial surgery at Royal Adelaide Hospital, he felt “sick and sore and miserable”. His stay in the hospital was not a good period for him. He was encouraged to bear weight on his fractured leg and he found that to be difficult and painful. His first two months or so at home were also unpleasant and painful in that he had great difficulty with mobility, he spent much of his time reclining, he was in pain and he could not shower, shave or wash his hair without assistance from his wife.
With the passage of time, Mr. Lister gained strength and mobility. He had aches and pains but was much better. Such was his improvement that his medical advisers permitted him to return to work but on the basis that he should work no more than eight hours a day and not lift anything above 25 kg. in weight. Mr. Lister returned to work on that basis on 26th April, 1995.
Mr. Lister found that, even when working with limitations, he felt very tired at the end of the day and his left leg and elbow were sore and uncomfortable. His leg ached at night and sometimes woke him up. He had some limitation of movement in both limbs but he persevered.
Mr. Lister continued to work with limitation of hours and on weight to be carried until late August, 1996. That is, until after the nail and screws were removed from his leg. During the period of limited work, he experienced some pain, stiffness, swelling of the ankle, tiredness and numbness in his leg. I do not propose to elaborate any further in that regard. Details appear in Mr. Lister’s evidence and that of the surgeons.
After the surgery to remove the nail and screws from his leg, Mr. Lister experienced burning pain in his foot for three days or so. Two of his toes became numb and remain in that condition. He continued to have the (by now) usual minor aches and pains. After six weeks, he returned to work without any restrictions and has worked full-time and without limitation since.
Mr. Lister finds that he still gets “a lot of aches and pains in the leg and elbow”. If he sits for a long time he has to stretch his leg before it “seizes up”. Mr. Morrison assesses Mr. Lister’s residual disability at 10 per cent loss of function of the left elbow and 15 per cent loss of function of the left leg at and below the knee. This is regarded as permanent. No further treatment is indicated.
So it is that Mr. Lister is left with permanent disability, some limitation of movement in both limbs and sundry aches and pains and other sequelae which have and will continue to impinge upon his lifestyle and enjoyment of life. To use Mr. Lister’s words, his failure to recover fully left him “depressed” and he is disappointed that his leg (for example) is worse, if anything, than it was two years ago.
Prior to his fall from the stool, Mr. Lister was an active, fit man. He played competitive tennis twice weekly, he played par 3 golf regularly (every six weeks or so), he swam regularly and played social cricket. He enjoyed jogging and did daily sit-ups and push-ups. In addition, he assisted his wife with the housework, maintained his house and garden and had no difficulty in driving a manual motor vehicle.
Now, and as a result of his injuries, he still plays tennis but not as well as he did. He lacks speed and mobility on the court. Despite doing a great deal of exercise to regain fitness, he can no longer do more than a few push-ups. His ability to swim is limited because his left arm will not permit him to do the backstroke adequately. He can no longer jog for long without his leg aching. He cannot play golf. He feels that he can do housework but not vacuuming. His ability to maintain his house is limited. He can do many things but he cannot prune or clean gutters. His arm injury makes the use of shears painful and he has lost his head for heights as a result of his fall. He finds that using the clutch in a manual car is difficult because of his leg problems.
Mr. Lister and his wife have enjoyed a long and happy marriage. Up to the time of the fall, their sexual relations were good. They had intercourse regularly. After the fall things changed. Of course, initially, Mr. Lister’s injuries made intercourse impossible. However, as Mr. Lister became stronger and more mobile he reasonably expected to be able to resume relations with his wife. It seems that Mrs. Lister has a physical problem which makes it impossible for her to have intercourse other than in the missionary position. Now, as a result of residual difficulties in his leg and arm, Mr. Lister finds it difficult to kneel or rest on his arm. Thus it makes sexual intercourse a difficult and much less satisfying experience. This is not likely to improve.
I do not propose to dwell upon Mr. Lister’s physical problems at greater length. Plainly, he sustained quite serious injuries from which he made a reasonably good recovery but not without attendant pain and discomfort. He has been left with permanent, annoying rather than disabling, residual disabilities. There has been impingement, and will continue to be impingement, upon his enjoyment of life. They are nowhere near as bad as they could have been had it not been for Mr. Lister’s attitude to life and his desire to recover. Many others would not have done so well.
Mr. Lister is entitled to receive a moderate, but significant, award for past and future pain and suffering and loss of amenities of life. The amounts are, at large, not being affected by the provisions of the Wrongs Act, 1936, as amended.

The question of past and future economic loss is not without its difficulties. It is proved that Mr. Lister was away from work from the date of the accident until the 26th April, 1995. From 26th April, 1995 to 23rd August, 1996, Mr. Lister worked on a restricted basis. The nail and screws were removed from his leg in August, 1996. He then had a further six weeks off work before resuming on an unrestricted basis.
Thus it is that Mr. Lister is entitled to be compensated for 18 weeks initial loss of income, 16 months partial loss of income and six weeks loss of income in respect of the periods of total absence from work or limited work. There is also something that might have to be allowed for any loss of earnings from October, 1996 to the date of trial.
Preferring Mr. Morrison to Mr. Teague as I do, I do not propose to discount or disallow any past loss of earning capacity in consequence of Mr. Teague’s optimistic, and I think much overly optimistic, opinions expressed as they were in 1995.
I have considered counsel’s submissions concerning past economic loss. I have considered Mr. Lister’s income tax returns relevant to the time of loss. I have considered Mr. Lister’s evidence about his period of work on restriction and the fact that work became harder to get with the passing of time and the change in work arrangements at Brambles. I can see no effective, realistic method whereby I can calculate, with any degree of precision, Mr. Lister’s pre-trial economic loss. I feel unable to allow anything for the time that he worked after October, 1996 to the date of trial. There is insufficient proof. I have decided to fix a conservative global figure. The best that I can do on the evidence is to award the sum of $10,000.
The question of future economic loss is more difficult. The Defendant contends simply that there should be no award. Mr. Lister seeks a “significant award”. I take the view that Mr. Lister has proved that he has some permanent incapacity. He works in a highly competitive business. Work is getting harder to get. The time may come when Mr. Lister, either physically or because of lack of income or for some other reason, needs to change jobs. He is at a disadvantage on the labour market and is entitled to a modest award in that regard. I think that the sum of $7,500 is appropriate.
Special Damages are agreed in the sum of $7,060.

I award the following sums under the following heads of damage for Mr. Lister:-

Past pain and suffering and loss of amenities $25,000

Future pain and suffering and loss of amenities 25,000

Past economic loss 10,000

Future economic loss 7,500

Special Damages 7,060
_______

$74,560
_______

100 That amount must be reduced by 20 per cent and Mr. Lister will have judgment for the sum of $59,648.00. I will hear counsel as to questions of interest and costs.

101 Finally, I turn to Mrs. Lister’s claim. I set forth the claim as pleaded in the Statement of Claim:-

“30... The secondnamed plaintiff is and was at all material times lawfully married to the firstnamed plaintiff.
31.As a result of the injuries suffered by the firstnamed plaintiff, the secondnamed plaintiff has suffered a loss of consortium.
......... PARTICULARS
32.(a) As a result of the said injuries, the firstnamed plaintiff is unable to provide the secondnamed plaintiff with the level of support, care, consideration and affection that he previously provided to her.
......... (b) The sexual relationship of the firstnamed plaintiff and secondnamed plaintiff has dramatically diminished due to the injuries sustained by the firstnamed plaintiff.
33.AND the secondnamed plaintiff seeks damages for loss of consortium pursuant to Section 33 of the Wrongs Act as amended.”

102 It will be seen that the claim is limited to loss of consortium as, indeed, it had to be on the material before me. I do not need to cite authority for the proposition that such awards are almost inevitably modest. Duplication of compensation must be avoided. Any award of damages should be apportioned between past and future. Damages to be awarded in Mrs Lister’s case will come from the following areas which I adopt from Law of Torts (supra), on this occasion at page 702:-

“The final head of damages which may be claimed in a consortium action is for the loss of society, companionship and comfort. This must, it has been said, ‘be confined to material or temporal loss capable of estimation in money’, Toohey v Hollier (1955) 92 CLR 618 at 628, by which is meant that there is no recovery for the plaintiff’s suffering, distress or depression resulting from the physical condition in which the other spouse has been put Andrewartha v Andrewartha (1987) 44 SASR 1 (FC); Marinis v Bennett (1987) 140 LSJS 400 at 405 per White J (FC); Lobb v Ellis (1989) 10 MVR 88 (SA FC). What may be recovered is recompense for such matters as the loss or diminution in the extent or quality of sexual relations Keally v Jones [1979] 1 NSWLR 723 at 750 per Samuels JA (CA); Norman v Sutton (1989) 9 MVR 525 at 535-6 (NSW CA) and companionship Johnson v Kelemic (1979 FLC 90-657 at 78,491 per Reynolds JA, at 78,493 per Samuels JA (NSW CA) or the loss of aid, comfort and advice Toohey v Hollier (1955) 92 CLR 618 at 624; Pickering v Ready Mixed Concrete (Qld) Pty Ltd [1967] QWN 45.

103 On Mrs. Lister’s evidence, which is not contested, before Mr. Lister’s fall, the two of them enjoyed a reasonably regular and satisfying sex life. After the accident, there was no sex at all for some twelve months. For much of that time, sexual intercourse would have been out of the question in consequence of Mr. Lister’s injuries. As time passed, the couple attempted to have intercourse but it proved difficult and embarrassingly so. Sexual intercourse between them has become rare. However, in all other respects, their relationship remains loving and as it was. In addition to the severe diminution of the sexual side of their lives, there has been very minor reduction in aid offered to Mrs. Lister by her husband, although that may increase, one would think, if and when their son, who is at home now (and at all relevant times to date) leaves home. I see no need to say more.

104 I think that an award of $2,000 for past loss and $4,000 for future loss is called for.

105 Accordingly, there will be judgment for Mrs. Lister in the sum of $4,800 after allowing for a 20 per cent reduction. I will hear counsel as to questions of interest and costs.

[1998] SADC 3943

23 December 1998