Livermore v Crombie
[2005] QSC 367
•8 December 2006
SUPREME COURT OF QUEENSLAND
| CITATION: | Livermore v Crombie & Anor [2005] QSC 367 |
| PARTIES: | KENNETH JAMES LIVERMORE |
| (Plaintiff) | |
| v | |
| JEANETTE CROMBIE | |
| (First Defendant) | |
| and | |
| NAMATJIRA PTY LTD | |
| (Second Defendant) | |
| FILE NO: | S68/2002 |
| DIVISION: | Trial Division |
| DELIVERED ON: | 8 December 2006 |
| DELIVERED AT: | Rockhampton |
| HEARING DATES: | 12-14 September 2005 |
| JUDGE: | Dutney J |
| ORDER: | The action be dismissed |
| CATCHWORDS: | NEGLIGENCE – DUTY OF CARE – BREACH OF DUTY – where the plaintiff was severely injured by unprovoked attacks while in a hotel – where the plaintiff sued manager of the hotel and the licensee for negligence in their operation of the hotel – where perpetrators were involved in a previous incident – whether reasonable response to the incident by hotel management to discharge duty of care |
| NEGLIGENCE – STATUTORY DUTY OF CARE – BREACH OF STATUTORY DUTY – where the plaintiff was severely injured by an unprovoked attacks while in a hotel – where the plaintiff alleges breach of statutory duty under the Liquor Act 1992 – whether defendants liable for not removing the perpetrators from the hotel prior to the incident – whether defendants liable for continuing to serve the perpetrators alcohol | |
| Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91, cited. Cole v South Tweed Heads Rugby League Club Ltd (2004) 217 CLR 469, cited. Evidence Act 1977 (Qld), s 92. Liquor Act 1992 (Qld), s 165. | |
| COUNSEL: | Mr R. King-Scott for the Plaintiff Mr. R. L. Dickson for the First and Second Defendants |
| SOLICITORS: | McKays Solicitors for the Plaintiff Barry & Nilsson Lawyers for the First and Second Defendants |
| LIABILITY |
The plaintiff (“Mr Livermore”) was severely injured in an altercation at the Eimeo Hotel on 21 May 1999. He was attacked by Brian Michel. The attack was unprovoked and unexpected by Mr Livermore. A short time later, Mr Livermore was again assaulted by Brian Michel and his brother Kaden Michel.
Mr Livermore has sued the manager of the hotel and the licensee for damages for the injuries suffered by him alleging negligence in their operation of the hotel and breach of statutory duty.
At the time of the assault Mr Livermore was 44 years of age having been born on 3 April 1956. On 21 May 1999, Mr Livermore arrived at the hotel at about 6:30 pm. He purchased a packet of cigarettes and a carton of beer and then left. He returned shortly before 9.00 pm with a friend. By that stage, some of the patrons of the hotel were quite noisy. Mr Livermore sat at the public bar on a stool. An area of the hotel nearby the public bar was known as the “ironing boards.” The name was derived from the shape of some fixed tables in that part of the hotel.
According to Mr Livermore, his first knowledge of Brian Michel was when he felt a tap on his shoulder. He looked up and the person who had tapped his shoulder motioned that he wished to speak to him. This person was Brian Michel.
Mr Livermore had been a union official for some years and it was not uncommon for strangers to approach him unannounced wishing to speak to him about a union matter. The person said something to Mr Livermore which Mr Livermore was unable to hear because of the background noise. Mr Livermore followed the person out of the public bar into a hallway that led to the toilets. The man turned into the toilets. Mr Livermore stopped near the entrance. Mr Livermore was looking down as he followed the man. His line of sight was at about the back of the man’s legs. Without warning the man punched Mr Livermore in the jaw.
Mr Livermore was stunned by the force of the punch and thrown backwards. He did not fall over. Other patrons of the hotel quickly intervened. Mr Livermore recollected seeing Mr Beswick step between the man and Mr Livermore. Mr Beswick was a patron of the hotel.
Brian Michel left and Mr Livermore returned to his seat at the bar. He could feel broken teeth and a gap in his jaw where he had been struck.
After sitting for a short time Mr Livermore began to contemplate the likely medical and other costs associated with his injury. He decided to find out who his assailant was. Mr Livermore went out of the hotel to the landing at the top of the steps leading down to the car park. He saw a group of people in the car park including Mr Beswick, Neil Rodgers and Brian Michel. Mr Livermore called out, “What the hell was all that about?” and walked towards the group. Mr Michel saw him coming, broke away from the group and approached Mr Livermore. As the two men got close to each other, Mr Michel punched Mr Livermore in the face again. At the same time, Mr Michel’s brother, Kaden, hit Mr Livermore from behind. Mr Livermore fell to the ground and as he did so he felt himself being kicked.
Other witnesses gave accounts of the affair. While the accounts do not agree in every detail they are generally consistent with the evidence of Mr Livermore in the important details.
Nigel Ranson was a patron in the hotel on the night. He had been there since about 7:30 or 8.00 pm. His first indication of any trouble was seeing Brian Michel running through the bar with his shirt off and calling out, “Come on. I’ll take you all on!” The man ran from the toilet area to the door of the hotel. Peter Beswick was following him. They went out onto the landing and down the steps into the car park. The bar manager, Sean McDonnell, also followed. Mr Ranson also went down into the car park. As they were standing there talking, he saw Mr Livermore at the top of the steps calling out “What’s your name?” or “Who are you? Mr Livermore then started to walk down the steps towards them. Brian Michel took a step or two towards Mr Livermore and then punched him. At the same time Mr Michel’s brother king hit Mr Livermore on the right side of his face. Mr Livermore sank to the ground where he was kicked. Mr Ranson could hear a noise like the crunching of bones in Mr Livermore’s jaw. The two Michel brothers were restrained and drove off shortly afterwards.
Mr Ranson’s wife, Elizabeth Ranson gave evidence. She was also present at the time. Mrs Ranson has suffered a stroke since the events from which this action arose which has limited her capacity to give evidence. She saw the incident in the car park but could add nothing relevant to the account given by her husband.
Anya Henare was sitting with Mr Livermore and a friend, Rhonda Blundell. She had noticed the Michel brothers in the bar before Brian Michel approached Mr Livermore. She did not see or hear anything untoward concerning them prior to Brian approaching Mr Livermore. She saw Brian Michel tap Mr Livermore on the shoulder and motion to him to follow. Mr Livermore got up and followed the man towards the toilets and out of sight. A few moments later she heard a loud bang as if someone had fallen or fallen against the wall. She saw Peter Beswick, Neil Rodgers and Nigel Ranson go to the area from where she heard the noise. Brian Michel then “stormed” out from that area and was followed by Peter Beswick and Nigel Ranson. Mr Michel took his shirt off. Mr Michel went straight out the front door. Mr Livermore came out after them and Ms Henare and Ms Blundell attended to his injury.
The next thing Ms Henare noticed was some sort of disturbance in the car park.
Mr Livermore said words to the effect, “Why did he do this to me?” and broke free of Ms Henare’s restraining arm and went outside. Ms Henare and Ms Blundell advised him not to go but Mr Livermore went anyway. When Mr Livermore went outside Ms Henare thought he was fairly aggressive and angry. Ms Henare did not see the incident in the car park.
Neil Rodgers was employed on the night of the incident as a barman at the Eimeo Hotel. He noticed Brian Michel get up from his seat in the ironing board area and walk towards the toilets. To get to the toilets he had to walk past the public bar. As he did so Mr Rodgers observed what he thought was Brian Michel whisper something to Mr Livermore. Mr Livermore then stood up and followed him. Mr Rodgers followed because what had happened seemed odd and Brian Michel had been involved in an incident earlier which had resulted in Mr Rodgers keeping an eye on him. As he went in the direction of the toilets, Mr Rodgers heard a noise that sounded to him like someone had been pushed against the wall. Mr Rodgers arrived momentarily before the bar manager, Mr McDonnell.
Mr McDonnell immediately asked Mr Michel to leave the hotel. Brian Michel started to leave and collected his brother and the women they were with in the bar before departing the building. Mr McDonnell went with them and Mr Rodgers returned to the bar. From his position, Mr Rodgers could only see some of what transpired in the car park. He noticed Mr Livermore moving towards the brothers and a scuffle breaking out.
Mr McDonnell could not be located and consequently did not give evidence. A statement was tendered pursuant to s 92 of the Evidence Act 1977.
In his statement, Mr McDonnell said that he saw Mr Michel walk past Mr Livermore on the way to the toilets. He thought he saw Brian Michel whisper something to Mr Livermore who followed him. The next thing he heard was someone calling out, “Someone hit Ken!” Mr McDonnell, Mr Beswick and Mr Rodgers all went to the toilet area. When he arrived, Mr Beswick and “Nigel” had grabbed hold of Brian Michel. I assume the reference to “Nigel” was meant to be a reference to Neil Rodgers because the statement had not previously referred to Nigel. The only Nigel to which I was referred in the evidence was Nigel Ranson who did not claim to be in the toilet area.
Mr Rodgers told Brian Michel to leave the hotel. As Mr Rodgers was talking to Mr Michel, Kaden Michel came into the area. Mr McDonnell told them they would both have to leave the hotel. Brian was starting to “burr up a bit.” The Michel brothers began walking out of the hotel. They went past the ironing board area where the women who were with them were sitting and told them they were going.
Mr McDonnell dialled the police but before the phone was answered he heard the sound of an altercation in the car park. He put the telephone receiver down and went outside where he saw Brian Michel with his shirt off shaping up to Mr Beswick. Mr McDonnell went down to the car park and stood between Mr Beswick and Mr Michel. At this stage Mr Livermore came up and asked Brian Michel what his name was. As Mr Livermore did this, Brian Michel punched Mr Livermore in the head. Mr McDonnell then punched Brian Michel and took hold of him. Mr McDonnell then saw Kaden Michel kicking Mr Livermore in the back. A general fight then broke out. Eventually, the Michel brothers left the car park.
I am satisfied on all of this evidence that Brian Michel approached Mr Livermore while he was sitting in the bar. Mr Michel indicated that Mr Livermore should follow him. When Mr Livermore followed Mr Michel, Mr Michel punched Mr Livermore in the jaw. The assault was unprovoked.
Mr Livermore went into the car park to find out who had hit him and why and was again the victim of a savage and unprovoked attack.
After the first attack, the bar staff were quickly on the scene and ejected the Michel brothers from the premises. The brothers went as far as the car park before beginning another altercation. By the time Mr Livermore arrived, the Michel brothers were apparently under control but broke away and again attacked Mr Livermore as he approached. The bar staff were in the process of having the Michel brothers leave the car park when the second assault took place.
The allegations made in the statement of claim are that the hotel management was negligent or in breach of their duty under the Liquor Act 1992 in failing to have removed the Michel brothers from the premises prior to the incident with Mr Livermore taking place and continuing to serve them alcohol.
The allegations are primarily based on an incident which occurred earlier in the evening and which the statement of claim describes as “the Crabtree incident”.
This incident involved another patron of the hotel, a Mr Crabtree.
Mr Crabtree did not give evidence. Mrs Shirley Ottley said she was sitting with Mr Crabtree when the Michel brothers walked to where he was sitting and accused him of looking at one of the women who were with the Michel brothers. They were provocative but Mr Crabtree told them to, “Piss off and leave us alone!” Mrs Ottley made a similar remark and after a few minutes the Michel brothers went back to their seats. There was no physical contact. Mrs Ottley commented that the brothers were probably on something. She could not say if it was alcohol or drugs but they were being a nuisance. Mrs Ottley informed Mr McDonnell of the incident and of her opinion that the two men were trouble makers.
Although Mr Ranson was in the hotel at the time he was not aware of the Crabtree incident. He did say that although he did not form the impression that the Michel brothers were drunk, he thought they were on some substance because they seemed excited and quite loud.
Mrs Ranson did witness the Crabtree incident. She saw the two Michel brothers talking to Mr Crabtree and Mrs Ottley. Although she could not hear what was said she formed the impression that the Michel brothers were looking to start a fight. She informed Mr McDonnell of her belief.
Rachel Garnham was working in the bar at the time of the Crabtree incident. She recalled Mr Crabtree being by himself. The two men approached him. She did not know what was said but her recollection was that Mr Crabtree stood up and offered to take the two men outside. The men then backed off and left Mr Crabtree.
Nothing the Michel brothers had done before that incident had caused Ms Garnham to notice them. Ms Garnham suggested to Mr McDonnell that the Michel brothers not be served further drinks although Ms Garnham’s opinion was that neither man was particularly intoxicated. Mr McDonnell said he would keep an eye on the men and Ms Garnham was content with that response. Mr Crabtree did not appear to Ms Garnham to be affected by the incident.
Ms Henare observed the Michel brothers in the hotel prior to the assault on Mr Livermore. She observed that they were socialising but did not observe anything untoward or unusually loud or boisterous in their behaviour.
Philip Minchin was a “glassy” in the hotel on the evening of 21 May 1999. He did not witness the incident involving Mr Livermore but did see a melee in the car park, which involved Mr Livermore being on the ground and some locals scuffling with the Michel brothers and the two women who were with them. He had seen the Michel brothers in the bar earlier. He described their behaviour then as “pretty tame.”
Mr Rodgers saw the Michel brothers arrive. He described them as well dressed. They were not staggering, swaying or swearing. There was no indication that there was any problem with their behaviour at that time. They were with two women. They bought drinks and went to the ironing board area. A little later, Mr Rodgers heard a disturbance and saw Mr McDonnell talking to Mr Crabtree and one of the Michel brothers. This was about an hour before Mr Livermore was assaulted. After the incident, Mr Rodgers kept an eye on the brothers. It was normal hotel policy to keep an eye on anyone who had created any disturbance for a period afterwards to ensure the matter had fully settled. Mr Rodgers was not aware of anything else involving the Michel brothers prior to the assault. Mr Rodgers did not consider that that they were affected by alcohol.
In his statement, Mr McDonnell said that he saw the brothers arrive with two women. They bought some drinks and walked towards the lounge area. As they passed Mr Crabtree and Ms Ottley there was an argument between Brian Michel and Mr Crabtree about Mr Crabtree looking at one of the women. Mr McDonnell intervened and the Michel group went out onto the patio. After that Kaden Michel bought another round of drinks without incident. After Mr Crabtree and Ms Ottley left the hotel, the group came back inside to the area where Mr Crabtree had been sitting.
On the basis of this evidence, I am satisfied that when the Michel brothers arrived at the hotel there was nothing in their appearance or behaviour to attract attention. They were noticed because they were strangers in a hotel where virtually all of the other patrons appeared from the evidence to be regular attendees and knew each other by first name, at least.
The Crabtree incident involved a verbal altercation between Mr Crabtree and one of the brothers. There was no physical contact. Some patrons were concerned that the strangers might be looking for trouble and properly warned the bar staff of their fears. The bar staff then kept a closer eye on the brothers than they might have kept on other patrons. The incident settled quickly and there was nothing further in the behaviour of the brothers that attracted adverse attention until the assault on Mr Livermore.
The comments about the brothers being on drugs seem to me to be of no evidential value. The comments amount to unqualified opinions, which I regard as being heavily coloured by what happened later.
There is no evidence that the brothers were seriously intoxicated.
Mr McDonnell was aware of the Crabtree incident. He had intervened to ensure it did not get out of hand. Both he and Mr Rodgers were keeping alert for any sign of trouble.
I am not satisfied that this response to the Crabtree incident was inappropriate.
The duty of care owed by the proprietor of licensed premises was discussed by McHugh J in Cole v South Tweed Heads Rugby League Club Ltd (2004) 217 CLR 469 at 480, McHugh J described the duty in these terms:
“Basic principle in the law of negligence holds that a defendant is liable in negligence only when the defendant owed a duty of care to the plaintiff, breached that duty, and, as a result, caused injury to the plaintiff of a kind that was reasonably foreseeable. If the defendant owed a duty of care to the plaintiff, breach of duty is determined by considering whether an act or omission of the defendant gave rise to a risk of injury to the plaintiff that, by the exercise of reasonable care, could have been foreseen and avoided. In determining the breach issue, what the defendant knew or ought to have known is critical. If the duty has been breached, the defendant will be responsible for any injury suffered by the plaintiff that, as a matter of common sense, is causally connected with the breach and is of a kind that was a reasonably foreseeable consequence of the breach.”
More relevant factually is the following passage from the judgment of the Full Court in Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91 at 99:
“Particularly in the case of an hotel, which provides a facility pursuant to a licence authorising the provision of liquor and pursuant to Acts and regulations which require or imply that the facility be open to the public, it is necessary to keep in mind that the licensee may have no control over his patrons save the power to eject them for good cause. As we have said, the manager must take reasonable care for his patrons and, if cause is shown which requires that a patron be closely supervised or ejected or that another patron be warned, the manager should take whatever may be the appropriate step in the interests of the safety of his patrons. However, what is the appropriate course in a particular case obviously depends upon the circumstances of the case.”
I am satisfied on the evidence before me that the conduct of the Michel’s prior to the attack on Mr Livermore did not warrant their being ejected from the hotel. The Crabtree incident was a minor event. It was a single incident which involved no violence. There was no aftermath. The action taken, being to monitor the brothers thereafter, was a reasonable response to the incident and sufficient to discharge the duty of care imposed on the hotel having regard to the magnitude of the foreseeable risk and the probability of it occurring. Common sense suggests that if every patron of a hotel who exchanged a cross word with another patron over some perceived slight was ejected on the off chance that they might later launch an unprovoked and unexpected attack upon somebody entirely different, many such establishments would be largely empty.
Following the first attack, the brothers were directed to leave the hotel and they appeared to be doing so. There was some altercation in the car park with other patrons but that did not appear to be of particular consequence until Mr Livermore appeared and approached the brothers. While I am not persuaded that Mr Livermore was acting unreasonably or contributed to his own misfortune in endeavouring to find out who had struck him, I am also not satisfied that there was anything more that could reasonably have been done by the staff of the hotel which would have prevented the second assault. I accept that Mr McDonnell tried to telephone the police but was distracted by the commotion in the car park. In any event, there is nothing to suggest that the failure to call the police at that stage was causative of any loss. There is nothing to suggest that the police could have arrived in sufficient time to prevent the second assault.
The statutory provisions relied on do not take the matter any further. The evidence does not support the conclusion that it was apparent that the Michel brothers were unduly intoxicated so as to require the hotel to refuse to serve further alcohol. Indeed, the observations of most patrons and staff who gave evidence were to the contrary. Section 165 of the Liquor Act 1992 imposes a duty on the patron being ejected to leave the premises. It does not impose any duty on the publican to eject any patron. In any event I am satisfied that there was no conduct on the part of either of the Michel brothers prior to the assault on Mr Livermore which would have required the staff to ask them to leave the premises.
In the light of my findings the action must be dismissed.
QUANTUM
As a result of the assaults, Mr Livermore suffered a fracture of the right angle of the mandible and a fracture of the left anterior body of the mandible. He lost three teeth and suffered a cut over his left eye.
Consequent upon his injuries, Mr Livermore has developed a psychiatric disorder. Dr Athey diagnosed the disorder as Post traumatic Stress Disorder. Dr Varghese diagnosed a chronic adjustment disorder. Both involve symptoms of depression. I do not perceive that the label given to the condition is of much consequence for present purposes.
Mr Livermore has become withdrawn and avoids social contact.
Prior to the assault Mr Livermore worked as an electrician. It seems to be conceded by the defendants that he can no longer work in that capacity. He has an aversion to alcohol and the company of people who are drinking. Mr Livermore was threatened by the Michel brothers as they were leaving Court after pleading guilty to charges arising from the assault on Mr Livermore. This aggravated his social withdrawal.
Mr Livermore suffered considerable physical effects from the injuries. Apart from the pain associated with the assault, his jaw has been left predisposed to infection. He has numbness on either side of his lower lip which means he cannot feel food on his lower lip when eating and suffers some social embarrassment as a result. He has lost the pleasure of kissing. On occasions he dribbles when eating. He has trouble chewing as a result of the lost teeth.
Dr Athey and Dr Schneider are pessimistic that Mr Livermore will return to work in any significant way. Dr Varghese is optimistic. It is now more than six years since the assault. Mr Livermore has made some attempts to return to work which have been unsuccessful. His failure to return to work is related to the psychiatric condition from which he suffers as a result of the assaults. I accept Dr Athey’s opinion that after this period of time the condition is unlikely to resolve. I consider his prospects of a full time return to work at the age of 49 are not good. I assess his lost earning capacity for the future at 75%.
At present electricians in the mining industry earn in the order of $85,000 to $100,000 gross per annum. This gives a range of $1730 to $1335 net per week. The plaintiff calculates his future loss on the basis of net earning of $1,200 per week. At the time he was injured Mr Livermore was earning $925 net per week. Shortly after he was injured the workers at the Oakey Creek mine where he had been working were retrenched. Mr Pierce, an official from the CFMEU gave evidence that since 2000 demand for workers has been rising in the coal mining industry. The use of $925 claimed by the plaintiff for past economic loss is sufficiently conservative to take account of any short period of retrenchment.
I assess damages as follows:
Pain & Suffering 55,000.00 Interest on $22,000 @ 2%[1] 2,816.00 Past economic loss[2] 304,056.00 Interest @ 5% after Social Security 72,357.00 Past superannuation @ 7% 21,283.92 Future economic loss[3] 424,575.00 Future superannuation @ 9% 39,933.00 Special damages and interest[4] 17,058.00 Past care and interest[5] 1,925.00 Future care – Future medical expenses[6] 10,750.00 TOTAL $949,753.92 [1] The plaintiff received criminal compensation of $33,000.[2] Calculated at $925 per week less amount actually earned as set out in paragraph [64] of exhibit 1.[3] 75% of $1200 to age 65 (say 15 years at 5% - multiplier 555) discounted by 15%.[4] Assessed at the plaintiff’s figure which is less than the defendant’s figure.[5] Assessed at the plantiff’s figure which is less than the defendant’s figure.[6] Average of defendant’s and plaintiff’s figures.
I will hear argument on costs.
2
0