Mansour v Marhop Pty Limited

[2023] NSWDC 476

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Mansour v Marhop Pty Limited [2023] NSWDC 476

Hearing dates:

8, 9 and 10 November 2022; 4, 5 and 27 April 2023

Date of orders:

8 November 2023

Decision date:

08 November 2023

Jurisdiction:

Civil

Before:

Andronos SC DCJ

Decision:

(1)   Judgment for the plaintiff against the first defendant for the assault by its employee, Nathan Moran, on the plaintiff in the sum of $3,000.

(2)   Judgment for the plaintiff against the defendants for the battery of the plaintiff by the second defendant, the employee of the first defendant, in the sum of $10,000.

(3)   Judgment for the plaintiff against the defendants for the false imprisonment of the plaintiff by the second defendant, the employee of the first defendant, in the sum of $15,000.

(4)   Interest and costs are reserved.

(5)   The proceedings are otherwise dismissed.

Catchwords:

TORTS — Trespass to the person — Assault

TORTS — Trespass to the person — Battery — Defences

TORTS — Trespass to the person — False imprisonment

TORTS — Defences — Necessity

NEGLIGENCE — Vicarious liability — Employer and employee

Legislation Cited:

Crimes Act 1900, s 61

Law Enforcement (Powers and Responsibilities) Act 2002, s 100

Liquor Act 2007(NSW), s 77

Cases Cited:

Coote v Kelly; Northram v Kelly [2016] NSWSC 1447

CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514; [2015] HCA 1

Dehn v Attorney-General [1988] 2 NZLR 564

Director of Public Prosecutions (NSW) v Mathers-Hunter (2014) 242 A Crim R 319 ; [2014] NSWSC 843

Fairclough v Whipp [1951] 2 All ER 834

Fontin v Katapodis (1962) 108 CLR 177

Goldie v Commonwealth of Australia No 2 [2004] FCA 156; (2004) 81 ALD 422

Knight v R (1988) 35 A Crim R 314

Louis v Commonwealth (1987) 87 FLR 277

McDonald v New South Wales [1999] NSWSC 350

Pearce v Hallett [1969] SASR 423

R v Fisher (2002) 54 NSWLR 467

Rixon v Star City Pty Ltd (2001) 53 NSWLR 98

Ruddock v Taylor (2005) 222 CLR 612

State of New South Wales v McMaster; State of New South Wales v Karakizos; State of New South Wales v McMaster [2015] NSWCA 228

State of New South Wales v Riley [2003] NSWCA 208

The Nominal Defendant v Cordin [2017] NSWCA 6

Uber BV v Howarth [2017] NSWSC 54

Watson v Marshall & Cade (1971) 124 CLR 621

Zaravinos v State of New South Wales (2004) 62 NSWLR 58

Texts Cited:

David Rolph, Balkin & Davis Law of Torts (6th ed, 2021, LexisNexis)

F Trindade and P Cane, The Law of Torts in Australia (3rd ed, 1999, Oxford University Press)

J Fleming, The Law of Torts (8th ed, 1992, LawBook Co)

Category:

Principal judgment

Parties:

James Mansour (plaintiff)
Marhop Pty Limited (first defendant)
Andrew James Lockhart-Ross (second defendant)

Representation:

Counsel:
Mr D Toomey SC with Mr J Isackson (8 November 2022) (plaintiff)
Mr D Toomey SC with Mr J Thompson (all hearing days except for 8 November 2022) (plaintiff)
Mr N Polin SC (8, 9 and 10 November 2022) (defendants)
Mr D Lloyd SC with Mr J Whealing (4, 5 and 27 April 2023) (defendants)

Solicitors:
O’Brien Lawyers (plaintiff)
Clyde & Co (defendants)

File Number(s):

2021/00341338

Publication restriction:

Nil

Judgment

1. On 11 June 2021 the plaintiff, James Mansour, and several of his friends attended the Greengate Hotel (the “Hotel”), a hotel located on the corner of Pacific Highway and Greengate Road in Killara, New South Wales. Not long after their arrival, the plaintiff and some of his friends were involved in an altercation with the security guards of the Hotel, in which the licensee and operations manager of the Hotel eventually became involved.

2. The plaintiff alleges that he was assaulted, subjected to a battery and falsely imprisoned by the Hotel’s licensee, the second defendant, Andrew Lockhart-Ross, and assaulted by the Hotel’s operations manager, Nathan Moran. Mr Mansour claims compensatory damages against the first defendant, Marhop Pty Limited (“Marhop”), the owner and operator of the Hotel and Mr Lockhart-Ross. The claim against Marhop is made on the basis that it is vicariously liable for the conduct of its employees, Mr Lockhart-Ross and Mr Moran. The plaintiff no longer presses claims for aggravated and exemplary damages, which he had initially sought.

3. The defendants generally deny the allegations. The defendants further contend, by way of defence to the allegations of battery and false imprisonment, that:

1. The plaintiff’s behaviour, and his proximity to the Pacific Highway, rendered it necessary for Mr Lockhart-Ross to take the step of putting the plaintiff on the ground and detaining him.

2. Mr Lockhart-Ross’s restraint of the plaintiff was undertaken in accordance with s 100 of the Law Enforcement (Powers and Responsibilities) Act 2002 (“LEPRA”).

Events of Friday, 11 June 2021

4. The Hotel is on the eastern side of the Pacific Highway at Killara, bound by Greengate Road to the south and the Pacific Highway to the west. To the north of the Hotel is its driveway and beyond its northern boundary are residences and buildings unrelated to the Hotel.

5. Along the Hotel’s western façade are two alcoves (a “northern alcove” and a “central alcove”), each bound by three arches facing the Highway. A third alcove (the “southern alcove”) faces the corner of the Highway and Greengate Road to the south-west. A beer garden lies between the building and the boundary of the property, beyond which is a footpath alongside the Highway. A west-facing CCTV camera was mounted high on the wall of the Hotel above the northern alcove, which recorded footage admitted into evidence (Exhibits P2 and P5). No audio accompanied the footage recorded by the CCTV camera.

6. There is no dispute that Marhop is vicariously liable for Mr Lockhart-Ross’s and Mr Moran's acts and omissions in the course of their employment. Both Mr Lockhart-Ross and Mr Moran were on duty on the evening of Friday, 11 June 2021.

7. Tony Khamis and Maroun Alhikrey were, at all relevant times, licensed subcontractor security guards who worked in that capacity at the Hotel. Both were also on duty at the Hotel on the evening of 11 June 2021. Although not employees of Marhop, both were subject to the direction of Mr Lockhart-Ross as licensee.

8. Sometime before 7:40pm on 11 June 2021, the plaintiff arrived at the Hotel and sat at a table behind the northern-most arch of the central alcove. There were approximately 5 to 10 other people sitting in the same group when the plaintiff sat down. He was twenty years old at the time, slightly built, and wearing a green VB cap.

9. At approximately 7:40pm on 11 June 2021, three young men sought to enter the Hotel via its Greengate Road entrance, at the southern end of the Hotel. The plaintiff was not among them, but a friend of his, Dominic Marshall, was. It appears that this group of three had arrived at the Hotel for the same occasion that had brought the plaintiff, and the others sitting at the table in the central alcove, to the Hotel.

10. Mr Marshall, who came to be identified in CCTV footage, was wearing a white hoodie. Mr Marshall, together with the other young men who had presented at the Greengate Road entrance to the Hotel, were refused entry because they were showing signs of intoxication.

11. Mr Alhikrey, one of the subcontractor security guards, received a radio call from the Hotel’s COVID marshal, “Matt”, to attend the Greengate Road entrance. Mr Moran and the Hotel’s duty manager, “Miles”, also attended the Greengate Road entrance.

12. After having been refused entry to the Hotel, Mr Marshall and his companions engaged in a heated verbal exchange with Mr Alhikrey, Mr Moran, Miles and Matt. Mr Marshall and/or one or both of his companions were verbally abusive towards Mr Alhikrey and the Hotel staff, saying, “Fuck off you bald cunt”, “You fat bald cunt” and “I’m more than half your age, I’ll kick your head in”.

13. Mr Alhikrey and the Hotel staff directed Mr Marshall and his two companions to cross Greengate Road, 50 metres away from the southern entrance to the Hotel. The group did so and reached the south-eastern corner of the intersection of Pacific Highway and Greengate Road. After a short while, however, they crossed Greengate Road again and headed north along the Pacific Highway to the Hotel’s western entrance, which faced the Highway. According to Mr Alhikrey, at about 7:45pm the group was intercepted at the boundary of the Hotel property by Mr Alhikrey and Mr Khamis. Mr Alhikrey and Mr Khamis attempted to move the group on to the north, but the group was reluctant to move and continued to remonstrate with the security guards.

14. By about 7:46pm, the group began to move on when Mr Marshall turned and spat at Mr Khamis. Mr Alhikrey and Mr Khamis chased Mr Marshall, Mr Khamis catching up with him at the Hotel’s driveway to the north. Mr Khamis grabbed Mr Marshall by his hoodie and dragged him from the footpath onto the driveway. Mr Marshall fell to the ground. Mr Alhikrey caught up to the two of them and Mr Marshall’s two companions arrived shortly afterwards. Mr Khamis forcefully pushed them away while Mr Alhikrey held Mr Marshall down.

15. One of Mr Marshall’s companions started recording the events using the camera on his mobile phone. As Mr Marshall got to his feet, Mr Khamis grabbed Mr Marshall by the hoodie and held on to it, pulling it over his head and off his body so that it only covered his arms. Mr Marshall backed away to the north, at a pace that was between a walk and a run, with Mr Khamis still holding onto his hoodie. At about 7:47pm, they passed the northern edge of the driveway and were then out of range of the Hotel’s CCTV camera.

16. The video footage, shot by one of Mr Marshall’s companions, shows what occurred north of the driveway. Unlike the CCTV footage, it recorded audio as well. As Mr Marshall continued to back away to the north along the footpath, Mr Khamis kept hold of the hoodie. Mr Marshall fell over backwards, his hoodie still just covering his lower arms. One of his companions is shouting, “Get off him mate, get the fuck off him”. Another is shouting, “What are you doing mate? Leave him alone”.

17. Mr Khamis grabbed Mr Marshall by the hair to hold him down. Mr Alhikrey stood over Mr Marshall while Mr Khamis stepped back.

18. At this point, the plaintiff arrived. The plaintiff had seen the events in the driveway from his seat in the central alcove. He was concerned by what he saw as Mr Marshall being followed, pushed and attacked by the security guards. He crossed the beer garden to the footpath along the Highway and joined the group to the north of the driveway. When he reached them, he saw Mr Marshall on the ground, putting his hoodie back on, while Mr Alhikrey stood over him.

19. The plaintiff bent over to check on Mr Marshall and help him to his feet. Mr Alhikrey pushed Mr Marshall back down onto the ground. According to the audio-visual evidence, on his arrival, the plaintiff showed no signs of anger, violence or agitation. He spoke to Mr Alhikrey, admitting that he told him to “Chill the fuck out”. The audio-visual evidence does not show him shouting. Mr Alhikrey pushed him and told him to move on. Meanwhile, Mr Khamis was arguing with Mr Marshall’s companions. When one of them says, “Do you want to lose your fucking job?” Mr Khamis says, “He spat at me”, the effect of which allegation he repeated in the course of the ongoing argument with Mr Marshall’s companions. There is no dispute that Mr Khamis was correct in his identification of Mr Marshall as having spat at him.

20. The plaintiff admitted that he also said to Mr Alhikrey and Mr Khamis, “Fuck off you pathetic cunt” and “You’re a fat, bald, pathetic cunt”, although the audio-visual evidence does not record this.

21. At about the same time, Mr Moran came running from a different part of the Hotel. When he reached the northern edge of the Hotel driveway, he made a radio call to Mr Lockhart-Ross and asked him to come to the driveway “ASAP”.

22. Mr Moran did not stay long. At Mr Khamis’s direction, he pursued a member of Mr Marshall’s group who had run back into the Hotel.

23. When Mr Lockhart-Ross reached the group, Mr Khamis told Mr Lockhart-Ross that he had been spat on. Mr Lockhart-Ross proceeded on the erroneous assumption that the plaintiff had, in fact, spat on Mr Khamis.

24. Mr Khamis and Mr Alhikrey then told Mr Marshall that, if he got up and walked away, they would not charge him with assault. He agreed to do so. Mr Lockhart-Ross told Mr Marshall and the plaintiff to leave the vicinity of the Hotel. Mr Lockhart-Ross, Mr Khamis and Mr Alhikrey turned to walk south, back towards the Hotel. Mr Lockhart-Ross turned and waved the plaintiff and Mr Marshall off. He then went back inside the Hotel. It was now about 7:49pm.

25. The plaintiff, Mr Marshall and others remained on the footpath to the north of the driveway, intending to catch a bus to the city. The plaintiff then returned to the Hotel. His reason for doing so is disputed: the plaintiff says that he realised that he had left his wallet, which contained his Opal card, behind at the Hotel, and that he needed the Opal card to catch the bus and then to get home. The defendants dispute that he ever had such a belief.

26. About a minute and a half later, Mr Khamis saw the plaintiff heading back towards the Hotel and radioed Mr Lockhart-Ross. The plaintiff was alone. Mr Lockhart-Ross intercepted him outside the Hotel. It is agreed that the plaintiff told Mr Lockhart-Ross that he needed to get his wallet. Mr Lockhart-Ross told him to leave the area. According to the plaintiff, Mr Lockhart-Ross’s words were to “fuck off and leave, away from the pub”, pointing to the north. At about this time, Mr Khamis joined them, followed by another of Mr Marshall’s friends, who had been in the group to the north of the driveway. He arrived with his hands in the air in a gesture of surrender. Mr Moran, and then some other companions of the plaintiff, who had remained at the Hotel, also joined them on the footpath. By 7:51pm there was a group of about seven outside the Hotel, including the plaintiff, Mr Lockhart-Ross, Mr Moran and Mr Khamis.

27. Some of the group can be seen arguing in the CCTV footage. That footage shows the plaintiff gesturing towards Mr Moran and Mr Lockhart-Ross with open palms and pointing towards the area of the Hotel where he had been sitting. Mr Lockhart-Ross then accused the plaintiff of having spat on Mr Khamis. He told the plaintiff to move on and that he was calling the police. The plaintiff again said he wished to retrieve his wallet. If he had not already started directing foul and abusive language to the Hotel representatives, he certainly did so at this point. Although he did not volunteer this in his evidence in chief, he did not deny, or prevaricate with respect to, his use of that language in cross-examination. In his words, he was directing the “same energy” towards the Hotel representatives as he perceived had been directed towards him. He felt aggrieved because he felt he had been wrongly excluded from the Hotel when he was not the person who had spat on Mr Khamis.

28. Mr Khamis, at 7:51:10pm, moved close to the plaintiff, who was standing with his back to the Highway, and pointed to the north. He advanced on the plaintiff, who put his hands on Mr Khamis’s chest while Mr Khamis continued to advance on him, driving him backwards towards the Highway. Mr Khamis appeared oblivious to the risk he was creating in driving the plaintiff backwards towards the Highway.

29. Mr Moran then approached Mr Khamis and the plaintiff from Mr Khamis’s left, which resulted in the plaintiff stepping and then skipping, then twirling to the north, away from the roadway and away from Mr Khamis and Mr Moran. The plaintiff’s hands were raised, also in a gesture of surrender. Mr Moran described the plaintiff as agitated at this point, with his face flushed, pupils dilated and fists clenched. To the extent the CCTV footage showed these events, there was no evidence of the plaintiff clenching his fists, although a hedge obscured the hands of the parties. He did not raise his arms. At no stage, however, was his observable body language consistent with Mr Moran’s description.

30. Mr Khamis and Mr Moran, side by side, then advanced on the plaintiff, walking him backwards north along the footpath. The plaintiff pushed Mr Khamis as Mr Khamis and Mr Moran continued to move towards him and he continued to move backwards. Mr Khamis then retreated a few metres briefly, leaving Mr Moran alone face to face with the plaintiff. Mr Khamis then returned and, by 7:52pm, he retreated again while he and the plaintiff continued to argue, clapping at each other sarcastically from a distance.

31. By this time, Mr Lockhart-Ross had removed his mobile phone from his pocket, in order to call the police. He was still about in line with the central alcove, several metres away from the plaintiff and Mr Moran, when he appears to have initiated that call.

32. Mr Moran then took a step back from the plaintiff and removed his own mobile phone from his pocket to take a photograph of the plaintiff. Meanwhile, the plaintiff was gesturing to Mr Moran with an open palm. He did not move forward into the space between them that Mr Moran had created. Mr Moran says that the plaintiff was threatening him at this point, saying, “I’m going to kick your fucking head in”. Curiously, this alleged threat was in almost identical terms as that made by someone else at the Greengate Road entrance, when the plaintiff was not present.

33. The plaintiff did not move from where he was standing. Mr Moran appeared to saunter up to him so that they were face to face, separated by perhaps 50cm or less. According to the plaintiff, at this point he believed he was “going to be attacked”.

34. The plaintiff placed his left hand on Mr Moran’s chest and pushed, as he half turned away from him. The effect of this contact was to create space between them and to impede Mr Moran from advancing further on the plaintiff. Mr Moran took a step back. The plaintiff had travelled perhaps one or two steps away from him before Mr Moran moved forward sharply and pushed the plaintiff violently and with considerable force. According to the video evidence, the plaintiff seems to have been pushed back by more than a metre and a half. Two passers-by were near to the plaintiff when Mr Moran pushed him, but Mr Moran did not appear to take their presence into account when he did so. Mr Moran again told the plaintiff to leave the area. In his evidence, he stated that he pushed the plaintiff because he was fearful that the plaintiff “would have another go” at him.

35. The plaintiff lurched backwards, then forward again before standing upright. The plaintiff steadied himself, standing flat-footed, his feet apart but in line with each other. His arms were by his sides and he did not raise them in either a defensive or offensive pose. He was still, according to the video evidence, more than a metre and a half away from Mr Moran.

36. On behalf of the plaintiff, this was characterised as him recovering his balance. On behalf of the defendants, this was characterised as “squaring up” to Mr Moran, whereupon it was alleged that both Mr Moran and Mr Lockhart-Ross apprehended that the plaintiff was about to strike, or at least make physical contact with, Mr Moran.

37. The plaintiff and Mr Moran had been facing each other on the footpath, standing parallel to the Highway, about a metre and a half apart for less than two seconds. Mr Lockhart-Ross, who had been standing between them and the Highway, holding his phone to his right ear, stepped forward, threw his right arm around the plaintiff’s neck, stretched his right leg behind him and swept his arm around the plaintiff in a swinging arc movement that forcefully knocked the plaintiff down sideways with Mr Lockhart-Ross falling on top of him. The plaintiff fell perpendicular to the Highway and his head struck the concrete footpath. He did not see it coming.

38. Mr Lockhart-Ross then stood up, whereupon Mr Khamis and Mr Moran immediately fell on top of the plaintiff. They did so without any direction from Mr Lockhart-Ross to that effect. Mr Lockhart-Ross and Mr Alhikrey stood over them. There was no further physical contact between Mr Lockhart-Ross and the plaintiff. Mr Khamis lay on the plaintiff’s torso with a forearm across his neck and his left hand pushing downwards on the plaintiff’s head. Meanwhile, Mr Moran knelt upon the plaintiff’s legs. Mr Khamis shouted at the plaintiff “You’re not getting up. You’re detained.”

4. Mr Lockhart-Ross resumed his phone call with the police while remaining nearby to the three men on the ground.

5. The plaintiff was restrained by Mr Khamis and Mr Moran for about 10 minutes until the police arrived and handcuffed the plaintiff. While Mr Lockhart-Ross did not direct Mr Moran and Mr Khamis to physically restrain the plaintiff, he accepted that he did not direct Mr Khamis to remove his hand from the plaintiff’s face or give any other direction to Mr Khamis in relation to the plaintiff while he was on the ground. Mr Lockhart-Ross further accepted that, as Licensee, he could have done so, given Mr Khamis’s position as one of the Hotel’s security guards.

6. While on the ground, the plaintiff continued to direct verbal abuse towards Mr Khamis accusing him of flopping on him “like a gay cunt”.

7. When the police arrived, the plaintiff protested that he had been wrongly accused of spitting at the security guards, and that the CCTV footage would prove that he was innocent.

8. The police took statements, including from Mr Moran and Mr Lockhart-Ross. The statements are significant in that they comprise a contemporaneous account, as told to the police, by several witnesses of the events of that evening.

9. In Mr Lockhart-Ross’s statement, he refers to a “young male wearing a VB cap [the plaintiff] yelling abuse” with respect to the first incident north of the driveway. He describes the plaintiff’s subsequent behaviour as becoming aggressive, as a result of which he called the police. He goes on to say that after Mr Moran directed him to move on, the plaintiff “pushed Nathan to the chest. I was still on the phone and took him to the ground”. He does not mention any verbal threats of violence by the plaintiff.

10. In his statement, Mr Moran refers to the “man in the VB cap abusing security when he came back outside”, who then “started to abuse me”. He refers to the plaintiff pushing him to the chest with his left hand, causing him to step back. His statement also does not refer to any threats of violence.

11. In his statement, Mr Khamis describes the plaintiff as “laughing and carrying on, calling us names”. He also does not refer to any threats, although he does state that the plaintiff “lunged” at the duty manager and pushed him. This was not borne out by the video evidence.

12. At about 8:04pm, while he was still on the ground, the plaintiff was asked by the police to show identification, whereupon he produced his wallet from his left front trouser pocket, having first tried the pocket on his right side. He contends, and the defendants deny, that one of his friends must have passed his wallet to him while he was on the ground.

13. The plaintiff was subsequently charged with assault, however, those charges were, in the plaintiff’s words, “dropped”, although the particulars of the charges were not in evidence.

Matters in dispute

49. In their written submissions, the defendants identify seven questions of fact, which the plaintiff broadly accepts, as setting out the parameters of the factual dispute between the parties. Those questions are:

1. The extent of the plaintiff’s abuse when to the north of the driveway;

2. The truthfulness of the plaintiff’s stated reasons for returning to the Hotel;

3. Whether the assault pleaded against Mr Lockhart-Ross occurred;

4. The nature and extent of the physical contact between Mr Khamis and the plaintiff between 7:51:00pm and 7:51:46pm, according to the timestamp on Exhibit P2;

5. Whether the assault alleged against Mr Moran, as pleaded against Marhop, occurred;

6. What the plaintiff was saying and doing between 7:51:47pm and the battery or “take down” by Mr Lockhart-Ross; and

7. Whether the plaintiff was handed his wallet while he was restrained on the footpath.

The extent of the plaintiff’s abuse when to the north of the driveway

50. As the plaintiff has abandoned any claim for aggravated or exemplary damages, the extent of his use of vulgar and abusive language at this point is of little, if any, direct relevance to any fact in issue. Both parties appear to acknowledge this in their written submissions.

51. The defendants, however, contend that the plaintiff has understated the extent of his abusive conduct when north of the driveway. Accordingly, they submit, he ought be treated as an unreliable witness and none of his evidence ought be accepted unless it is corroborated or against his interest. They rely on the audio-visual recording by one of the plaintiff’s friends, and the evidence of Mr Lockhart-Ross, Mr Alhikrey and Mr Khamis.

52. I do not accept that the plaintiff has understated his evidence in this regard. Still less do I accept that this would be a basis to reject all of the plaintiff’s evidence, as the defendants contend. The plaintiff admitted his abusive language, as set out in paragraph 20 above, even though the audio-visual evidence did not corroborate it.

53. Mr Alhikrey gave evidence that the plaintiff pushed him and was swearing, “get the fuck off my mate. Get the fuck off him”. The audio-visual evidence establishes that someone was indeed shouting out, “Get off him mate, get the fuck off him”. The video shows that, on his arrival, the plaintiff was calm and solicitous of the wellbeing of Mr Marshall, then lying on the ground half-naked with his hoodie around his wrists.

54. The first physical contact with the plaintiff and, it seems, the point at which the demeanour of the plaintiff likely changed, was when Mr Alhikrey pushed the plaintiff while he was trying to help Mr Marshall up. I do not accept Mr Alhikrey’s evidence that the plaintiff initiated contact with him by pushing him.

55. For reasons set out at paragraphs 72 to 75 below, I found Mr Khamis’s evidence to be of practically no use. I accept, though, that he was genuinely and justifiably upset by the conduct of Mr Marshall, who had spat at him. He was wrong, however, when he accused the plaintiff of spitting at him. That accusation informed the conduct of Mr Lockhart-Ross, who accepted it and immediately treated the plaintiff as if it were true.

56. As for Mr Lockhart-Ross, I deal with questions of his credit below.

The truthfulness of the plaintiff’s stated reasons for returning to the Hotel; whether the plaintiff’s wallet was handed to him while restrained on the footpath

57. The plaintiff agreed in his evidence that if he did not need to retrieve his wallet from the table in the alcove, he would have had no reason to remain in the vicinity of the Hotel.

58. As set out at paragraph 25 above, Mr Lockhart-Ross accepted that, when the plaintiff returned to the Hotel after the events that had occurred to the north of the driveway, the plaintiff said that he wanted to retrieve his wallet.

59. The defendants say that this reason was untruthful. They say not only that the plaintiff had his wallet on him, but that he knew this to be so.

60. As indicated above, according to the video evidence, the plaintiff had his wallet on him when he was asked by the police for identification at about 8:04pm. The plaintiff gave evidence that one of his friends must have passed his wallet to him between the time that he returned to the Hotel and the arrival of the police. He did not have any recollection of any of his friends doing so. When the relevant video footage was played to him in court, so that he could identify the moment at which the wallet was passed to him, he could not identify that moment with any confidence.

61. I was not satisfied that the video evidence showed anyone passing Mr Mansour’s wallet to him, even though he was in shot for the whole of the period between his return to the Hotel and the arrival of the police. I am satisfied that this did not happen. It follows, therefore, that the plaintiff had his wallet on him when he returned to the Hotel and his stated reason for returning was incorrect.

62. It does not follow, however, that the plaintiff was dishonest when he told Mr Lockhart-Ross that he only returned to retrieve his wallet. Mr Lockhart-Ross gave evidence that one of the plaintiff’s friends told him shortly after he returned to the Hotel that he had both his wallet and his vape pen. I accept this evidence as it accords both with the probabilities and the nature of the interaction recorded in the (silent) CCTV footage. Therefore, while I accept that the plaintiff returned to the Hotel believing he needed to retrieve his wallet, he became aware by the time of the alleged assaults, battery and false imprisonment that he had his wallet on him.

Whether the assault pleaded against Mr Lockhart-Ross occurred

63. At paragraphs 43 and 44 of the Amended Statement of Claim, the plaintiff makes the following allegations:

43.   The Second Defendant falsely and/or mistakenly accused the Plaintiff of having spat on security and having been told to leave.

44.   The Second Defendant did so in such a manner as to cause the Plaintiff to have an immediate and continued apprehension of being subject to forcible physical contact. In doing so the Second Defendant committed an assault on the Plaintiff.

64. The particulars to paragraph 44 of the Amended Statement of Claim refer to Mr Lockhart-Ross repeatedly approaching the plaintiff in an aggressive and threatening manner, entering his personal space, standing over him, scowling with tense body posture, pointing gestures, clenched fists and speaking in a loud and threatening tone. The plaintiff alleges that these actions and mannerisms were intended to intimidate or cause fear of forcible physical contact, to which apprehension or fear the plaintiff did not consent.

65. The tort of assault is directed to the apprehension of contact. Assault is an intentional offer of force or violence to the person of another, who reasonably believes that the threat will be carried out forthwith. The menace must be accompanied by an intention to raise in the mind of the person threatened an apprehension that violence is about to be committed. It is committed when a defendant commits an act which causes a plaintiff immediately to apprehend contact with his or her person. In Rixon v Star City Pty Ltd (2001) 53 NSWLR 98, Sheller JA stated:

56 A traditional definition of assault is “an overt act indicating an immediate intention to commit a battery, coupled with the capacity of carrying that intention into effect”; see Clerk & Lindsell at 590 [12–12]. The irrelevance of the intention to carry the battery into effect is demonstrated by the act of presenting an unloaded firearm in such circumstances that if it had been loaded its discharge would have been likely to cause injury. Such an act is an assault unless the person at whom it is pointed knows that it is empty: see generally Clerk & Lindsell at 590 [12–13].

57 According to J G Fleming, Law of Torts, 9th ed (1998) Sydney, LBC Information Services, at 31–32:

“Assault consists in intentionally creating in another person an apprehension of imminent harmful or offensive contact. … there may be an assault without a battery if the threat to inflict unlawful force is not in fact carried out. … Since the gist of assault lies in the apprehension of impending contact, the effect on the victim’s mind created by the threat is the crux, not whether the defendant actually had the intention or the means to follow it up. The intent required for the tort of assault is the desire to arouse apprehension of physical contact, not necessarily to inflict actual harm.”

58 Proof of assault requires proof of an intention to create in another person an apprehension of imminent harmful or offensive contact: see, for example, Hall v Fonceca [1983] WAR 309. If the assault lies in creating an apprehension of impending contact, proof of the assault does not require proof of an intention to follow it up or carry it through.

66. The allegation against Mr Lockhart-Ross of an assault by him relates to the period between the plaintiff’s return to the Hotel and the battery (as the plaintiff characterises it) or take down (as the defendants do). Mr Lockhart-Ross accepts that he accused the plaintiff of having spat on security and that this was not true. He accepts that he told the plaintiff to leave the vicinity of the Hotel.

67. The assault allegation against Mr Lockhart-Ross is not confined to his use of language, however, but his use of language in combination with his physical acts and demeanour in the context of the events of 11 June 2021.

68. The plaintiff’s evidence in chief was as follows:

When you returned, in a southerly direction along the footpath, were you greeted by a man in a white shirt [Mr Lockhart-Ross]?

A. I was. Yes.

Q. And did you say something to him?

A. Yes.

Q. What did you say?

A. “I need to get my wallet and then I’m happy to leave. I need my wallet to go home.”

Q. What did he say to you, if anything?

A. He said to fuck off and leave, away from the pub.

Q. Did you respond to that?

A. I did. I said “I need to get my fuckin’ wallet in order to go home, can I please get my wallet?”

Q. And what happened then?

A. That’s when the other security guard [Mr Khamis] came, and at that point, he accused me again of spitting on him, and then Moran followed as well, and surrounded, and they still refused me to get my wallet.

Q. Right. Were further words spoken after that by you or by Mr Moran, or by the man in the white shirt, or by the security guards?

A. Yeah, it was just back and forth, me saying “I need to get my wallet”, them refusing, telling me to fuck off and leave.

Q. At any point during that passage of events, did you make any threat to any of those people, of any violence?

A. No.

Q. Please describe to his Honour what happened then.

A. It was just the same. I kept pleading to get my wallet. They were saying “no”, pointing in the direction northern to go home, and I was still pleading at that point to retrieve my wallet.

Q. You can be seen on the video footage to be walking back from time to time.

A. Yes.

Q. And to be being walked back, if I can put it that way--

A. Yeah.

Q. –by Mr Moran.

A. Yeah.

Q. And one of the security guards.

A. Mm.

Q. As that was occurring, was anything being said to you by either of those men?

A. Yes.

Q. Well, tell us to the best that you can recall, what was being said and how it was being said.

A. They were aggressively shouting at me, telling me to “fuck off, leave”, “go away” and I was still pleading to get my wallet with them. They were aggressively walking towards, shouting.

Q. And how did their approach to you, in that fashion – walking towards you and shouting at you – make you feel?

A. It made me feel threatened that they were going to attack me, push me again.

Q. Why did you feel they were going to do that?

A. The manner in which they were shouting and walking towards, and what I’d seen before with my friend Dominic.

69. The relevant context of the events of 11 June 2021 includes that the plaintiff had not been present during the altercation at the Greengate Road entrance to the Hotel. Without being present at that incident, he observed Mr Marshall being tackled and brought down in the driveway of the Hotel. He saw, when he came to investigate or assist, that Mr Marshall was on the ground, with his hoodie around his arms with the security guards standing over him. When the plaintiff tried to assist Mr Marshall to his feet, he was forcefully pushed away by Mr Alhikrey. Mr Khamis and then Mr Lockhart-Ross wrongly accused the plaintiff of having spat on Mr Khamis and then plaintiff was directed to leave the Hotel, even though he had not spat and was not one of the parties to the Greengate Road entrance incident. When he returned to the vicinity of the Hotel, at that time believing that he had left his wallet on a table in the central alcove, he was not believed and was told that he still had to leave.

70. Even in that context, however, the factual allegations about Mr Lockhart-Ross’s conduct in paragraph 44 of the Amended Statement of Claim and the particulars thereto do not appear to be made out. In my view, the video evidence, particularly Exhibit P2, does not show Mr Lockhart-Ross acting as alleged in paragraph 44 of the Amended Statement of Claim.

71. The first assault is not, therefore, established.

The nature and extent of the physical contact between Mr Khamis and the plaintiff between 7:51:00pm and 7:51:46pm, according to the timestamp on Exhibit P2

72. The parties agree that little turns, for the purpose of resolving the dispute as to the correct characterisation of events, on the factual dispute between the plaintiff and Mr Khamis regarding their physical contact between 7:51:00pm and 7:51:46pm. The plaintiff says, however, that the question ought be determined because it is relevant to the assessment of Mr Khamis’s credit.

73. Mr Khamis was an unimpressive witness. He was combative, defensive and uncooperative and gave evidence which was utterly implausible. For example, he described the plaintiff’s hands as always having been clenched, and when shown video evidence that the plaintiff’s hands were not clenched, he then said that he considered “clenched” and “open” hands to be the same thing.

74. Mr Khamis gave evidence as to the plaintiff’s demeanour, describing him as “screaming” or “like a rage”, “being aggressive”, “wanting to fight”, “wanting to lunge” or “being violent”, which was contradicted by the objective video evidence and not corroborated by the defendants’ other witnesses. In his statement to the police given on 11 June 2021, he does not refer to any threats of violence by the plaintiff against anyone, but he described the plaintiff as having lunged at Mr Moran. This was not true.

75. At the very least, Mr Khamis’s evidence is inaccurate and unreliable. He was genuinely and justifiably upset by having been spat on by Mr Marshall. Other than in that respect, however, I do not accept Mr Khamis’s evidence on any topic unless against the interests of the defendants.

Whether the assault pleaded against Mr Moran occurred

76. In the Amended Statement of Claim, the plaintiff makes the following allegations:

47.   At or about the same time, the Plaintiff was further approached by Nathan MORAN, the operations manager of the Greengate Hotel.

47A.   Nathan Moran was a servant of the First Defendant.

48.   Moran approached the Plaintiff in such a manner as to cause the Plaintiff to have an immediate and continued apprehension of being subject to forcible physical contact. In doing so the First Defendant, by its servant Nathan Moran, committed assault upon the Plaintiff.

77. The particulars to paragraph 48 of the Amended Statement of Claim are:

(a) approaching the Plaintiff in an aggressive and threatening manner

(i)       entering the personal space of the Plaintiff

(ii)      standing over the Plaintiff

(iii)      scowled (sic) facial features

(iii) (sic)   tense body posture

(iv)      pointing gestures

(iv)(sic)   clenched fists

(v)      speaking to the Plaintiff in a loud and threatening tone

(vii) (sic)   threatening to harm the Plaintiff if he did not move away

(viii)      inducing the Plaintiff to ‘have a go’ in participating in a physical altercation

(b)   the actions and mannerisms of Nathan MORAN were intended to intimidate and/or cause fear of forcible physical contact.

(c)   the Plaintiff did not consent to such apprehension or fear

(d)   the Plaintiff repeatedly walked backwards away from Nathan MORAN

(e)   the Plaintiff had to push Nathan MORAN out from his personal space

(f)   the Plaintiff did so in defence of himself

78. The credit of all witnesses on this matter was in issue. Other than Mr Khamis, whose evidence I cannot accept unless against the defendants’ interest, I have considered the evidence of each witness in accordance with the approach of Davies J in The Nominal Defendant v Cordin [2017] NSWCA 6. In that case, his Honour referred to his earlier judgment of Coote v Kelly; Northram v Kelly [2016] NSWSC 1447. In that earlier decision, his Honour collected a number of authorities that provide assistance in dealing with credibility issues and the fallibility of human memory. The approach of Davies J, which I respectfully adopt, is in part set out below:

[165]   In Coote v Kelly; Northam v Kelly [2016] NSWSC 1447 I collected a number of authorities that have provided assistance in dealing with credibility issues and the fallibility of human memory. I recorded these authorities as follows:

[100]   In Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 Lord Pearce discussed credibility. The first two matters he raised dealt with truthfulness, and he then went on to say (at 431):

Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.

[101]   In Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) Leggatt J said:

[15]   An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory.

[16]   While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people's memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.

[17]   Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called 'flashbulb' memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description 'flashbulb' memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness's memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory).

[18]   Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.

[19]   The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.

[20]   Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does or does not say. The statement is made after the witness's memory has been "refreshed" by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.

[21]   It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, such questions disregard the fact that such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth.

[22]   In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.

[102]   In Campbell v Campbell [2015] NSWSC 784 Sackar J said:

[73]   In Watson v Foxman (1995) 49 NSWLR 315 and 319, McLelland CJ in Eq made the following remarks:

…human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

[74]   I made the following observations in Craig v Silverbrook [2013] NSWSC 1687 at [140]-[142]:

[140]   Whilst a trial judge is entitled to make observations relating to the demeanour of certain witnesses, it is a notoriously crude and inaccurate methodology. Its defects have been exposed on numerous occasions.

[141]   In that regard, I am of course mindful of the comments of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [30]-[31]) when they remarked (citations omitted):

[30]   It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Societe d’Avances Commerciales (Societe Anonyme Egyptienne) v Merchants Marine Insurance Co (The “Palitana”):

“... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.”

[31]   Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility…

[142]   In the recent decision of McGraddie v McGraddieand another [2013] UKSC 58; [2013] 1 WLR 2477, the UK Supreme Court emphasised that, especially in cases where a trial judge is faced with a stark choice between irreconcilable accounts, the credibility of the parties’ testimony, and the trial judge’s assessment of the character of witnesses and the manner in which the witnesses give evidence, is of primary importance. Those observations are particularly relevant to the present case. Similar observations have been made in Australian authorities (Fox v Percy at [23]; Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 at [41] per McHugh J and see generally comments in Ritchie’s Uniform Civil Procedure NSW at SCA s 75A.20).

[75]   In Camden v McKenzie [2008] 1 Qd R 39 at [34] Keane JA (as he then was) made the observation that “the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation.” This remark was cited with approval by Leeming JA (with whom Barrett JA and Tobias AJA agreed) in New South Wales v Hunt (2014) 86 NSWLR 226 at [56].

[76]   Hallen J recently set out the relevant principles in Evans and Braddock [2015] NSWSC 249 at [70]-[77]. After referring to Watson v Foxman, his Honour said:

[71] In that case, his Honour was talking of a cause of action founded on s 52 of the Trade Practices Act 1974 (Cth) or s 42 of the Fair Trading Act 1987 (NSW): see the discussion by McDougall J in Harbour Port Consulting v NSW Maritime [2011] NSWSC 813, at [10] - [18]. However, as McLelland CJ in Eq also pointed out, the views apply to all types of litigation.

[72]   I also remember what was said by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56, at [48]:

“When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2).”

[73]   The credibility of a witness and his, or her, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The “Ocean Frost”) [1985] 1 Lloyd’s Rep 1, per Robert Goff LJ, at 57. Also see, In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547, per Black J, at [7].

[74]   A court, in cases involving events which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200, per Jagot J, at [1247]. Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160, per Kenneth Martin J, at [157].

[75] …

[76]   The circumstances of this case, make what was written by Tamberlin J in Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben’s of Australia) (Federal Court of Australia, Tamberlin J, 29 June 1995, unrep), at 122 - 123 (in a passage cited with approval by the High Court when it upheld his Honour’s decision: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599, at [15]) appropriate to remember:

“[Given the lapse of time] between the events and conversations raised in evidence and the hearing of the evidence before me, the only safe course is to place primary emphasis on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence. In circumstances where the events took place so long ago, it must be an exceptional witness whose undocumented testimony can be unreservedly relied on. The witnesses in this case unfortunately did not come within that exceptional class. The discussions referred to in evidence were capable of bearing quite opposed meanings depending on subtle differences of nuance and emphasis, and a proper appreciation of the significance of those matters must necessarily be considerably diminished over such a long period of time.”

[77] Finally, I should mention an article by the former Chief Judge at Common Law, P McClellan entitled “Who Is Telling the Truth? Psychology, Common Sense and the Law” (2006) 80 ALJ 655, in which he wrote, at 665, quoting a passage from the “Guidelines Relating to Recovered Memories” (2000) of the Australian Psychological Society:

“Memory is a constructive and reconstructive process. What is remembered about an event is shaped by how that event was experienced, by conditions prevailing during attempts to remember, and by events occurring between the experience and the attempted remembering. Memories can be altered, deleted and created by events that occur during and after the time of encoding, during the period of storage, and during any attempts at retrieval.”

(Emphasis added).

79. As described above, the video evidence shows that Mr Khamis and Mr Moran continued to advance on the plaintiff northwards in front of the Hotel. Mr Moran clearly moved into the plaintiff’s personal space.

80. The plaintiff's evidence is that he apprehended that he was going to be physically attacked. He was cross-examined extensively. In cross-examination, the plaintiff readily admitted his use of foul and abusive language. He was resolute, however, that he did not make any threats to any of the Hotel personnel. His credit was challenged on the basis that he did not volunteer instances of his own use of abusive language in his evidence in chief. However, this does not of itself establish that his evidence cannot be relied upon.

81. Each of the defendants’ witnesses alleges that the plaintiff made threats, such as “I’m going to kick your fucking head in” and (to Mr Khamis) “I’m half your age but I’ll still kick your fucking head in grandpa”. Mr Moran stated that he was fearful of being assaulted a second time by the plaintiff, the first being the plaintiff’s push to Mr Moran’s chest with his left hand.

82. On balance, I do not accept their evidence.

83. Each of Mr Lockhart-Ross, Mr Moran, Mr Alhikrey and Mr Khamis made statements to the police on the evening of 11 June 2021. Each of them understood the importance of making such a statement, and each of them understood that the statements would be used by the police in consideration of whether to charge the plaintiff with assault. Each of them signed his statement as an accurate record of his evidence. None of them, however, refer to any threats of violence by the plaintiff against Mr Khamis, Mr Moran or anyone else.

84. Mr Moran’s statement to police of 11 June 2021 refers to threats by members of the group at the Greengate Road entrance to the Hotel, but not to threats by the plaintiff. Under cross-examination, Mr Moran initially said that he told the police of threats by the plaintiff and that had not been recorded, but this is contradicted by his signing the police notebook at the time. He later accepted that he might have confused the plaintiff with the group at the Greengate Road entrance, and that he could not recall whether or not he had mentioned those matters to the police. Mr Moran also later suggested that he may have misattributed statements by the plaintiff to the men at the Greengate Road entrance. I do not accept that evidence: it would be most unlikely that when he was giving a statement to the police on the occasion of the arrest of the plaintiff that Mr Moran would attribute statements by the plaintiff to someone else in an earlier incident. He did refer in his statement to having been pushed by the plaintiff, however, which was consistent with the video evidence.

79. Mr Lockhart-Ross, in his statement to the police, described the plaintiff as becoming aggressive but he is not recorded as having said anything about verbal threats. He also referred to the plaintiff as having pushed Mr Moran to the chest whereupon he took the plaintiff to the ground. He said in his evidence that he had informed the police of the threats, but they did not record that information in his statement. He did not resile from this position in his evidence. The first recorded occasion on which Mr Lockhart-Ross made this allegation is in his written statement to his solicitors a year later.

80. I see no reason to doubt the completeness of Mr Lockhart-Ross’s initial statement, as recorded by the police and signed by him on 11 June 2021. I give greater weight to those contemporaneous statements than a statement taken by his own solicitors 12 months later, after the present proceedings had been commenced.

81. The defendants submit that the defendants’ witnesses, Messrs Moran, Lockhart-Ross, Khamis and Alhikrey ought be believed over the plaintiff. Indeed, they submit that there is no proper basis to find that Mr Moran engaged in the conduct said to amount to the assault.

82. I do not agree. The video evidence and contemporaneous statements support the plaintiff’s evidence. I do not accept that Mr Moran was attempting to de-escalate the situation. In my view, only to the extent that Mr Moran supplanted Mr Khamis as the Hotel representative nearest the plaintiff could it be said that his actions were consistent with any de-escalation. It is not, in my view, a de-escalation of the situation to continue to advance on the plaintiff in the manner he did. Rather, he sought to create in the mind of the plaintiff an apprehension of the use of force so that the plaintiff would leave the vicinity of the Hotel. As the plaintiff’s submissions point out, the plaintiff had not made a single move back towards the Hotel entrance during this period.

83. Having considered the witnesses’ oral evidence, their contemporaneous statements to the police and, most critically, the video evidence, I find that the plaintiff neither acted violently towards, nor threatened, Mr Moran or any other of the defendants’ witnesses. Taking all of the above matters into account, I find that Mr Moran did assault the plaintiff.

The first alleged battery by Mr Lockhart-Ross

90. The tort of battery is an act of the defendant which directly, and either intentionally or negligently, causes some offensive physical contact with the person of the plaintiff. Like all suits in trespass, the tort is actionable per se without proof of damage. It is the protection of the right to bodily integrity in itself that is the gist of the action, not the suffering of harm.

91. Although the defendants do not admit that the elements of battery are made out against Mr Lockhart-Ross with respect to his bringing the plaintiff to the ground, there seems to be little room to doubt that, subject to any affirmative defence, his action prima facie constituted an actionable battery of the plaintiff. There was an intentional application of force by the second defendant to the plaintiff, without his consent. As a result of that application of force, the plaintiff was brought to the ground, whereupon his head hit the concrete footpath.

92. The defendants rely on the affirmative defence of necessity. A defendant may justify a battery on the ground that the act was reasonably necessary for the preservation or protection of life and that the plaintiff was at the time unable to consent to the act. A person who has committed a battery may justify the act on the ground that it was committed in the defence of his or her own person and that no more force was used than was reasonably necessary. The justification extends to the use of reasonable force in the defence of persons reasonably believed to be in danger. See State of New South Wales v McMaster; State of New South Wales v Karakizos; State of New South Wales v McMaster [2015] NSWCA 228 at [215].

93. The degree of force which may be used is a question of fact, dependent on all the circumstances: Fontin v Katapodis (1962) 108 CLR 177. The onus of proving that the force used was reasonable in the circumstances and not out of proportion to the danger sought to be avoided lies on the defendant: Pearce v Hallett [1969] SASR 423; McMaster at [222].

94. In Dehn v Attorney-General [1988] 2 NZLR 564, the High Court of New Zealand quoted at 578 the following passages from Fleming, The Law of Torts (6^th Ed. 1983) with approval:

In some circumstances, a person is privileged to invade the interests of another for the purpose of preventing harm either to his own interests or those of others if the threatened harm is substantially equal to or greater than that he intends to inflict. This defence, known as ‘necessity’, involves more obviously than any other of the proceedings a hard choice between competing values and a sacrifice of one to the other.

…

Provided the means taken to avert the threatened harm are reasonably necessary, in the sense that they are acts which in all the circumstances a reasonable man (sic) would do to meet a real and imminent peril, society’s concern in the preservation of human and material resources tips the scales in favour of the privilege. If the emergency is sufficiently great and the good is intended to do is not disproportionate to the harm likely to result, a man may trespass upon the land of another to save himself or his property, [and then other examples are given]. More doubtful is whether necessity could ever justify personal injury. What little authority there is seems to deny such a privilege, at any rate if it would involve serious bodily harm or death. It could be, however, that one who is threatened with very serious injury may subject an innocent stranger to slight harm, disproportionately smaller than any from which he is himself trying to escape.

95. In Dehm, Tipping J expressed the test as requiring the defendant to believe in good faith and on objectively reasonable grounds that the trespass was necessary to preserve human life, to prevent serious physical harm arising to the person of another or to render assistance to another after that person has suffered serious physical harm (at 580).

96. The defendants contend that the defence of necessity is made out because the plaintiff posed an immediate danger or threat to Mr Moran or others (including the plaintiff himself). The defendants rely on the following matters:

1. The abusive words of the plaintiff in the lead up to the battery “revealed a serious level of derangement”.

2. The plaintiff’s physical movements revealed a highly aggressive person.

3. The tone and volume of the plaintiff’s voice revealed him to be in a highly deranged state.

4. The plaintiff’s behaviour revealed a high degree of aggression.

5. The events took place in what was otherwise a family-friendly environment.

6. There were members of the public walking past.

7. The plaintiff was unmoved by the fact that the police were called.

97. I do not accept that the plaintiff was exhibiting a serious level of derangement, that he was in a highly deranged state, or exhibiting a high degree of aggression. I consider this to be a substantial exaggeration. I do not accept the defendants’ witnesses’ characterisation of the plaintiff’s conduct, which is largely contradicted by the video evidence.

98. To be sure, the plaintiff’s vulgar and abusive language would have been offensive and confronting. The Hotel representatives not unreasonably wanted him to leave. I do not accept, however, that his language or his conduct demonstrates that the plaintiff was actually or potentially violent. I do not accept the defendants’ evidence that he made threats of violence and the video evidence does not show that he physically conducted himself in such a way as to cause any reasonable apprehension of violence on his part. I am not satisfied as to the matters at paragraph 96(1) to (4) above.

99. The matters at paragraph 96(5) to (7) above do not add to the defence in the present circumstances. The absence of physical aggression or threats on the part of the plaintiff significantly diminishes the relevance of the matters at (5) and (6). The only risk to passers-by, according to the video evidence, was caused by the conduct of Mr Moran, when he violently pushed the plaintiff prior to the “take down” by Mr Lockhart-Ross.

100. The proximity of the Highway was similarly of little, if any, relevance once the plaintiff was no longer being driven in that direction by Mr Khamis. In the circumstances, it is unsurprising that the plaintiff was unmoved by the fact that the police were called. The plaintiff believed he had nothing to fear from the police: as shown by the police bodycam footage, he told the police he had done nothing wrong and that it was a case of mistaken identity because he was not the person who had spat at Mr Khamis.

101. As a final note, it should be stated that Mr Lockhart-Ross executed an extremely reckless and dangerous manoeuvre on the plaintiff by bringing him to the ground in the way that he did. Mr Lockhart-Ross initially said that he did so in such a way as to minimise the risk of serious injury to the plaintiff, but he appears to have conceded this not to be so in his evidence. I do not, in any event, accept this to be so. It was an unnecessary act of violence.

102. I find that the response of Mr Lockhart-Ross was not reasonable, and this would have been apparent at the time, in light of the true level of danger posed by the plaintiff, which was negligible. Mr Lockhart-Ross’s conduct was completely disproportionate to any reasonable perception of any threat posed by the plaintiff. The plaintiff is lucky that he did not suffer serious injury as a result of Mr Lockhart-Ross’s actions. So is Mr Lockhart-Ross.

103. I find, therefore, that the tort of battery is made out as against Mr Lockhart-Ross and that the defence of necessity is not. As Mr Lockhart-Ross was acting in his capacity as licensee of the Hotel, both he and Marhop are liable for the trespass.

Second battery

104. In the Amended Statement of Claim a second battery is pleaded against Mr Lockhart-Ross. The particulars of that second battery are set out at paragraph 51 of the Amended Statement of Claim as being that Mr Lockhart-Ross held the plaintiff around the head and neck area and let go of the plaintiff. The evidence indicates that Mr Khamis had this continued contact with the plaintiff, but that is not the case that is pleaded.

105. As there was no evidence that Mr Lockhart-Ross made any physical contact with the plaintiff after the initial battery, the pleaded second battery is not made out.

False imprisonment

106. False imprisonment is a direct act of the defendant which confines the plaintiff within an area delimited by the defendant. The law attaches supreme importance to the liberty of the individual and if he or she suffers a wrongful interference with that liberty, it is actionable without proof of special damage. Damages are awarded to vindicate personal liberty rather than as compensation for loss per se: CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514; [2015] HCA 1 at [155]. The gist of the action for false imprisonment is mere imprisonment.

107. False imprisonment is a tort of strict liability and lack of fault is irrelevant to the existence of the wrong: Ruddock v Taylor (2005) 222 CLR 612 at [140]. A plaintiff who proves that his or her imprisonment was caused by the defendant has a prima facie case. At common law it is the defendant who must then show lawful justification for his or her actions. Once the plaintiff shows that the defendant, by a direct act, caused the plaintiff to be imprisoned, the onus shifts to the defendant to negative the case for liability: Ruddock v Taylor at [140].

108. It is a defence to an action for false imprisonment that the restraint was brought about by the defendant’s lawful arrest of the plaintiff. In their Amended Defence, the defendants contend that the restraint of the plaintiff was reasonable in circumstances where:

1. The plaintiff was becoming violent and aggressive and they were concerned that this would cause a breach of the peace and create a risk of injury to the employees of the first defendant, security staff and patrons in view of the proximity of the Pacific Highway; and

2. The plaintiff was behaving in a violent, quarrelsome and disorderly manner and that despite repeated requests he was refusing to leave the vicinity of the Hotel.

109. The defendants further contend that the allegation of false imprisonment fails because:

1. The plaintiff had been refused entry to the Hotel in accordance with s 77(2) of the Liquor Act 2007 (NSW);

2. He had then repeatedly been asked to leave the vicinity of the Hotel;

3. The actions taken by the defendants were necessary to turn the plaintiff out of the Hotel in accordance with s 77(5) of the Liquor Act;

4. The plaintiff’s refusal to leave the vicinity of the Hotel was without reasonable excuse and constituted a breach of s 77(8) of the Liquor Act; and

5. The restraint of the plaintiff to await the arrival of the police was undertaken in accordance with s 100 of the LEPRA.

110. Section 77 of the Liquor Act relevantly provides that:

1. An authorised person may refuse to admit any person who is at the time intoxicated, violent, quarrelsome or disorderly: s 77(2)(a);

2. If a person in respect of whom an authorised person is, under subs (2) or (3), entitled to refuse admission to the licensed premises is on the premises, the person must, on being required so to do by an authorised person, leave the premises: s 77(4);

3. For the purposes of s 77, such reasonable degree of force as may be necessary may be used “to turn a person out of licensed premises”: s 77(5); and

4. A person who has been refused admission to licensed premises in accordance with s 77 must not, without reasonable excuse, remain in the vicinity of the premises: s 77(8).

111. For the purpose of s 77 of the Liquor Act, a licensee, or employee or agent of a licensee, is an “authorised person”, and “vicinity” means any place less than 50 metres from any point on the boundary of the premises: s 77(1). Failure to leave premises if required to do so pursuant to s 77(4), or remaining in the vicinity having been refused admission pursuant to s 77(8), are offences with a maximum penalty of 50 penalty units each.

112. It might be noted that the events of 11 June 2021 did not involve the plaintiff being turned out of the Hotel. Section 77(5), therefore, is not enlivened.

113. Section 100 of the LEPRA relevantly provides:

(1)  A person (other than a police officer) may, without a warrant, arrest a person if—

(a)  the person is in the act of committing an offence under any Act or statutory instrument, or

(b)  the person has just committed any such offence, or

…

(2)  A person who arrests another person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law.

114. An “authorised officer” for the purpose of s 100 is defined in s 3(1) to include a Magistrate. A police officer is not an authorised officer.

115. The defendants say that the plaintiff was in the act of committing an offence under s 77(8) of the Liquor Act and he was therefore lawfully detained under s 100(1)(a) of LEPRA until the police could arrive whereupon he was charged and later that night released on bail. They further say that he had committed assaults against Mr Moran, Mr Lockhart-Ross and/or Mr Khamis within the meaning of s 61 of the Crimes Act 1900 (NSW), thereby engaging s 100(1)(b) of LEPRA, although this last allegation was not expressly pleaded.

116. The plaintiff says that his detention by the defendants was unlawful for the following reasons:

1. The plaintiff had a reasonable excuse to remain in the vicinity of the Hotel, being that he needed to retrieve his wallet or that he at least subjectively believed that he needed to retrieve it;

2. The plaintiff had not committed an assault within the meaning of s 61 of the Crimes Act as he did not assault Mr Moran, Mr Lockhart-Ross or Mr Khamis. Moreover, even if a common assault were found against him, he would have the benefit of the defence of self-defence; and

3. Mr Lockhart-Ross made no attempt to take the plaintiff before an authorised officer.

117. On the evidence, I have found that the plaintiff did not threaten violence or behave in a physically aggressive way. I find, however, that he was quarrelsome. “Quarrelsome" is not defined in the Liquor Act, but the Macquarie Dictionary defines its cognate, “quarrel”, as: “an angry dispute or altercation; a disagreement marked by a break in friendly relations” and “quarrelsome” as “inclined to quarrel”. On the evidence before me, I find that the plaintiff, at the time of the incident on 11 June 2021, was quarrelsome within the meaning of s 77(2)(a) of the Liquor Act.

118. Mr Lockhart-Ross was, therefore, entitled to refuse admission to the plaintiff when he returned to the Hotel. The plaintiff was at least from that point required not to remain in the vicinity of the Hotel without reasonable excuse. He was directed by the Hotel staff and security guards to leave the vicinity of the Hotel. By remaining on the footpath in front of the Hotel, he remained in its vicinity, as defined in s 77(1).

119. The plaintiff contends that he had a reasonable excuse, being that he sought to retrieve his wallet, or at least that he subjectively believed that his wallet was still in the Hotel. I have found that his wallet was in fact on him at the time and not left on a table in the central alcove of the Hotel. I have also found that he became aware of this fact shortly after he returned to the Hotel seeking re-admission. Accordingly, I do not accept that he had a reasonable excuse to remain in the vicinity of the Hotel, particularly after he had been repeatedly directed to leave. The plaintiff, therefore, committed an offence under s 77(8) of the Liquor Act.

120. Section 61 of the Crimes Act provides:

Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.

121. The defendants refer to s 61 in their submissions but no entitlement to arrest the plaintiff on this basis is pleaded in the Amended Defence. Nevertheless, the plaintiff addressed this basis in his submissions and did not take the pleading point.

122. An offence under s 61 of the Crimes Act and s 77(8) of the Liquor Act may be prosecuted on indictment: R v Fisher (2002) 54 NSWLR 467. An offence under s 77(8) of the Liquor Act, however, is a summary offence.

123. An assault within the meaning of s 61 of the Crimes Act is committed when there is an act which intentionally or recklessly causes another person to apprehend immediate and unlawful violence: Knight v R (1988) 35 A Crim R 314. The act must be a hostile one: Fairclough v Whipp [1951] 2 All ER 834. The intended victim need not be put in fear.

124. Section 418(1) of the Crimes Act provides that a person is not criminally responsible for an offence if the person carries out the conduct in self-defence. Relevantly, s 418(2) provides that a person carries out conduct in self-defence if and only if the person believes the conduct is necessary to defend himself and the conduct is a reasonable response in the circumstances as he perceives them.

125. On the evidence before me, I am not satisfied that the plaintiff committed an offence under s 61 of the Crimes Act. I do not accept that the plaintiff made threats of violence. I do not consider that his push to Mr Moran’s chest with his left hand or to Mr Khamis, when Mr Khamis was advancing on him, were sufficient to comprise an offence under s 61.

126. For the power of arrest under s 100 of LEPRA to be exercised lawfully, its exercise must be necessary: Uber BV v Howarth [2017] NSWSC 54 at [137]. The power of arrest is reserved for situations where its exercise is necessary and should only be used as a last resort: Uber BV at [137], quoting Fullerton J in Director of Public Prosecutions (NSW) v Mathers-Hunter (2014) 242 A Crim R 319; [2014] NSWSC 843 at [25]. More is required to satisfy the requirements of s 100 than just the arresting party being satisfied as to the commission of an offence.

121. In Uber BV, Slattery J stated:

[139] Authority has constantly emphasised in relation to provisions such as Crimes Act, s 352 and LEPRA, s 100 that more is required than just the arresting party being satisfied as to the commission of an offence. In Director of Public Prosecutions (NSW) v Carr [2002] 127 A Crim. R. 151; [2002] NSWSC 194 at 159 [at 35] Smart AJ said:

“35.   This Court in its appellate and trial divisions has been emphasising for many years that it is inappropriate for powers of arrest to be used for minor offences where the defendant’s name and address are known, there is no risk of him departing and there is no reason to believe that a summons will not be effective. Arrest is an additional punishment involving deprivation of freedom and frequently ignominy and fear. The consequences of the employment of the power of arrest unnecessarily and inappropriately and instead of issuing a summons are often anger on the part of the person arrested and an escalation of the situation leading to the person resisting arrest and assaulting the police. The pattern in this case is all too familiar. It is time that the statements of this Court were heeded.’”

[140] There are other examples of repetition of this expression of principle. Barr J said, for example, in Director of Public Prosecutions v CAD [2003] NSWSC196 at [7] as follows:

“[7]   The law about the arrest of and the commencement of criminal proceedings against persons, especially children, for minor offences is uncontroversial. Arrest should be reserved for circumstances in which it is clearly necessary: Lake v Dobson Supreme Court of New South Wales, Court of Appeal, 19 December 1980 unreported. It is inappropriate to arrest when service of a summons will suffice: Fleet v District Court [1999] NSWCA 363. It is inappropriate for powers of arrest to be used for minor offences where the defendant’s name and address are known, where there is no risk of his departing and where there is no reason to believe that the summons will not be effective: Daemar v Corporate Affairs Commission Supreme Court of New South Wales, Court of Appeal, 4 September 1990 unreported; Director of Public Prosecutions v Carr [2002] NSWSC 194.”

[141] The requirement of necessity has been stated as part of a “fundamental approach” to the exercise of these powers: see Director of Public Proescutions (NSW) v AM (2006) 161 A Crim R 219; [2006] NSWSC 348 at [21] (Hall J) and Fleet v District Court of NSW [1999] NSWCA 363 at [73] – [74].

[142] DPP v Mathews-Hunter [2014] NSWSC 843 is a useful example of the application of the doctrine of necessity in arrests relevant to the circumstances of this case. A transit officer purported to perform a citizen’s arrest in respect of a graffiti offence. There was no evidence to suggest that if the transport officer obtained and provided the offender’s details and passed them on to police that that would not be an effective way of dealing with the offence. Fullerton J found that the purported citizen’s arrest was therefore unlawful in the circumstances: at [52].

[143] The result in DPP v Mathews-Hunter is consistent with the law’s general control of the exercise of statutory discretionary powers, to ensure their reasonable exercise. “When a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised”: Kruger v The Commonwealth of Australia (1997) 190 CLR 1 at 36; [1997] HCA 27; see also Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [126] (Gummow J) and Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 at [116].

128. The following circumstances appear to be relevant in applying the principles set out in Uber BV. First, the plaintiff could easily be identified: Mr Moran had already taken his photograph, there were many people present who knew his name, the defendants at least knew his name was “Jimmy”, and the CCTV footage could be accessed.

129. Second, there was no reason to believe that the plaintiff would leave before the arrival of the police in order to avoid them: a principal element of the defendants' complaint against the plaintiff was not that he would leave before the police arrived, but that he would not leave when directed to do so, even when told they were en route.

130. Thirdly, I do not accept that the plaintiff posed a danger to himself, passers-by or Hotel staff. Mr Moran posed a greater threat to passers-by when he pushed the plaintiff.

131. Fourthly, there is no reason to infer that a summons would have been ineffective in bringing the plaintiff before the Court, if necessary. The police were already on their way: if they were satisfied that an arrest was justified, they would be in a position to exercise their own discretion on their arrival.

132. On the other hand, to the extent the plaintiff committed an assault, this would be a serious offence, which is a relevant consideration. I consider the summary offence of breach of s 77(8) of the Liquor Act to be less so.

133. Taking each of the above matters into account, I consider on balance that the arrest of the plaintiff by the defendants was unlawful. Arrest is, according to the authorities and fundamental principles of Anglo-Australian jurisprudence, a serious step to take and may only be undertaken when it is clearly necessary. I am not satisfied that it was clearly necessary, or that it would reasonably appear to have been so, in the circumstances.

134. Even if I were to have found that the evidence demonstrated that the plaintiff had committed an assault under s 61 of the Crimes Act, I would still not be satisfied that the arrest of the plaintiff was clearly necessary.

135. There remains the question of whether it was the second defendant, Mr Lockhart-Ross, who falsely imprisoned the plaintiff. The allegation of false imprisonment was not pleaded against Marhop. Mr Lockhart-Ross, after the act of battery by which he brought the plaintiff to the ground, did not make any physical contact with the plaintiff. The plaintiff was held on the ground by Mr Moran and by Mr Khamis, who are not parties. Mr Lockhart-Ross did not direct them to do so, but he conceded that if he directed them to release the plaintiff, they would have done so.

136. The defendants say that the allegation against Mr Lockhart-Ross is essentially that he committed a false imprisonment by omission and that such an allegation was not pleaded. To this end they refer in their submissions to several authorities which establish the proposition that a defendant will not generally be liable for false imprisonment by way of omission unless there is a duty to do so.

137. I do not consider that the plaintiff framed his case as one of omission, and I do not see the facts as consistent with mere omission on Mr Lockhart-Ross’s part. As the plaintiff submitted, the question of liability requires a determination of who was active in promoting and causing the confinement: see David Rolph, Balkin & Davis Law of Torts (6th ed, 2021, LexisNexis) at [3.38]. A person may be liable in false imprisonment either by personally effecting the arrest or, in line with the general principle that whoever instigates another to commit a tort is a joint tortfeasor, by actively promoting the commission of the tort by another.

138. I am satisfied that Mr Lockhart-Ross actively promoted the arrest and imprisonment of the plaintiff in the period prior to the arrival of the police. He brought the plaintiff to the ground so that the plaintiff could be restrained until the arrival of the police. The actions of Mr Moran and Mr Khamis were in line with that intention; the fact that there was no verbal communication between them to this effect between the time that Mr Lockhart-Ross brought the plaintiff to the ground and their physical restraint of him does not derogate from this conclusion. So much is clear from the video footage, which shows that Mr Lockhart-Ross, having brought the plaintiff down, got up as Mr Moran and Mr Khamis fell upon the plaintiff, threw the plaintiff his cap and continued his conversation with the police. The restraint of the plaintiff pending the arrival of the police was the objective that he sought to achieve.

139. I, therefore, find that Mr Lockhart-Ross falsely imprisoned the plaintiff from the period that he brought the plaintiff to the ground until the arrival of the police and that both he and Marhop are liable for the commission of that tort.

Damages

140. The plaintiff eschews any claim for personal injury damages. Similarly, the plaintiff does not press any claim for aggravated or exemplary damages.

141. Damages may be, and commonly are, awarded for assault, battery and false imprisonment, whether or not the plaintiff is injured or suffers loss. Damages are “very much at large”: Louis v Commonwealth (1987) 87 FLR 277. See also, with respect to false imprisonment, Ruddock v Taylor at [140].

142. Compensatory damages in the case of the torts of assault, battery and false imprisonment are assessed on the basis of the harm to the plaintiff’s interest in bodily integrity and liberty. It is unnecessary for the plaintiff to establish economic loss or personal injury in order to recover compensatory damages.

143. The plaintiff gave evidence that he felt scared, powerless and intimidated. I accept that evidence.

Assault

144. On the facts as I have found them, Mr Moran unjustifiably caused the plaintiff to apprehend imminent non-consensual violence. He did so without lawful justification. I consider, in the whole of the circumstances, that damages in the sum of $3,000 would be appropriate compensation and I will order damages in that sum for the assault.

Battery

145. The invasion of the plaintiff’s bodily integrity when thrown to the ground by Mr Lockhart-Ross was significant and humiliating. I consider that damages in the sum of $10,000 would be appropriate compensation and I will order damages in that sum for the battery.

False imprisonment

146. False imprisonment trenches upon not only a person‘s liberty but also on his dignity and reputation, and this is reflected in the calculation of damages: J Fleming, The Law of Torts (8th ed, 1992, LawBook Co) at p 29. Compensatory damages are assessed by reference, inter alia, to the duration of the deprivation of liberty and to the hurt or injury to the plaintiff’s feelings, that is to say, the injury, mental suffering, disgrace and humiliation suffered as a result of the false imprisonment: F Trindade and P Cane, The Law of Torts in Australia (3rd ed, 1999, Oxford University Press) p 302; Goldie v Commonwealth of Australia No 2 [2004] FCA 156; (2004) 81 ALD 422 at [14].

147. An interference, even for a short period, is not a trivial wrong: Watson v Marshall & Cade (1971) 124 CLR 621 at 632. While there is little to be gained by comparing damages awards in different circumstances, in State of New South Wales v Riley [2003] NSWCA 208, false imprisonment of about an hour during which tight handcuffs were applied, resulted in an award of $40,000. In Zaravinos v State of New South Wales (2004) 62 NSWLR 58, however, it was noted that damages are not capable of being related proportionately to the length of time in detention, and the substantial portion of the award must be applied to the initial shock of being arrested: see also Ruddock v Taylor.

148. In this case, the plaintiff was physically restrained on the ground on a public street at about 8:00pm on a Friday evening, close to a social venue where a number of his friends remained, at least those who remained at the table in the central alcove. His face was held to the ground. He did suffer an injury to his head, either by reason of the restraint or more likely by reason of the battery by Mr Lockhart-Ross. Although the period of the restraint was short, the disgrace and humiliation was substantial.

149. I consider, in the whole of the circumstances, that damages in the sum of $15,000 would be appropriate compensation and I will order damages in that sum for the false imprisonment.

Conclusion and orders

150. In the circumstances, I consider compensatory damages in the aggregate sum of $28,000 as appropriate and I will make an order in that sum.

151. I will hear the parties on interest and costs.

152. The orders of the Court, therefore, are:

1. Judgment for the plaintiff against the first defendant for the assault by its employee, Nathan Moran, on the plaintiff in the sum of $3,000.

2. Judgment for the plaintiff against the defendants for the battery of the plaintiff by the second defendant, the employee of the first defendant, in the sum of $10,000.

3. Judgment for the plaintiff against the defendants for the false imprisonment of the plaintiff by the second defendant, the employee of the first defendant, in the sum of $15,000.

4. Interest and costs are reserved.

5. The proceedings are otherwise dismissed.

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Amendments

09 November 2023 - Correction to the details of junior counsel representing the plaintiff.

Decision last updated: 09 November 2023