Maur v Winona Way Pty Ltd T/As Tea Tree Gully Hotel - [2011] SADC 87

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MAUR v WINONA WAY PTY LTD T/AS TEA TREE GULLY HOTEL & ANOR
[2011] SADC 87
Judgment of His Honour Judge Boylan
15 June 2011
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES
Plaintiff seeks damages for personal injury as a result of action of security officer employed by fourth defendant contracted to first defendant.
Held: Plaintiff did not prove that he suffered any serious injury in the way he claimed. Claim for damages dismissed.

MAUR v WINONA WAY PTY LTD T/AS TEA TREE GULLY HOTEL & ANOR
[2011] SADC 87

Mr Stephen Maur claims that he suffered serious injury while a patron at the Tea Tree Gully Hotel when one of its security officers deliberately trod on his foot. He seeks compensation by way of damages, therefore, from both the hotel and from Total Control Agencies Pty Ltd, the company which employed the security staff who worked at the hotel.
Before I could order that the hotel or the security company pay compensation to Mr Maur, he would have to persuade me that it is more likely than not that a security officer deliberately trod on his foot and that, as a result of the security officer’s doing so, he suffered a serious injury. Having heard and considered all of the evidence, I have decided that I cannot order that Mr Maur be paid any damages because he has not persuaded me of those things. I do not accept his evidence about what he says happened to him at the hotel and, even if I did, I still could not award him any damages because he has not proved that he suffered a serious injury.
I do not think that Mr Maur lied to me when he gave his evidence. I think he honestly believes that he suffered a serious injury in the way he described but I think he is wrong about that.
I now give my reasons for deciding that Mr Maur is not entitled to compensation.
Mr Maur’s Evidence
Mr Maur is a 48 year old single man who has an adult daughter. He has been an invalid pensioner for some years because he has a number of health problems, both physical and mental. Over the years he has suffered various physical injuries. He has also had psychiatric problems having been detained at Glenside Hospital on one occasion and having had a fairly lengthy admission to the psychiatric ward at the Queen Elizabeth Hospital on another occasion. Over the years, he has regularly consulted his general practitioner and, for a time, he saw a psychiatrist. He has been treated for depression.
In April 2002, Mr Maur was living at Mansfield Park. On Friday 26 April 2002 he went, alone, to the Tea Tree Gully Hotel, a hotel to which he had never been before. He had had no alcohol or drugs before arriving at the hotel at about 9 o’clock and had none while he was there. He sat, still alone, in the dining area drinking only coffee. At about midnight, he was sitting near to a table with his left leg partly outstretched in front of him and probably a little to his left when a group of security officers came from behind. One of them deliberately “stomped”, to use Mr Maur’s word, on his left foot, causing him great pain – so much so that he went into what he described as “shock and a state of mind”. He complained immediately to the security officers but none of them would own up to having injured him.
Mr Maur’s evidence about what happened next is not clear because he gave me differing accounts about his state of consciousness. First, he said that he remembered that, about half an hour after he had suffered his injury, police officers arrived. But later in his evidence he told me that he was unconscious when police arrived and that he remembered nothing about his dealings with them until he woke up at the Holden Hill Police Station. There, he said, a group of police officers handcuffed his ankles and beat him, causing a serious injury to his knee.
Two days later, he saw his general practitioner, Dr Kiss. I shall come back to Dr Kiss’s report shortly.
Mr Maur claims that, since the incident at the hotel, he has had constant pain in his foot, that the bones in his foot are shattered so that they “manipulate and break down”. He said that, owing to the injuries, he has been unable to work.
Defence Witnesses
The witnesses called by the hotel and the security company gave a different account. The effect of their evidence is that Mr Maur was intoxicated, that he was removed from the hotel by security staff and then tried to get back inside. When he did that, security staff had to grapple with him. His behaviour was such that the police had to be called and Mr Maur was arrested.
Darren Morrison, the manager of the hotel, was on duty on the night of the incident involving Mr Maur. He remembers that incident, although he did not see all of it.
Mr Morrison was alerted that a patron was being removed from the hotel. He went to the front of the hotel where he saw two security officers walking Mr Maur to the front door. Mr Maur was struggling and yelling abuse. Once outside, the security officers let Mr Maur go and Mr Morrison gave instructions that he was not to be allowed to go back into the hotel that night. Shortly afterwards Mr Morrison saw a security officer trying to prevent Mr Maur from re-entering the hotel by a side door. He saw Mr Maur swing a punch at the security officer, who avoided any blow by stepping backwards. Other security staff then took hold of Mr Maur who continued to struggled aggressively. He was put to the ground and held there by three security officers, one of whom held his leg, until Police Constables Clarke and Fricke arrived. On their arrival, security officers released Mr Maur who stood up, yelling. The police handcuffed him.
Mr Morrison saw no untoward behaviour by any security staff.
Senior Constable Clarke told me about Mr Maur’s behaviour after the arrival of the police. When Clarke and Fricke arrived Mr Maur was on the ground struggling violently. One of Mr Maur’s shoes had come off and, after handcuffing him, Clarke retrieved the shoe. The Constables then took Mr Maur to the Holden Hill Police Station. On the way there he sat in the rear of the police car and Clarke sat beside him. Clarke could smell alcohol on Mr Maur’s breath. On account of that smell and Mr Maur’s general behaviour, Senior Constable Clarke, who had then been a police officer for some 17 years, formed the opinion that Mr Maur was moderately affected by alcohol. Senior Constable Clarke also said, emphatically that Mr Maur was not unconscious.
At the Police Station, Clarke presented Mr Maur at the charge counter. Having done so, Clarke did not see any more of Mr Maur that night and could not comment on Mr Maur’s claim that a group of policemen beat him, other than to say that, in his 26 years in the police force, Clarke had not seen prisoners handcuffed by the feet. Clarke did not see Mr Maur assaulted or manhandled in any way at the Holden Hill Police station.
Mr Wolfgang Woehlert is the manager of the R.D. Jones Group of Companies which owned the Tea Tree Gullty Hotel. He gave evidence about R.D. Jones’s contractual arrangements with Total Control Agencies and about the time at which he first became aware that Mr Maur was suing the Tea Tree Gully Hotel for damages. I need not set out his evidence. He produced a document which included an extract from the Log and incident book, a book which contains a record of the incident involving Mr Maur. I was not asked to use the entry as proof of the truth of the contents of the incident report and I have not done so. I was asked to use it to confirm the time at which the incident began, namely, about 1.30 a.m.
The last witness was Mr Mark Rau, a director of Total Control Agencies. He gave evidence about the first time he became aware of the proceedings. For reasons I shall mention later, I do not need to recount his evidence.
Some documents
I heard some evidence about criminal proceedings against Mr Maur in the Magistrates Court and I received a bail agreement from which it appears that Mr Maur was charged with offences of attempting to re-enter licences premises, disorderly behaviour, refusing to state his name and address, and resisting arrest. I have not used any of that evidence in making my findings about what happened at the Tea Tree Gully Hotel. Before turning to those findings I say something about the medical evidence.
No ambulance attended at the hotel and Mr Maur was never admitted to hospital. Two days after the incident, he saw his general practitioner, Dr Gabor Kiss. I received in evidence a letter which Dr Kiss wrote to solicitors in December 2005. In that letter, Dr Kiss reported that Mr Maur had told him that he had been attacked by a hotel security guard at the Tea Tree Gully Hotel who had jumped on his left ankle. He also told Dr Kiss that, while in police custody, police officers had pushed his knee against the edge of a brick wall.
On examination of his left ankle and left knee, Dr Kiss noticed a graze on his left ankle and slightly limited range of motion in that ankle. The left knee was slightly tender. Dr Kiss prescribed ante depression medication and an anti- inflammatory.
On the 8 May 2005 Mr Maur again attended at Dr Kiss’s surgery, still complaining of a sore left knee and left ankle. An x-ray did not show any abnormality. Dr Kiss noted that the left ankle was healing with a full range of motion. Part of the left foot was slightly swollen.
Dr Kiss went on to report to solicitors that Maur returned several times about “manipulation” in his left knee and ankle. As further examination detected nothing new, Dr Kiss referred Mr Maur to Dr Peter Viiret, orthopaedic surgeon. Mr Viiret could not find any specific injuries and found Mr Maur to be “over reacting”.
Owing to Mr Maur’s continued complaints about his left knee and ankle, which showed no abnormality, Dr Kiss suggested that Mr Maur undergo a psychiatric assessment but Mr Maur refused to do so.
Although Mr Maur saw Dr Kiss several further times before Kiss wrote to the solicitors, Dr Kiss could not detect any anatomical abnormality. He said that the soft tissue injuries which he noted in April 2002 usually settle within several weeks.
Dr Kiss’s report is the only medical evidence that Mr Maur put before me.
To prove that he is entitled to compensation, Mr Maur must produce evidence which persuades me that it is more likely than not that his foot was deliberately stomped on and that he suffered an injury as a result of that stomping. I am not so persuaded because I do not think that Mr Maur was a reliable witness. He gave conflicting accounts about his state of consciousness at the time the police arrived at the Tea Tree Gully Hotel and there is no medical evidence at all to support his claim that he has suffered any significant injury to his foot. Further, I do not accept his evidence that he drank no alcohol at the hotel. On that topic, I prefer and accept the evidence of Constable Clarke who impressed me as a forthright and honest witness. I also accept the evidence of Mr Morrison as being accurate and reliable.
I should also mention that none of the security officers present at the hotel were called to give evidence. They cannot easily be found so long after the event. But it does not matter that they were not called: Mr Maur’s case depends upon my finding that one of those officers deliberately trod heavily on his foot and the medical evidence does not support such a claim.
I find that, while being removed from the hotel when intoxicated, Mr Maur suffered some minor soft tissue injury to his foot which resolved fairly soon after the incident. I find that there has been no significant or permanent damage done to him.
Mr Maur’s claim was specifically for damages for injury caused by a deliberate “stomping”. He did not claim compensation on the basis that any of the security officers had been negligent when they removed him from the hotel or prevented him from re-entering. He has not persuaded me that he suffered an injury in the way he claimed nor, indeed, that he suffered any significant injury at all. Therefore, I cannot award him any damages.
A number of points of law were raised at the trial but counsel submitted – quite correctly in my view – that I need not deal with them if Mr Maur’s claim failed on the facts. Accordingly, I say no more about them.
I dismiss Mr Maur’s claim for damages.