McClean v General Service Board of Alcoholics Anonymous Australia - [2003] WADC 228

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: McCLEAN -v- GENERAL SERVICE BOARD OF ALCOHOLICS ANONYMOUS AUSTRALIA [2003] WADC 228

CORAM: KENNEDY DCJ

HEARD: 31 JANUARY & 5 SEPTEMBER 2003

DELIVERED : 3 NOVEMBER 2003

FILE NO/S: CIV 1954 of 2000

BETWEEN: ROBERT MORRIN McCLEAN
Plaintiff
AND
GENERAL SERVICE BOARD OF ALCOHOLICS ANONYMOUS AUSTRALIA
Defendant

Catchwords:

Negligence - Occupier's liability - Vicarious liability - Whether defendant responsible for each alcoholics anonymous meeting - Whether meeting or any office holders negligent

Legislation:

Occupiers' Liability Act 1985

Result:

Claim dismissed

Representation:

Counsel:

Plaintiff: Mr K S Pratt
Defendant: Mr R E Keen

Solicitors:

Plaintiff: D'Angelo & Partners
Defendant: Srdarov Richards Burton

Case(s) referred to in judgment(s):

Sutherland Shire Council v Heyman (1985) 157 CLR 424

Case(s) also cited:

Agar v Hyde (2000) 74 ALJR 1219
Lustre Hosiery Ltd v York (1935) 54 CLR 134
Modbury Triangle v Anzil (2000) 75 ALJR 164
Smith v Leurs (1945) 70 CLR 256
Western Australia v Dale (1996) 15 WAR 464
Wheat v E Lacon & Co Ltd [1966] AC 552

KENNEDY DCJ: On 4 May 1999 at the rear of St Alban's Church, Beaufort Street, Highgate, the plaintiff attended an alcoholics anonymous ("AA") meeting. At the conclusion of the meeting, and whilst allegedly on the defendant's premises, the plaintiff was bitten by a dog, sustaining severe facial injuries. The dog was owned by another person who attended the AA meeting. As a result, the plaintiff sues the defendant in negligence for damages.
By its defence, the defendant denies responsibility for the premises, denies that it occupied or controlled the premises, denies that it was on the defendant's premises that the plaintiff was bitten and denies any negligence or breach of duty by itself, its servants or agents.
At the commencement of the trial, I was advised the quantum of special damages and future medical expenses had been agreed. It was further agreed that all medical records could be tendered rather than call medical evidence.
The plaintiff is a disability pensioner who was born in 1947 and is now 56. In May 1999, he was living in Stirling Street, Highgate. He had recently completed a rehabilitation program with the Salvation Army at Gosnells and shifted into one of their units in Stirling Street which he shared with John (it was agreed that the surnames of the members of AA would not be disclosed). The plaintiff had first attended an AA meeting in 1981 and continued for some years, then dropped out. In 1998, he went to the Salvation Army for detoxification and then to the rehabilitation centre where he attended AA meetings each week.
Once he shifted to Highgate, he went to meetings at St Alban's Church in Mount Lawley. He had attended at least one meeting before 4 May 1999 when this incident occurred.
The meeting is at premises at the rear of the church. Exhibit 5(a) and Exhibit 5(b) are photographs of those premises. It shows a small weatherboard building with a brick structure to one side and it is completely enclosed by a wire fence. In front of the premises and inside the wire fence is a paved area approximately three metres wide.
The normal practice for attendees at the meeting is that a number of them would arrive before the meeting and have a coffee or a cigarette together, and the meeting would then start around 7.30 pm. The meeting takes place with the members sitting around an oblong table. Normally, first names are recorded, but no minutes are kept. There is a chairperson who is appointed by the meeting, by the secretary or by the person who is in charge of that particular meeting. The meeting starts with a preamble stating that they are there to assist each other to cope with alcohol problems, they have a discussion and then finish with the serenity prayer. How that discussion proceeds, who speaks etc. depends upon the particular meeting. The chairperson is simply someone chosen for the night to be the chairperson.
There is no payment but, at the end of the meeting, a hat is passed around and if they can make a contribution, they do, and that is used to pay for the hire of the hall. Some of the individual groups send a percentage of what is collected to the central office in New South Wales and some to the West Australian office.
Each meeting is a group of like‑minded people who are coming together with a common problem with a view to trying to solve that problem or to cope with the problem. There is no formal membership. There is simply a desire to come together, using the AA philosophy. They set their own agenda and procedures and it is the group itself that makes decisions as to what they are going to do, if anything, including making their own decisions as to when they will meet, where they will meet, and what time.
It is his state of belief that someone within the group who has collected the money actually pays the rent.
This meeting was called an "open door meeting" and it is the group that occupies the particular property where the meeting is held for that particular night. The plaintiff agreed that on this particular occasion, he was part of that group.
After the meeting, it is common practice for the majority of the members to move out onto the paved area and have a cup of tea or coffee and a cigarette together. This is generally considered to be part of the meeting, in the sense that it always takes place.
When the plaintiff came out, he was standing in the paved area and there was no dog in the vicinity at all. While he knew Bill fairly well, he did not know Bill even had a dog. Bill then brought the dog inside the gate on a leash. Prior to this, the plaintiff was unaware that the dog had been anywhere near the meeting and he certainly had not heard the dog during the course of the meeting, nor had he seen it before that time.
The plaintiff walked up to Bill, he put his hand out to the dog to let it smell him because that is what he was taught to do and it seemed all right. After a short period of time, he knelt down to the dog to be non‑confrontational, and the dog immediately lunged for him and bit him and took half his left nostril off and he was cut on his top lip. Initially, there was no pain, but he discovered a lot of blood on his handkerchief and he felt that the skin was a flap.
The plaintiff said that up to that point, the dog was behaving itself quite properly and there was nothing about it that would suggest it was dangerous.
The plaintiff was taken to hospital by ambulance where he remained for a few days. When he was eventually released, he went back to his home in Highgate which he shared with John.
On Saturday morning, the person who started that group of AA, Patrick, came to see him. When the plaintiff did the rehabilitation course, he shifted to the Salvation Army's half‑way house, "Bridge House" and, initially, people do not leave Bridge House unescorted. Patrick would come around and escorted people to the meeting.
On the Saturday, John was also present when Patrick visited. Patrick said, "I knew I shouldn't have allowed him to bring the dog." The plaintiff then asked why, and Patrick said, "Because it has been discussed before what the dog has done." There was no further discussion about the matter. John gave evidence that Patrick had come to see the plaintiff and while they were having a cup of coffee, Patrick said, "I knew he shouldn't have had that dog there." or something like, "I knew I should have done something about the dog." Patrick had no memory of it but, since he had not been asked to recall the matter until about three years after the incident, that is hardly surprising.
Five people who had attended meetings at St Alban's gave evidence - Neville, Barry, John (who was not there on this particular night), Patrick and Lauren.
As to the dog, Neville said that before this incident, Bill had come to the meeting but he could not remember if he had brought the dog with him. On the evening of 4 May 1999, the dog was with him but it had a muzzle on and was on a lead and before the meeting was started, the dog was tied to a swing set inside the fence but outside the building. After the meeting finished, which was about 9 pm, Neville went outside to have a cigarette and there were a number of people standing around doing the same. Bill went and got the dog and took the muzzle off and the next thing Neville saw was that the dog had bitten the plaintiff.
Barry also knew the dog and knew the owner who had been in Bridge House at one time. He saw the dog bite the plaintiff but, prior to that, a couple of people had patted the dog without any problem and the dog gave no warning that it was about to bite the plaintiff.
Patrick said that his memory of the whole night was vague but he did recall that that was the first time he had seen the dog and that it was on a leash. The dog did not come into the meeting because he told Bill to tie it up near a tree for safety reasons because it was a fairly large dog. He did know that Bill went out to check on the dog from time to time because he told Bill to do that. He had heard later that the plaintiff was bitten by the dog but he was not there at the time.
Lauren had seen Bill arrive with the dog the week before this incident and had asked him if he thought it was a good idea to have the dog there. She had said this because it was a big dog, there were 30 people and it was a small hall. Bill's response was that the dog went wherever he went, that he would keep the dog outside and the following week he would bring a muzzle. She thought that that must relate to the dog barking and did not even think about the dog biting. Bill never said anything adverse about the dog's temperament. There was no trouble with the dog at that meeting.
The following meeting, Bill came with the dog on a lead and waved a muzzle in her direction but the dog stayed outside during the meeting, nothing happened and the meeting ended. Afterwards, outside, Bill was there, the dog was on a lead and appeared to be fine. The plaintiff was talking to him and reached to pat the dog and it bit him with no warning, no growling, nothing happened before the dog bit the plaintiff.
So far as the structure of the defendant is concerned, the defence called Stephen Charles Townsend.
Mr Townsend is a trustee and director of the defendant which is a company limited by guarantee and the Board is located in Sydney.
His function is very part‑time. The Board meets once a month and, in Sydney, there are a couple of full‑time office workers whose role it is to purchase and despatch books at the direction of the Board. The literature is sent around Australia. Most of their literature is imported from the United States.
AA is a completely unique organisation that has been operating since 1935. It has 12 traditions which just about every group observes quite strictly, but there is no enforcement.
If a graph were drawn of the organisation, it would be like an upside down pyramid with the AA groups at the top and the Board at the point.
The AA groups are informal groups of members who identify as alcoholics. Anyone can start a group whenever, wherever and however they like. If somebody says they are a member of the group, then they are. Most groups meet weekly and if, for example, 20 people attend, probably five or six of them are members of that particular group and the rest would be members of other groups or perhaps not even people who align themselves with any group.
Anyone who wants to start a group can do so and anyone who wants to have a meeting at a particular time can arrange that meeting at that particular time.
Generally, if a person wanted to set up an AA group, they would simply ask other people who are like‑minded to come along. They would normally find out how to run the meeting from seeing how other groups work. If the group wanted to know the principles of AA, they would, by that time, have been in contact with the main AA text, which is called "Alcoholics Anonymous" and that is what AA is based on. There are other books such as "12 Steps" and "12 Traditions", and there are a lot of pamphlets about AA traditions including one on the best way to run a group. These are available from the General Services Office in each State.
The Board in Sydney has no control or say over what the individual groups do or say, and it is very important tradition that the groups are autonomous. The Board does not lay down any regulations for the way in which groups are to be run, it has no rules, no regulations, no dues, no fees, no membership lists, and yet it thrives.
The point of the defendant is to handle issues such as what books should be imported from the United States, how to facilitate community service announcements, how can they help groups that are having difficulties and arguing amongst themselves, and is there any way they can facilitate them getting on better. They regard themselves as purely a resource for the groups.
It does not need the authority or permission of the defendant to commence a meeting, there is no formal membership of AA. The Board has no power to check out the groups and has no knowledge or input into the conduct of the meetings. The control of the meetings is under the group conscience of the meeting with the members meeting and trying to iron out any issues and achieve a consensus. The meeting appoints a secretary, but the secretary has no control over anyone. The secretary does not report to the defendant.
A meeting can send delegates to an area assembly and the area assembly send delegates to the annual conference of AA. Only about half of the meetings would be involved in this.
At the annual conference they consider issues such as what books should be imported and how many people should be sent to international meetings.
The annual conference of AA selects the Board and the Board members have membership for four years or five years, depending on their circumstances.
The Board and the conference are specifically excluded from controlling, in any way, the groups.
There is no hierarchy at individual meetings. There is usually someone asked to be the secretary and there is usually a treasurer. Anything done as a group like that at St Alban's is done on behalf of the group. It is not done on behalf of the defendant.
He did concede that they ensure people who are secretary or office holder of the group are insured, but not the group. They are insured for some sort of public liability suit against them. They took out the policy years ago and it is renewed every year and is advertised on their website.
It is recommended that groups give 60 per cent of their funds to the central service office, 10 per cent to their area and there are two areas in Western Australia, and 30 per cent to the national office in Sydney. However, there is no requirement for them to do that and only about half the groups in Australia send any money to the national office. Each group does whatever it likes with any surplus money. National office gets remissions from about 36 per cent of the groups in Australia and, at the moment, they seem to have more money than they should have.
So far as the St Alban's group is concerned, they do use the name Alcoholics Anonymous, they follow the traditions and that is all. They are autonomous. They tell the defendant what they will do, not the other way around.
This witness conceded that he answered the defendant's interrogatories, which are Exhibit 6. He said he was asked to answer the interrogatories either from the defendant's solicitors or from the insurance company solicitors. When he said he knew nothing about it, he was told to ring up, find out, and do the best he could and he made enquiries. On a number of occasions, he said that he did not really understand why he was doing it and queried whether he should be doing it, but was told that it was all right, but, looking back, he thinks it was very sloppily handled and he did not even keep notes of discussions that he had had with people.
Contrary to the pleadings, the answers to interrogatories, particularly answer 6, give the impression that the defendant did accept some responsibility for the particular meeting and made no attempt to explain the structure of the defendant or its relationship with a group.
He thinks he called the secretary of the central service office in Perth and that she gave him a contact number for a couple of people in the group. The only name he could remember was Lauren and he has also spoken to her since, but he spoke to a few people and assembled answers to the interrogatories as well as he could.
He was asked about a question where he had said that the dog had been brought to an AA meeting on one occasion prior to 4 May. He said he could not remember who had told him that, but he thought several people had told him.
He further had information that someone in the group had advised him that they had advised Bill not to bring the dog next week or, alternatively, that they had said it was not a good idea for him to bring the dog to the meeting. He did not know whether that was because dogs are a nuisance generally, or whether it was because the dog was dangerous. He did recall that he was told that Bill had said that next time, he would bring a muzzle for the dog.
The witness agreed that it was a common thing after meetings for people to have a coffee and a cigarette together and have discussions, and the coffee is paid for by the members.
The evidence from its members about the St Alban's group was consistent with what Mr Townsend said about groups in general.
Patrick said that when he had opened the St Alban's group in mid‑1996, it was, as are all groups, autonomous. It had a treasurer, a secretary and a person responsible for the coffee. He had held these positions from time to time and, at one stage, was doing all three of them.
In May 1999, he was the treasurer. It was his job to look after the money by counting it and banking it and they had an account called "Open Door". He was the signatory and some other member of the group was also signatory. The money was used for rent and St Alban's was charging $3 a night. It was also used to purchase literature and coffee. The literature was purchased from the General Services Office in Perth.
The St Alban's group never remitted any money to the defendant or the branch in Western Australia and they were not big enough to send delegates to any congress.
Barry had been to the meetings on a number of occasions and knew Patrick. He described Patrick as the backbone of the meeting and Patrick was the one who would suggest that various people did various roles such as being secretary or treasurer. So far as describing Patrick as the backbone of the meeting, he said that Patrick took clients from Bridge House and others to the meeting. While he described Patrick as the founder and the backbone, he agreed that the group was a meeting of people who simply come together for the purpose of that particular meeting.
Neville was secretary on the particular night and had been secretary for a period of time. The role of secretary involves setting up the tables and making sure the room is ready for members when they arrive. Lauren brought the urn which was hers and would set that up to make coffee. Then someone would be selected to chair the meeting, the secretary would usually choose someone for that purpose. There is a payment for the hall but he could not remember who made the payment.
He knew Patrick and said Patrick virtually started the meeting off to benefit people who were in Bridge House. Neville's job was to keep in contact with people in Bridge House, talking to them and walking over to the meeting with them and then walking back with them after the meeting.
This was apparently necessary because, as the witness John said, people who were staying at Bridge House were not allowed to leave the premises after 5 pm unless they were being escorted to an AA meeting and so people had to be collected from there and walked back there.

Neville confirmed that everyone was involved in running the meeting.
Lauren had an association with the St Alban's group for about three years. She was secretary for a while and also treasurer. When she was treasurer, her job was to count the money, bank it and report to the meeting once a month. The money was used to pay rent, buy coffee and biscuits and literature. Any money over may be given to the local office or the defendant but it is up to the group to decide if it wishes to do that and it is not necessary to send money.
She confirmed that she was the person that Mr Townsend contacted in relation to answering the interrogatories and she simply told them what she knew of the situation.

Medical evidence

On the day of the incident, the plaintiff was taken to Royal Perth Hospital by Neville, arriving at about 10 pm and was admitted immediately. The plaintiff had an operation under general anaesthetic that same evening and tissue was replaced on his nose. He did not leave the hospital as was suggested by the defence and, in fact, remained in hospital for 2‑1/2 days. He is supported in this both by Neville and by the hospital notes.
He was in a lot of pain which seemed to get worse as time went on, and he was on a pethidine or morphine drip for 12 to 18 hours.
The plaintiff had the stitches removed and then, on 9 May, there was another incident. It had been raining and as he was walking up the stairs, he slipped over. It was not a heavy fall, but he fell on the side of his face and the graft was torn. This was quite a severe injury to the nose.
The plaintiff agreed, in cross‑examination, that he had been drinking and he was not exactly sober, but he would not have classified himself as being drunk either.
He went to the hospital, ointment was put on his nose, but he did not recall any dressing being put on it. In cross‑examination, the hospital notes were put to him which suggested that he had taken the dressing off while he was at the hospital, that he did not wait for it to be re‑applied and left the department of his own accord. He did return the next day.
The Royal Perth Hospital notes confirm what the plaintiff has said about his initial admission. They are further confirmed that he was again seen on 10 May 1999 and he reported, according to the notes, that he had fallen over whilst intoxicated and lost the tip of his nose. Whoever wrote the report has also recorded, "(Patient) currently intoxicated." Then there is a note of 12 May 1999 that records that the plaintiff is "in better mental state than previous noted. Requested surgery ..."
The plaintiff ended up having three more procedures under general anaesthetic at Royal Perth Hospital. The second one was in August 1999 when they took part of his left ear and grafted it on to the hole in his nose.
Unfortunately, that fell off and he had another procedure in about January 2000. Again, they took a piece off his left ear and put it onto his nose and, on that occasion, he was in hospital for two nights. That was when he had the most pain and the pain actually came from his ears. That is, both of his ears because, originally, they were going to take a graft from the other ear but did not do so.
The final procedure was in September 2000.
There are photographs of the plaintiff but these are taken at an earlier stage. From full face, the plaintiff has no sign of any cosmetic disability. Photographs, Exhibit 1(a) and Exhibit 1(b), show where the mark is on the plaintiff's nose looking at him in profile. Naturally, the scar is nothing like it appears in those photographs which obviously had not healed at that stage.
The plaintiff said the state of his nose now concerned him. It makes him self‑conscious, especially when he is talking to ladies and, in cold weather, his nose hurts.
A plastic surgeon, Mr Wheeler, has recommended a further procedure and the plaintiff would like to undertake that procedure but is unable to do so because of financial constraints. The procedure involves a total reconstruction which includes a bone graft from his hip to support the nose.
The medical evidence, apart from the plaintiff's evidence, consisted of the Royal Perth Hospital notes and two reports by Mr John Wheeler being tendered by consent.
Mr Wheeler reported to the defendant's lawyers on 8 February 2001:
"His present complaint is that he has had four operations and his nose now looks like a beak compared to what it was. He's concerned about the depressed flattened area of the nasal tip and the notching on the left nostril, especially his profile seen from the left side.
On examination he has obvious nasal tip deformity with this most obviously being noticed on the left profile view with a dependent nasal tip with an acute angle at the labiocolumellar junction. In addition to the deformity of the tip there was a notch between the alar globule and the remaining portion of the alar margin. Seen from below there is considerable asymmetry of the nostrils with the normal right nostril being in the shape of an oval compared to the almost circular nostril on the left side. The columellar nasal tip drifts across to the left side. The colour of the graft which has been taken from the ear is of good quality and matches fairly well with the adjacent nasal skin. There is no tip support. He has broadened nasal skeleton in the upper third of the nose and he gives a history of a cricket injury some 20 odd years ago.
I consider he has a moderately severe deformity of the nasal tip which, although nor marked when seen from the anterior aspect, is quite severe when seen from the left side of the patient and also when seen from below. It is not likely to improve without further surgery. Further surgery however will not completely correct the notch in the left nostril margin unless there is complete reconstruction. This would entail provision of nasal tip support probably with a bone graft and open rhinoplasty to correct the depression on the left side of the nose.
With regard to point 5. it is likely that removal of the dressing and leaving the hospital without being attended to by a plastic surgeon that evening may have led to compromising the vascularity of the flap of tissue which apparently was attached to the nostril by only a small narrow pedicle. The risk of infection is likely to have been increased by deferring treatment. Certainly the subsequent fall on 10th May 1999 would have compromised the result and would appear to have led to further damage and in fact loss of the original tissue."

Conclusions

I accept the evidence of all of the witnesses, most of which was uncontradicted. I include in this, acceptance of the evidence that after the incident, Patrick visited the plaintiff and said something to the effect that he (Patrick) knew Bill should not have been allowed to have the dog at the meeting. I am not satisfied that he went on to say "because it has been discussed before what the dog has done". There was no evidence that anyone knew the dog had done anything to anyone before this night.
Before the defendant could be liable in negligence to the plaintiff, it seems to me that the St Alban's group or some office holder at the St Alban's group would need to be liable in negligence to the plaintiff.
Certainly, the owner of the dog owed a duty of care but he has not been sued and, what is more, there is no suggestion that he held any office at this meeting. The office holders were elected for the night and it was referred to as "Patrick's group" because he had started it and was in the practice of walking with people from Bridge House to the meeting and return and was generally a leader but that does not make him responsible for the group.
In any event, I am quite unable to see on the evidence that I have that any of them breached any duty of care if they had a duty of care to the plaintiff. There is no evidence that anyone was aware of any difficulty with the dog at all. It is quite true that the dog was apparently a large dog, that Patrick said to the owner that the dog could not come inside the meeting place and suggested that the dog be tied up, that the owner volunteered to bring a muzzle and the following week indicated that he had a muzzle with him. Immediately before the incident, the dog was perfectly well behaved and was sitting beside the owner and there was nothing to indicate to anyone, including the plaintiff, that the dog was likely to do the plaintiff any harm.
In all those circumstances, there is nothing to indicate that anyone at the meeting, with the possible exception of the owner (who has not been heard from and has not been named in any action), could possibly have been negligent and, therefore, there is no one for whom the defendant could be said to be vicariously liable.
In Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 501 ‑ 502, Deane J said:
"... The common law imposes no prima facie general duty to rescue, safeguard or warn another from or of reasonably foreseeable loss or injury or to take reasonable care to ensure that another does not sustain such loss or injury: cf per Windeyer J, Hargrave v Goldman (1963) 110 CLR 40 at 66. That being so, reasonable foreseeability of a likelihood that such loss or injury will be sustained in the absence of any positive action to avoid it does not of itself suffice to establish such proximity of relationship as will give rise to a prima facie duty on one party to take reasonable care to secure avoidance of a reasonably foreseeable but independently created risk of injury to the other. The categories of case in which such proximity of relationship will be found to exist are properly to be seen as special or 'exceptional': cf per Dixon J, Smith v Leurs (1945) 70 CLR 256 at 262 and Dorset Yacht Co v Home Office [1970] AC 1004 at 1038‑1039, 1045‑1046, 1055, 1060ff. Apart from those cases where the circumstances disclose an assumption of a particular obligation to take such action or of a particular relationship in which such an obligation is implicit, they are largely confined to cases involving reliance by one party upon care being taken by the other in the discharge or performance of statutory powers, duties or functions or of powers, duties or functions arising from or involved in the holding of an office or the possession or occupation of property."
Later, Deane J said (at 507 ‑ 508):
"In any general formulation of the ingredients of a cause of action in negligence which is intended to encompass cases involving mere omission or mere economic loss, 'proximity' of relationship in this broader sense should be seen as a distinct general requirement which must be satisfied before any duty of care to avoid reasonably foreseeable injury will arise: cf Jaensch v Coffey (1984) 155 CLR 504 at 585‑586; Governor of Peabody Donation Fund v Parkinson [1985] AC 210 at 239‑241. In such cases, as Mason J demonstrates in his judgment in this appeal, it is likely that the existence of the requisite element and proximity will reflect, among other things, reliance by the plaintiff upon care being taken by the defendant to avoid or prevent injury, loss or damage to the plaintiff or his property in circumstances where the defendant had induced or encouraged such reliance or (depending upon the particular combination of factors) was or should have been aware of it."
It is quite true that the group had control of the premises during the period of the meeting, but there is no evidence that there was any foreseeable risk to anyone or that the group breached any duty of care.
The group is informal, the office bearers are elected for the night, the evidence is that each group is entirely autonomous and there is no formal membership. It is not necessary for the defendant to know that meetings are being held or to approve of those meetings in any way. Anyone who wishes to say that they are a member of AA is entitled to say that they are a member. The defendant had no knowledge of the meeting, no control over the premises and the activities therein and there was simply no legal connection between the defendant and this particular group.
Whilst the defendant and the group share a similar name and objects, the defendant had no power to make rules for the holding of meetings, the group was entitled to establish and follow its own rules and procedures.
On the evidence I have, there is nothing about any relationship between the defendant and this particular group that would give rise to any vicarious liability by the defendant.
It follows that the plaintiff's claim is dismissed.

Assessment of damages

In the event that I am wrong about the issue of liability, I will assess the quantum of damage the plaintiff would have been entitled to had he established liability in the defendant.
The plaintiff was injured in an unpleasant and frightening incident. He then underwent four separate procedures between September 1999 and August 2000. In the meantime, it was necessary for him to go to the hospital for various dressings.
In the amended defence, it is pleaded:
"6AIf the plaintiff sustained permanent disability as alleged or at all, then such disability arose either in whole or in part by reason of:
(a)The plaintiff's conduct at Royal Perth Hospital on the night of the alleged accident in removing a surgical dressing which had been applied by hospital staff and thereafter leaving the hospital before he had been attended to by a plastic surgeon; and
(b)A subsequent fall on 10 May 1999 which compromised the plaintiff's recovery and in addition, resulted in further damage being sustained."
It is not the fact that on the night of the incident, the plaintiff removed a surgical dressing and left the hospital before he was attended to. The uncontradicted evidence is to the contrary, that is to say, the plaintiff stayed at the hospital and was treated on that night and he has conceded that he had been drinking although he does not concede any significant extent of drinking. He was walking up stairs and he fell. There is nothing to indicate that the plaintiff was in any way negligent in relation to this and he had already been injured which was the cause of the subsequent damage and, accordingly, I am not prepared to find that any disability that he has arose either in whole or in part by reason of either of these matters.
I have described my observation of the cosmetic deficit in the body of the judgment and it is also well described by Mr John Wheeler, the plastic surgeon, in his report which I have also quoted and it is to be noted that Mr Wheeler considered that:
"... he has a moderate deformity of the nasal tip which although not marked when seen from the anterior aspect is quite severe when seen from the left side of the patient and also when seen from below. It is not likely to improve without further surgery. Further surgery however will not completely correct the notch in the left nostril margin unless there is a complete reconstruction."
Taking into account the pain, suffering and inconvenience the plaintiff has already sustained, the cosmetic deficit and the necessity for future surgery, I assess his damages for loss of amenities at $40,000.
I am advised that the special damages have been agreed at $215.80 and the future medical expenses at $5,095. As to that latter figure, it was suggested that some discount be made, however, since the plaintiff was intending to have the operation immediately and since he will not be getting the money unless I am wrong in my assessment of liability, I see no point in discounting the amount.
Accordingly, if the defendant was liable in damages to the plaintiff, the plaintiff would be entitled to damages of $45,310.80.