Nicoll v Dobeson; Nicoll v The Workers Compensation Nominal Insurer (No 3)
[2014] NSWDC 109
•16 July 2014
District Court
New South Wales
Medium Neutral Citation: Nicoll v Dobeson; Nicoll v The Workers Compensation Nominal Insurer (No 3) [2014] NSWDC 109 Hearing dates: 21, 22, 23, 24, 25, 28, 31 October; 1, 11, 12, 13 November 2013; 17, 18, 19, 20, 21 March 2014 Decision date: 16 July 2014 Jurisdiction: Civil Before: P Taylor SC Decision: (1) Judgment in favour of the Club against Ms Nicoll.
(2) Verdict for Ms Nicoll against the Insurer in the sum of $28,610.44.
(3) Note that the verdict sum is less than the agreed payback.
(4) Judgment in favour of the Insurer against Ms Nicoll.
(5) Judgment in favour of Ms Nicoll in the sum of $139,000.44 against Mr Dobeson and Mr Hammond.
(6) Matter to be re-listed on a date convenient to the parties for orders disposing of the cross-claims, and for orders in respect of costs.
(7) Defer entry of these orders under Uniform Civil Procedure Rule 36.11(2) until 30 July 2014.
Catchwords: NEGLIGENCE - personal injury - duty of care - foreseeability - causation - licensed premises - assault - security guard Legislation Cited: Civil Liability Act 2002, s 5B, s 5C, s 5D
Liquor Act 1982, s 5, s103, s 124, s 125Cases Cited: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48
Balesfire Pty Limited v Jamie Adams [2006] NSWCA 112
Collingwood Hotel Pty Ltd v O'Reilly [2007] NSWCA 155
Davis v Nolras Pty Ltd [2005] NSWCA 379
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61
Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; [1986] HCA 1
Sydney Water Corporation v Abramovic [2007] NSWCA 248
Wagstaff v Haslam (2007) 69 NSWLR 1; [2007] NSWCA 28
Wooby v Australian Postal Corporation [2013] NSWCA 183Category: Principal judgment Parties: 2009/339941
2012/281640
Kathaleen Nicoll (plaintiff)
Dean Dobeson (first defendant/first cross-defendant)
Robert Hammond (second defendant/second cross-defendant)
Sussex Inlet RSL Club Ltd (third defendant/cross-claimant)
Kathaleen Nicoll (plaintiff)
The Workers Compensation Nominal Insurer (defendant/cross-claimant)
Sussex Inlet RSL Club Ltd (first cross-defendant)
Dean Dobeson (second cross-defendant)
Robert Hammond (third cross-defendant)Representation: Mr H Marshall SC with Mr G Smith (plaintiff)
Mr J Wilson (The Workers Compensation Nominal Insurer)
Mr R Sheldon SC (Sussex Inlet RSL Club Ltd)
Lough & Wells (plaintiff)
TurksLegal (The Workers Compensation Nominal Insurer)
Lee and Lyons Lawyers (Sussex Inlet RSL Club Ltd)
File Number(s): 2009/339941; 2012/281640 Publication restriction: None
Judgment
A. Introduction
Kathaleen Nicoll was assaulted by Dean Dobeson and Robert Hammond whilst working as a security guard at the Sussex Inlet RSL Club ("the Club"). Mr Dobeson and Mr Hammond were members and patrons of the Club. Ms Nicoll sues Mr Dobeson, Mr Hammond, the Club, and the insurer of Men in Black Protection Services Pty Ltd ("Men in Black" or "MIB"), her employer. The insurer admitted liability. Mr Dobeson and Mr Hammond had earlier been convicted in respect of the assault and did not participate as parties in the proceedings, so only the Club resisted liability.
B. The incident
During the evening of 7 October 2006 Mr Dobeson and Mr Hammond entered the Club, walked past Nicole Farrow, the receptionist in the foyer, and proceeded to a table near the bar. Ms Farrow observed that Mr Dobeson and Mr Hammond did not appear to be intoxicated. Mr Hammond purchased two schooners of beer and handed one to Mr Dobeson. Soon Mr Dobeson noticed Bruce Napper, at that time a friend or partner of Mr Dobeson's ex-wife and the soccer coach of his daughter. Mr Dobeson gave evidence that he was upset about the treatment of his daughter by Mr Napper, but the relationship between Mr Napper and Mr Dobeson's ex-wife also appeared to be a primary source of Mr Dobeson's discontent.
Mr Dobeson walked across to Mr Napper, grabbed him by the back of the neck and was abusive and threatening. He was not so loud as to immediately draw the attention of staff or security at the Club.
At the time Ms Nicoll was working at the Club with another Men in Black security guard, Paul Serbatoia. Mr Napper complained of the assault to Mr Serbatoia who informed Ms Nicoll and the Club's Duty Manager, Sharon Kabelka.
Ms Kabelka confirmed the allegations with Mr Napper and then confronted Mr Dobeson and Mr Hammond in the presence of Ms Nicoll and Mr Serbatoia. Ms Kabelka spoke to Mr Dobeson about the incident. She noticed that Mr Dobeson was intoxicated and told him to finish his drink and leave. Ms Kabelka then departed to view the CCTV footage of the incident while Ms Nicoll and Mr Serbatoia, on Ms Kabelka's instructions, remained with Mr Dobeson. A director of the Club, Bruce Wood, who was also nearby, encouraged Mr Dobeson and Mr Hammond to leave the Club.
Mr Dobeson and Mr Hammond were drinking their beers slowly to delay their departure. Ms Kabelka returned having viewed the footage of the assault on Mr Napper. She told Mr Dobeson to leave immediately. Ms Nicoll and Mr Serbatoia commenced to escort Mr Dobeson out of the Club.
Mr Dobeson and Mr Hammond became louder and aggressive, pushing each other whilst walking slowly to the exit with Ms Nicoll beside them. Mr Wood and Mr Serbatoia accompanied them.
Before Ms Nicoll reached the entrance doors to the Club, she was grabbed on the buttocks. She protested. Mr Dobeson subsequently grabbed her on the shoulder and breast as she was escorting him outside. She was verbally abused, Mr Dobeson and Mr Hammond made offensive and threatening comments to her which she described as "threatening...swearing and being loud and obnoxious" and "abusive language and vulgar comments".
At about the time the group exited the Club, or shortly thereafter, Mr Wood and Mr Serbatoia were not present. Mr Serbatoia's absence appeared to be contrary to the security protocol of Men in Black. During the time outside Mr Dobeson put his hand or hands around the neck of Ms Nicoll. Either Mr Dobeson or Mr Hammond tried to kiss her. Then they left.
Mr Dobeson and Mr Hammond walked toward another licensed establishment known as the Tavern. Men in Black were also retained to provide security services there. Ms Nicoll left the Club and picked up a two-way radio from her supervisor, Noel Hewitt, who was working at the Tavern. She returned to the Club. Mr Dobeson and Mr Hammond had also returned and were seeking to use the courtesy bus at the Club. Ms Nicoll was instructed to remove them from the bus.
The common practice at the Club was that anyone asked to leave the Club could not use the courtesy bus. Ms Nicoll asked Mr Dobeson and Mr Hammond to get off the bus. Mr Dobeson and Mr Hammond refused, swearing and arguing that they were members who should be able to use the bus. Ms Nicoll was further verbally abused. Ms Nicoll said Mr Hammond also grabbed her although she could not recall where. Thereafter Mr Dobeson caught a taxi and left the environs of the Club.
Ms Nicoll said she just wanted to get Mr Dobeson and Mr Hammond out of the bar with the least amount of problems. She did not inform the Duty Manager, Ms Kabelka, or the receptionist, Ms Farrow, of what had happened to her. But she completed a written report to Men in Black of the incident.
The police arrived after midnight.
This account is derived principally from the various contemporaneous notes or statements given to the police by witnesses. Much of it is not in dispute although it is amplified by the oral evidence.
(a) Contested factual matters
Speaking generally, I prefer the contemporaneous or near contemporaneous records to recollections now seven years after the events in question. The passage of time, the use or misuse of alcohol or medication by witnesses, and the interest of the plaintiff and others in the proceedings persuade me that the contemporaneous records are a more reliable account of what occurred. The plaintiff submitted that I should accept the contemporaneous account of the events given in writing by the plaintiff to the extent that it was inconsistent with her oral evidence.
Mr Serbatoia's notes indicate that the incident happened shortly after 10pm, that the police were called and that Mr Serbatoia "went to check" at the Tavern shortly after the incident. The note indicates that he removed Mr Dobeson from the Club. Mr Serbatoia was not called as a witness and the other evidence persuades me on the balance of probabilities that he left the presence of Ms Nicoll and Mr Dobeson at about the time Mr Dobeson exited the Club.
In her oral evidence, Ms Kabelka denied that Mr Dobeson and Mr Hammond were intoxicated, but this was inconsistent with her contemporaneous statement which I accept.
Ms Nicoll gave more detailed evidence in her oral testimony about the nature of the comments made by Mr Dobeson. She testified that he variously said "I want to fuck you up the arse until you bleed", that "You deserve it for being a slut", that she was "hot" and that "You'd look really good sitting on top of me". She also testified that either Mr Dobeson or Mr Hammond said, "We will get you, fuck you and there is nothing you can do about it", that Mr Dobeson said "I just want to stick my dick down your throat until you choke to death" and that Mr Hammond said he would have sex with Ms Nicoll after Mr Dobeson.
Evidence of these particular comments was not supported by other witnesses. Mr Wood said that Mr Dobeson was being "cheeky", a description of the incidents which I do not endorse. I accept that the comments of a nature similar to those of which Ms Nicoll gave evidence were said during the encounter with Mr Dobeson, although not always in the presence of others. Whether the threatening nature of the comments was in any way moderated by the tone or manner of speech was not clarified by the evidence.
With regard to Mr Dobeson grabbing Ms Nicoll's neck, Ms Nicoll said she was tightly grabbed with both hands around her throat and she found it difficult to breathe. The agreed facts presented at Mr Dobeson's criminal proceedings suggest that this was a one-handed demonstration by Mr Dobeson of what occurred with Mr Napper, but whilst that may have been Mr Dobeson's intention, I accept that it was not consensual and was distressing for Ms Nicoll. I do not accept Ms Nicoll's oral evidence that this assault occurred some time later, after Mr Dobeson was required to leave the Club's courtesy bus.
Mr Napper's statement indicates that Mr Dobeson had exited the bar area but returned, and he was "almost sure" that the security guards "had hold of him [Mr Dobeson]" as they "escorted him out of the Club".
Although Mr Wood denied in oral evidence that he had seen Mr Dobeson grab Ms Nicoll's shoulder and breast, I accept the account Mr Wood and Ms Nicoll gave at the time. Ms Nicoll's statement was also supported by the agreed facts to which Mr Dobeson pleaded guilty.
Accordingly, I accept that Ms Nicoll was verbally abused with offensive, sexualized, violent and threatening language, and that she was grabbed on her clothed buttocks and breast by Mr Dobeson as she walked out from the bar area of the Club towards the entrance doors. In addition, she was grabbed on or around the neck outside the Club, in a distressing but not in an especially violent way.
(b) Previous conduct by Mr Dobeson
On one previous occasion Mr Dobeson had been suspended from the Club for past conduct involving Mr Napper. The only evidence about the cause of this suspension was from Mr Dobeson, who said it was a "bit of banter". I doubt this is all that it was, but I cannot conclude it involved physical violence or something that required a period of exclusion from the Club greater than the suspension to which Mr Dobeson was subjected.
Ian Nicoll, the estranged husband of Ms Nicoll, who also worked for Men in Black, gave evidence of prior antisocial behaviour by Mr Dobeson. Mr Nicoll claimed to have made a record of Mr Dobeson's unruly behaviour "at least every time I was in attendance or on duty" but this was not supported by records produced either by Men in Black or the Club. Men in Black's records did contain references to persons being excluded at times when Mr Nicoll was on duty but did not refer to Mr Dobeson. Mr Nicoll also initially claimed to have spoken to the Duty Manager on the occasions of Mr Dobeson's unruly behaviour but distanced himself from this suggestion later in his evidence. No other witness supported the claim that Mr Dobeson had been excluded from the Club for unruly behaviour.
Mr Nicoll gave evidence of a red book, a black book, an orange book, and incident report forms. Only the latter two were in evidence. Neither contained any record of Mr Nicoll concerning Mr Dobeson. The existence of the former two books was disputed and I was not satisfied that they existed.
In these circumstances, I find Mr Nicoll's evidence to be unreliable. I do not accept that Mr Dobeson had been made to leave the Club for unruly behaviour in the months prior to the assault on Ms Nicoll.
There is no evidence of any violence by Mr Dobeson towards persons known to him, or other persons, or other women, or security guards at this Club prior to 7 October 2006. There was evidence of an expired apprehended violence order in respect of Mr Napper, but the circumstances of this were not revealed, and there was no evidence of the Club being informed of knowing of it. There was no evidence of any prior criminal conduct of Mr Dobeson. Nor was there evidence of unruly conduct apart from that given by Mr Nicoll, which I have rejected. Although there was evidence that Mr Dobeson was part of a "loud group" and was asked on occasion "to keep the noise down", I am not persuaded that he had ever been asked by staff to leave the Club.
Ms Nicoll also claimed that in September 2006 she was working as a security guard for Men in Black at the Club when she was slapped on the buttock by Mr Dobeson. She protested and claimed to have told the Duty Manager, but appears not to have recorded it in the Incident Report Book. No other evidence supported this incident or any communication by her about it. It was evidently less serious than the events of 7 October 2006, of which she did not tell the Duty Manager. Mr Dobeson was not asked about it. I was unable to be satisfied as to whether it had occurred or to attribute to it some significance in these proceedings.
C. Alleged negligence
The precise negligence of the Club asserted by Ms Nicoll was not clearly articulated in her submissions. She submitted, "in cases such as the present the issue seems to be that the precise content or scope of the duty owed is difficult to define with any precision".
Ms Nicoll's submissions and the statement of claim appeared to include the following allegations:
(a) the Club allowed Mr Dobeson and Mr Hammond "into the Club in circumstances where they were intoxicated";
(b) the Club continued to serve Mr Dobeson and Mr Hammond alcohol or "let them continue drinking" when their intoxication ought to have been evident and wrongly failed to "require Dobeson to immediately vacate the premises";
(c) "the Club knew that Dobeson had a propensity towards aggressive and violent behaviour, particularly when intoxicated" and that "the mixture of Dobeson, alcohol, his ex-wife and Mr Napper were potentially explosive";
(d) the Club failed to remove Mr Dobeson and Mr Hammond without the assistance of Ms Nicoll, but directed her, "a petite woman, to evict these threatening men". The Club gave her "no assistance despite the lewd sexualised threats" which "continued for some minutes...just outside the main doors of the Club", and failed to "require the other security guard (Mr Serbatoia) to accompany the Plaintiff"; and
(e) the Club failed to provide a safe working environment for Ms Nicoll.
Other allegations of negligence are made in the statement of claim.
The plaintiff alleges a failure in the Club to contact the police, but the police were contacted, a matter accepted by the plaintiff in her submissions.
The plaintiff alleges that the Club failed to warn the plaintiff of Mr Dobeson's "propensity toward aggressive and violent behaviour". This also was not a matter pressed in submissions, perhaps because Ms Nicoll was informed of Mr Dobeson's behaviour towards Mr Napper, the most obvious and recent act of violence by Mr Dobeson, and because of the evidence from Mr Nicoll and Ms Nicoll about their experience of prior unruly behaviour by Mr Dobeson.
Reference was also made in the statement of claim to the allegedly exacerbating fact that Mr Dobeson's ex-wife was on the Club premises at the time of the assaults. This also was not pressed in submissions presumably because there was no evidence that she was on the premises and was not present when any of the assaults on Mr Napper and Ms Nicoll took place.
The various allegations stated at [24] above might fairly be abridged to the following matters:
(1) Wrongful admission of Mr Dobeson and Mr Hammond into the Club.
(2) Dilatory removal of Mr Dobeson and Mr Hammond after the assault on Mr Napper.
(3) Utilizing Ms Nicoll to remove Mr Dobeson and Mr Hammond.
(4) Vicarious liability for Mr Serbatoia's absence.
D. Duty of care
Sections 5B, 5C and 5D of the Civil Liability Act 2002 inform the liability of the Club in negligence, and are as follows:
"5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.
5C Other principles
In proceedings relating to liability for negligence:
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.
5D General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."
Sections 5A and 5B are relevant to the duty of care. Whether s 5B(1)(c) is satisfied requires the precautions, asserted by Ms Nicoll not to have been adopted, to be identified with clarity. As indicated above, this was not done.
Generally no duty is owed to protect a person against the possibility of criminal conduct by another, particularly because criminal acts are not generally predictable: Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 267; [2000] HCA 61 at [29]. However, the application of this rule to licensed premises is limited.
In Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 at [26], the High Court found a duty was owed by the operator of licensed premises in that case to protect patrons from the violent, quarrelsome and disorderly conduct of others. At [25] the Court referred to considerations that distinguished that case from Modbury: the occupier's failure to control access to the premises; liquor was sold at the premises; it was well recognised that through the misuse of liquor harm might arise from violence and the Liquor Act 1982 created a similar obligation to prevent violent, quarrelsome or disorderly conduct.
These matters are similar to the present situation, indicating that the Club owed a duty to take reasonable care to protect patrons, such as for example Mr Napper, from unruly or violent conduct of intoxicated persons (see Adeels Palace at [26]).
However, it must be doubted whether this principle in Adeels Palace has ready application to a security guard at licensed premises. A patron voluntarily attends the premises for relaxation and enjoyment and expects to be safe, in part as a consequence of contributing by the purchase of goods and services to the financial wellbeing of the Club. A security guard is an expense not a source of income, and attends not voluntarily with an expectation of safe enjoyment, but pursuant to some obligation of service with an eye open to potentially unsafe situations resulting from unruly or intoxicated persons. While the patrons of the Club were the beneficiaries of a duty of care, the security guards were a means of securing that care, by taking steps like seeking out unsafe situations, conducting perimeter checks and patrols, identifying intoxicated persons, and escorting unruly patrons from the premises.
Thus, a duty of care in respect of disorderly persons owed by the operator of licensed premises to a patron is not at all analogous to any duty that may be owed to a security guard. Adeels Palace is not authority from which one can reason by analogy to impose a duty on the Club in respect of security guards.
That there is a risk of injury to security guards is insufficient to establish a duty of care (see Adeels Palace at [38]).
E. Breach of duty in particular circumstances
(a) Use of Ms Nicoll to remove Mr Dobeson
In the present case, the danger arose from compelling intoxicated or unruly persons to leave the premises, whether shortly after entry or subsequently after the Napper incident. To suggest that the Club had an obligation to do this without the involvement of Ms Nicoll is to conclude that Ms Nicoll was unable to provide security. Yet Ms Nicoll was trained to do security work. She was not only trained in the responsible service of alcohol alike with Ms Kabelka, but she was also certified in many other aspects of security work. On the night she was the senior security guard at the Club. Having Ms Nicoll absent herself at the time of Mr Dobeson's departure may have avoided the harm to her, but it would increase the risk of harm to others by placing untrained persons in control of security. The security guards would be anticipated to appreciate better the risk of assault in the course of evicting an unruly patron, in view of their specialised training, then would the Club (see eg Balesfire Pty Limited v Jamie Adams [2006] NSWCA 112 at [32]-[35], Davis v Nolras Pty Ltd [2005] NSWCA 379 at [49]).
The decision in Adeels Palace recognised the need for the operator of licensed premises to provide security services to guard against disorderly behaviour. It is in compliance with the duty to patrons, rather than in breach of it, to retain and utilize trained security guards to remove unruly or intoxicated persons.
Nor was there any evidence that a properly trained female security guard was more at risk, or less likely to inhibit unruly conduct, than a male guard. That Mr Dobeson's conduct may have been different had two male security guards been present rather than Ms Nicoll and Mr Serbatoia is to make inappropriate use of hindsight (see Modbury at [29], Adeels Palace at [31]), and is, in any event, mere speculation.
The plaintiff's written submissions indicated that a "petite female security guard" was insufficient. Ms Nicoll was not accurately to be described as petite. It was submitted that she was a "young female security guard that was left unprotected". But senior counsel for Ms Nicoll ultimately accepted that the duty was not materially determined in the present case by matters of gender, age (at least when Ms Nicoll was then a mature woman of 35 years) or build.
In removing Mr Dobeson from the Club Ms Nicoll was accompanied by a male security guard. No suggestion was made that in this case that the two security guards were insufficient.
Ultimately, it appeared that this aspect of the claim was only faintly pressed in oral submissions.
In my view, the Club did not owe a duty of care to Ms Nicoll to take the precaution of instructing her not to be involved in the removal of Mr Dobeson so as to protect her against assaults by unruly patrons. Such a precaution is not justified by any of the considerations listed in s 5B(2) of the Civil Liability Act 2002, or the principles in s 5C(a) and (b).
(b) Admission of Mr Dobeson and Mr Hammond into the Club
This complaint is founded upon Mr Dobeson and Mr Hammond being intoxicated at the time of entry into the Club, and Mr Dobeson having a propensity for aggressive and violent behaviour. I have found, on the basis of the contemporaneous statement provided by the Duty Manager, Sharon Kabelka, that Mr Dobeson was intoxicated at a time shortly after the assault on Mr Napper. Whether "intoxicated" was a reference to the statutory definition ("the person's speech, balance, co-ordination or behaviour is noticeably affected, and [reasonably believed to be] the result of the consumption of liquor": s 5 of the Liquor Act 2007) or, more likely, to be the conventional meaning of "drunk" was not clarified by the evidence, but the distinction probably does not matter. By that stage he had consumed a part of one beer at the Club. This indicates that Mr Dobeson was likely affected by alcohol at the time he entered the Club. In my view, that is insufficient to establish that Mr Dobeson was intoxicated, in the statutory or the conventional sense, at the time of entry, in view of the evidence of Ms Farrow considered below.
I do not accept Mr Dobeson's account of a memory of red eyes, glowing face, slurred speech and unsteady gait. As Mr Dobeson did not speak upon his entry into the Club, only the unsteady gait could reflect that he is, at least under the Liquor Act 2007, intoxicated ("speech, balance, co-ordination or behaviour": s 5(1)(a)). In any event, if he was at all affected by alcohol, and became intoxicated at the Club, as I accept, then his memory is less likely to be reliable. His observations of his own condition and appearance seven years earlier, prior to the memorable assaults, are not matters of significance that would likely be accurately recalled years after the event, even without intoxication. Nor do I regard his estimate of the number of drinks he had previously consumed that evening as reliable, or especially probative in determining his apparent condition when he entered the Club.
Mr Dobeson managed the journey by foot to the Club from a previous licensed establishment without apparent difficulty or incident. That journey required him to negotiate speed humps and steps. When he reached the Club he was sufficiently cognisant of his circumstances to be aware of the need for, and to take, steps to avoid manifesting any level of intoxication.
Whilst Mr Dobeson was affected by alcohol, I do not find that this was noticeable to Nicole Farrow, the receptionist at the Club. Mr Dobeson gave evidence that he was trying to hide his condition when he entered the Club. He said nothing to Ms Farrow, he was trying to appear unaffected by alcohol, and Ms Farrow said she noticed nothing adverse about his appearance. There was no evidence to contradict her account, nor evidence to persuade me that Ms Farrow should have noticed that Mr Dobeson was intoxicated. I am not persuaded that the extent to which Mr Dobeson was affected by alcohol at the time of his entry into the Club was so great as to make it noticeable to anyone observing his entry into the Club.
Mr Dobeson was noticed to be intoxicated some little time later by Ms Kabelka, after consuming as much as one schooner of beer over a period of 15 to 30 minutes. In this respect I accept the reliability of his statement to police a few days after the incident, that he had only one beer, over his equivocal oral evidence about the possibility of a second beer. But I do not think Ms Kabelka's identification of intoxication determines how Mr Dobeson appeared (or whether he was noticeably affected) when he entered the Club. Apart from the extra alcohol Mr Dobeson consumed at the Club, both Mr Napper and Ms Kabelka had the opportunity to speak to Mr Dobeson, hear him speak and observe him at close hand. The beer he consumed at the Club would have increased the effect of alcohol upon him, and the conversation and interaction he had in the bar at the Club enabled his condition to be more readily ascertained. I remain unpersuaded that Ms Farrow should have observed his condition and that it warranted stopping him from entering the Club.
Sections 103 and 125 of the Liquor Act 2007 deal with intoxicated persons on licensed premises. These provisions are not determinative of whether a duty of care was breached but the reasonable obligations on a licensee are informed by them (see Adeels Palace at [22] and [25]).
It might be questioned whether a patron being intoxicated requires their exclusion from the licensed premises. Section 125(3) of the Liquor Act 2007 precludes the sale of liquor to an intoxicated person but section 103 only entitles a licensee to refuse admission to an intoxicated person, and does not in mandatory terms require it. On the other hand, s 125(1) requires a licensee not to "permit intoxication" which means, when read with s 5 of the Liquor Act 2007, not to permit "the presence of intoxicated persons on the licensed premises". And yet it seems, under s 125(4A), that the licensee has not "permitted intoxication" if the police are called, the intoxicated person is asked to leave and no further drinks were served "after [the licensee] becoming aware that the person was intoxicated", or, that the licensee has used "all other reasonable steps to prevent intoxication" (see Liquor Act 2007 s 124(4A), and cf Collingwood Hotel Pty Ltd v O'Reilly [2007] NSWCA 155 at [21]). It may be that individual circumstances would determine whether the Liquor Act 2007 provisions are offended by intoxication not noticed by the licensee.
In any event, "the mere fact of a degree of intoxication will not give rise to a duty to take immediate steps to remove the affected person, in order to protect other patrons": Wagstaff v Haslam (2007) 69 NSWLR 1 at 50; [2007] NSWCA 28 at [50].
The duty of care owed by the Club to patrons may have included an obligation to observe patrons entering the Club, but that was a practice engaged in by the Club and was a purpose of Ms Farrow in sitting near the entrance. Her role was to take care to ensure that only members entered the Club, without being signed in, and to identify (and perhaps stop) patrons who appeared to be intoxicated. That obligation is not absolute, only to take reasonable care. Apart from Mr Dobeson's evidence of his own observations, which I do not accept, Ms Nicoll did not identify any observable feature in Mr Dobeson of intoxication that might establish negligence by Ms Farrow.
It might be suggested that a more direct approach to patrons entering the Club was warranted and that, later in the evenings, Ms Farrow should engage in conversation with all patrons as they entered. This may have lessened the likelihood of intoxicated persons entering the bar area without detection.
However, I am not persuaded that it was reasonable for the Club to have the employee in Ms Farrow's position engage (or seek to engage) in conversation with every entrant. There was no evidence that this was a practice in other clubs, or that the rate of entry of patrons made it feasible for Ms Farrow to engage in conversation with patrons or that it was commercially reasonable to adopt a practice of questioning upon entry.
In any event, a more interventionist approach in questioning patrons upon entry could not be a reasonable precaution against the risk of the type of harm in this case if it did not operate to reduce or prevent assaults on security guards (see Civil Liability Act 2002 s 5B(2)(a)). Such an approach may have prevented an intoxicated person from entering the bar, but this says nothing about whether the assault on Ms Nicoll would be prevented or rendered more unlikely. The assault happened near and outside the entrance doors, locations beyond which Mr Dobeson had already passed even if he had been stopped in the foyer. There was no evidence to support a vetting process occurring outside the Club entrance doors and Ms Nicoll did not advance such a contention.
Once Mr Dobeson and Mr Hammond were inside the Club, it is doubtful whether the early detection of any intoxication would have reduced the risk of an assault on Ms Nicoll. I cannot assume they would more peacefully depart when controlled by Ms Farrow alone upon entry, when they did not do so when in the presence of the security guards, Ms Kabelka and Mr Wood. In view of their observed behaviour on this night the likely result of Ms Farrow stopping them would be that Ms Kabelka and the security guards would be notified and Ms Nicoll and Mr Serbatoia would be instructed to escort them from the premises, a circumstance not materially different from the present.
As indicated above, Ms Nicoll did not establish that Mr Dobeson had a pre-existing propensity to violence. There was nothing in the evidence that justified a finding that Mr Dobeson should have been excluded from the Club for past conduct.
Mr Hammond was sometimes abusive to people, but neither Mr Hammond nor Mr Dobeson were observed to have been violent previously. That Mr Dobeson and Mr Hammond may on occasion previously have been "loud" does not alert the Club before their entry of the possibility that they would occasion assaults of the nature perpetrated on Ms Nicoll or require as a reasonable precaution that they be excluded (see Adeels Palace at [38]).
Accordingly, I do not find that the circumstances created a duty in the Club either to patrons generally or to a security guard to prevent Mr Dobeson from entry, whether because of Mr Dobeson's past conduct, or because of his condition as observed by Ms Farrow. Exclusion of Mr Dobeson in the circumstances was not a reasonable precaution against risk of harm to patrons, and was even less so a reasonable precaution against harm to a security guard like Ms Nicoll (see s 5B(1)(c) and (2)(a)).
(c) Conduct in the Club
The complaint by Ms Nicoll against the Club also embraces the submission that Ms Kabelka should have ordered Mr Dobeson and Mr Hammond to leave immediately, and that when she did order them to leave she should have accompanied them out. This sits uncomfortably with Ms Nicoll's rhetorical submission about Ms Kabelka: "Why did she not await the arrival of police?"
In my view, neither the absence of Ms Kabelka or the delayed departure is significant. Counsel for the Insurer, whose interests were aligned with the plaintiff on the question of liability, conceded that forcing Mr Dobeson to depart before he finished his drink had the risk of aggravating the situation. Mr Dobeson was asked to leave the premises after he was observed to be intoxicated. The police were called, and he was not served any further alcohol. Thus, the elements of s 125(4A) of the Liquor Act 1982 appear to have been satisfied. There was no suggestion that a departure a few minutes earlier would have reduced any risk.
Nor would departure in the presence of Ms Kabelka have reduced the risk of violence by Mr Dobeson. There was no suggestion that he was any more deferential or submissive in Ms Kabelka's presence than he was in the presence of Mr Wood, Mr Serbatoia and Ms Nicoll. Ms Nicoll did not identify how such a precaution would reasonably have lessened the risk.
In those circumstances, I find that there was no duty on the Club to remove Mr Dobeson more expeditiously than it did, or involve Ms Kabelka in the actual removal. This would not have reduced the risk, and the prospect of involving further persons untrained in security, such as Ms Kabelka, was likely to heighten rather than reduce the risk of harm.
(d) Mr Serbatoia's absence
Ms Nicoll raised an allegation involving conduct of a security guard, Mr Serbatoia. It seemed to have been put in two ways. First, that no experienced and trained male security guard was present. But Mr Serbatoia was present when Mr Dobeson and Mr Hammond were escorted out. Although Mr Serbatoia was the junior security guard and relatively new, there was no evidence that he was untrained. If he was not sufficiently experienced that seems to be a matter of complaint against Men in Black not the Club. At no stage, either before or after the assault, did Ms Nicoll seek to obtain assistance to perform her work.
The same approach applies to Mr Serbatoia's failure to remain with Ms Nicoll as they exited the Club. There was no suggestion that the Club would have known that Mr Serbatoia was likely to vacate the area rather than carry out his duty to be present with Ms Nicoll in seeing off Mr Dobeson from the premises.
Ms Nicoll also submitted that the Club was vicariously liable for Mr Serbatoia's negligent absence around the time Mr Dobeson exited the Club. But this issue was not pleaded or opened, the issue was not properly canvassed in the trial and no application for amendment to the particulars was made. The statement of claim asserts that Ms Nicoll was at all material times employed by Men in Black, and at the time was performing her employment duties. The same conclusion must be inferred in respect of her co-worker, Mr Serbatoia. There is no scope for vicarious liability to apply.
In the circumstances, the matter was not fairly raised and I do not think I can find in favour of Ms Nicoll in respect of it.
Ms Nicoll submitted that Mr Serbatoia was subject to the Club's direction whilst at the Club. It was said that wearing a uniform, assisting management and acting at their direction, and the working hours were all determined by the Club.
I do not accept this submission. The Club did not provide the uniform and the evidence shows that the guards acted independent of the Club in respect of whether they stayed on the premises or went to the Tavern, and the means they employed to remove unruly patrons from the premises. The 2002 agreement between the Club and Men in Black required Men in Black to provide uniforms, earpieces, two-way radios and incident report books. The Club was to provide a "monthly roster of...guard requirements" but did not determine which security guard was rostered.
The circumstances of this case do not suggest a duty to the independent contractor. Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 24, [1986] HCA 1 identified that the control of the Club over the activities of Ms Nicoll is a relevant matter. The other matters there mentioned are of no assistance to Ms Nicoll in establishing liability. The Club may have had power to direct the security guards in some respects, but that power is of no significance here. The Club directed Mr Dobeson to leave the Club, and directed the security guards to effect that departure but did not determine the manner in which that work was done.
Some of the offending conduct of Mr Dobeson occurred in the presence of both security guards, some in the absence of Mr Serbatoia. But there is no suggestion that the Club controlled the absence of Mr Serbatoia. If anything, his absence was contrary to the direction of the Club.
This is not a case where the alleged negligence arises from a failure to properly coordinate various activities and contractors (cf Stevens v Brodribb Sawmilling Co Pty Ltd at 31, 47-48). Apart from Mr Serbatoia's absence the other matter of significance affecting the risk of assault on the security guards was the ability of the security guards, or Ms Nicoll in particular, to deal with aggressive conduct by Mr Dobeson. That was a consequence of her training and experience, a matter controlled by Men in Black and in relation to which the Club had no involvement. So far as the evidence revealed, the extent of training and experience of security guards was a matter unknown to the Club. The procedure for removing Mr Dobeson, whether to walk behind, beside or in front of him, whether both guards were needed, whether he should have been held by the guards, what verbal responses should be given by the guards, were all matters over which the Club neither had nor could have had control, because of the Club's relative ignorance compared to the specialised training of the guards (see Wooby v Australian Postal Corporation [2013] NSWCA 183 at [19]-[26]). Ms Nicoll said that she felt she was fully and sufficiently trained to do her work as a security guard in 2006.
In Wooby at [26] the Court of Appeal quoted the five factors referred to in Sydney Water Corporation v Abramovic [2007] NSWCA 248, namely:
"(a) the principal directs the manner of performance of the work;
(b) the work requires the coordination of the activities of different contractors;
(c) the principal has or ought to have knowledge of the risk and the employer does not and cannot reasonably be expected to have such knowledge;
(d) the principal has the means to alleviate the risk and the employer cannot reasonably be expected to do so;
(e) although the employer has or should have the relevant knowledge and can be expected reasonably to take steps to alleviate the risk, it does not, to the knowledge of the principal, do so."
As set above, the Club did not (and could not reasonably) control the manner of Mr Dobeson's removal, or the decision of Mr Serbatoia to absent himself. None of the other factors assist Ms Nicoll.
Thus, I am not satisfied that the Club could be liable, whether vicariously or otherwise, for Mr Serbatoia's absence, or for his failure to assist Ms Nicoll. There is no basis in my view to find any duty, or any breach, by the Club, or any responsibility for Mr Serbatoia, so as to render the Club liable for the injuries to Ms Nicoll.
F. Causation
I have already found that stopping Mr Dobeson on entry, or removing him more expeditiously after the assault on Mr Napper, does not operate to reduce the risk that he would commit an assault on Ms Nicoll.
Stopping Mr Dobeson in the foyer may have avoided the assault on Mr Napper, which happened in the bar, but I am not persuaded it would have reduced the risk of an assault on Ms Nicoll at the entrance doors and outside them. Although the assault on Mr Napper was a cause of Mr Dobeson's exclusion from the Club, there is nothing to indicate that the assault on Mr Napper was causative of the more random assault on Ms Nicoll. Further, it is insufficient to show that changing one circumstance might have made a difference (see Adeels Palace at [47]-[51]).
A significant component of the assault by Mr Dobeson was his groping of Ms Nicoll's breast. This occurred when Mr Wood and Mr Serbatoia were apparently in close proximity. It could scarcely be suggested that Mr Dobeson's behaviour would have been improved by their absence or potential absence. Yet that is the position Ms Farrow may have been in had Mr Hammond and Mr Dobeson been stopped as they entered the Club.
Any attempt to have Mr Dobeson leave the Club was likely to bring him into contact with the security guards as occurred. Even if the security guards were not involved, if Ms Farrow or Ms Kabelka undertook the task of removing him, which I cannot accept was part of the duty of the Club in circumstances where they had employed security guards, still it does not operate to reduce the risk of harm to others by Mr Dobeson. Of course if Ms Nicoll was not involved in removing Mr Dobeson, she would likely not have been assaulted, but this is immaterial, see Modbury at [29].
In my view, there was no factual causation as that term is used in s 5D of the Civil Liability Act 2002, because the failure to stop Mr Dobeson in the foyer, or to remove him from the bar more expeditiously, would not have precluded the damage. Nor does it seem to me to be appropriate that the Club should be liable to security guards for harm caused by unruly patrons, when the security guards are engaged for the purpose of preventing that harm. Thus, the scope of liability under s 5D(1)(b) of the Act should not be found to extend to the present claim.
Accordingly, I do not find any liability in the Club. The liability of the insurer of Men in Black, and Mr Hammond and Mr Dobeson (by reason of the criminal convictions), is not in contest.
G. Damages
(a) History
Ms Nicoll, now 42 years old, met in the early period of her life with more than her share of difficulties. She was verbally, physically and sexually severely abused by her father, her brother had died of a genetic illness during her childhood and her parents separated. She went to live with her grandparents. She had seizures from age 13 although epilepsy was not diagnosed until age 20. She did not do well at school, and became pregnant at aged 16. Her daughter was born with the same genetic problem as her brother, and passed away before her first birthday. The father of Ms Nicoll's daughter, her partner at the time, was also physically and emotionally abusive. Ms Nicoll was hospitalised with a broken jaw, broken cheekbones and other head injuries. She managed to leave that relationship in her late teens.
Her family had a history of bipolar disorder and alcoholism. One doctor concluded that she experienced post-traumatic stress disorder from the violence to which she was exposed. She was also diagnosed with attention deficit disorder.
In about 1994 things began to improve for Ms Nicoll. Her epilepsy was medicated and she met Ian Nicoll who she eventually married. Three children were born to them. Ms Nicoll worked irregularly until partway through the pregnancy of her first child with Mr Nicoll in about the end of 1994. She did not work again until 2006, spending her time raising her three children and involving herself in the domestic affairs of the family. Mr Nicoll worked as a security guard. They were able to acquire a home and have horses. Both Mr and Ms Nicoll gave evidence of social interaction, tennis and fishing. The lifestyle sounded idyllic, although it was not always so.
Each of Ms Nicoll's children has health issues: all have asthma, one has attention deficit hyperactivity disorder and one has diabetes. Ms Nicoll continued to have seizures of various magnitudes, and was occasionally hospitalised as a result. In about 1999, she obtained a disability pension that continues to the present day. She also suffered from postnatal depression after the birth of her first son. She was prescribed various medications in significant amounts. In the 15 months prior to the assault she was prescribed Dexamphetamine, Xanax, Epilim, Panadeine Forte, Mogadon, Morphine and Pethidine.
In 2005, Ms Nicoll considered becoming a security guard. She completed a course and obtained registration and a licence. In 2006, she obtained irregular work with Men in Black, the employer of her husband, earning only $345 from Men in Black in the period July to October 2006.
After the assault on 7 October 2006, Mr Hewitt came to the Club, checked Ms Nicoll was okay, and drove her home at the end of her shift. Mr Hewitt did not give evidence. Ms Nicoll said she was shaking and crying in the car, she felt unsafe, and threw up five times. She said she felt dirty, numb, in shock and pain from her shoulder and neck.
Mr Nicoll took Ms Nicoll to visit Dr Killalea. Ms Nicoll told Dr Killalea about the incident and was prescribed medication for her pain.
Ms Nicoll gave evidence that the assault caused her to not sleep, or fitfully sleep on her couch. She recounted that she would be awakened by any noise from cars or dogs, had nightmares not only about the incident but the earlier abuse she had as a child and with her first husband, and began to get frequent seizures, 10 to 15 a day on bad days.
Ms Nicoll said she no longer enjoyed intimate relations with her husband or slept in the marital bed. Mr Nicoll described their intimate relations as "extremely sporadic".
Ms Nicoll had x-rays on her neck and shoulder. She was medicated for the pain but she said her shoulder and neck did not improve. Although she had previously experienced pain from her seizures and migraines, these were now more common and severe. She had counselling sessions with a psychologist, Mr Guilfoyle, regularly until he retired in 2012.
At the recommendation of Mr Guilfoyle, Ms Nicoll completed further security training courses. She has done some further security work with her husband but she was unable to do physical security work because of panic attacks. Yet her earnings indicate that she has done more work after the assault then before. She earned $345 from Men in Black in four months of the financial year before the assault and $2,479 in total in that period, apart from workers compensation payments. She earned $6,133 in the 2008 financial year, and $1,588 in 2009. She was paid at $20 per hour.
In July 2012 Ms Nicoll visited a hospital in Sydney as support for a friend who was having cancer treatment. She recalls eating with her friend, then waking up a day or two later in Westmead Hospital. She discharged herself against medical advice. She was told that she had been raped but she has no recollection of the event.
Ms Nicoll says she still has problems with her right shoulder, which aches in cold weather. She cannot vacuum, and ceased driving because of her seizures. Ms Nicoll accepted that she did some wood splitting after the assault, although she asserted that this was rare and due to her frustration at not contributing to the family.
In March 2013 Ms Nicoll separated from her husband, left the family home, and commenced living with her current partner. She says she has no intimate relations with her partner although she has hopes of being able to do so.
Ms Nicoll says her condition has not changed. She never feels safe if she is alone. She is fearful of attacks and her neck hurts. She is always tired, cannot concentrate, easily upset, withdraws from everyone, and no longer enjoys tennis, and has less contact with friends and is much less able to manage domestic tasks like the children's lunch. In fact, she does not manage domestic tasks with her children as she has separated from her husband and the children, and communicates with them only through Facebook and the telephone.
Ms Nicoll asserted that she had no difficulties with her estranged husband before the assault. Yet she did complain to doctors about his behaviour on occasions including that he slammed her head into a wall in January 2003 and in August 2006 her husband lost his temper and hurt her neck. Both Ms Nicoll and her husband appeared to misuse her prescribed medication on occasions.
Ms Nicoll's Facebook page contains the following entry in reference to her current partner:
"I am Truly The Happiest Woman Alive. I Have The Most Amazing Man in the Entire World That Loves Me With All His Heart & Soul. For The First Time in My Life I Have Someone Who Loves Me Just As Much As I Love Him. Bubby, (Ken Gardiner) Thank you for being The Love of My Love, My Soul mate & My One in 6 Billion. I Love You with all My Heart, Mind, Body and Soul. Together Forever & Never to Part."
Ms Nicoll was generally an honest witness, but I do not accept her account or chronology of events without reservation. She tended to attribute major changes and continuing problems to the 2006 assault, and to minimize the difficulties she faced before the assault.
(b) Medical evidence
Any assessment of the plaintiff's damages will depend to some degree upon a comparison between her condition prior to the assault, and her present condition. The Court was assisted by a joint report prepared by the four relevant psychiatrists, Dr Heiner, Dr Klug, Dr Bertucen and Dr Smith, who were, respectively, the plaintiff's treating psychiatrist and the plaintiff's, Insurer's and Club's expert psychiatrist retained for these proceedings.
The joint report recorded agreement between Dr Heiner, Dr Bertucen and Dr Smith on most matters of significance, less so by Dr Klug, the plaintiff's expert psychiatrist.
The joint report was drafted by Dr Heiner and signed by him and Dr Klug. Dr Smith and Dr Bertucen largely agreed with an earlier draft of the joint report, not relevantly different from the final version signed by Dr Heiner and Dr Klug. Relevantly the joint report stated, in respect of the condition of Ms Nicoll prior to the assault:
"There was agreement that Ms. Nicolls [sic] was psychologically, emotionally, cognitively and socially impaired prior to the events of 2006. The traumas and deprivation that she outlined in childhood, and her long history of abuse as a young woman, along with her reported history of dependent relationships on frequently violent and unstable males were all seen as evidence pointing to psychological pathology. She did appear to be functioning well, in the longer term relationship with her husband prior to the 2006 incident, but she was still socially isolated and maintained minimal interaction with others in the community. Likewise, the medical record from Dr. Killilea (General Practitioner) prior to the 2006 incident outlines a long history of chronic pain, frequent opiate use and at times evidence of pointing to misuse and abuse [of] these substances."
"We believe the consensus diagnosis is as follows...
Pre-existing psychopathology. There was consensus that Ms. Nicoll does suffer from significant and severe pre-existing psychological psychiatric pathology. There was agreement that this personality disorder had strong 'dependent and socially avoidant' traits, but some disagreement as to whether there was sufficient symptoms to use the label 'borderline personality disorder'.
There was agreement that Ms. Nicoll had a chronic pain/opiate dependent problem. This [is a] chronic disorder, and it has been present for many years prior to the events of 2006. There was no consensus as to whether the best description was Chronic Pain syndrome or Opiate Dependence. Further information would be required to resolve this.
There was agreement that there was little evidence to substantiate a diagnosis of either Attention Deficit Disorder, or Bipolar Disorder Type 2.
The question of Ms. Nicoll's underlying intellectual functioning or cognitive deficits was discussed. There was agreement that she was impaired, but whether this was congenital, the result of her childhood trauma or an acquired state as a result of her long history of physical assault in adulthood was unclear..."
" Did the plaintiff have a pre-existing condition(s) which affected her capacity for work as at the time of the incident on 7th October 2006? If so, please identify the condition(s) and advise to what extent the pre-existing condition(s) affected her capacity for work as at 7th October 2006.
This had been discussed above, but we will attempt to provide some of the details in which those decisions were made.
History suggests that Ms. Nicholl's psychological, emotional, physical and social environment and lifestyle had been consistent throughout her life. The history we had is of a number of short term, casual jobs without any sustained or prolonged periods of employment. This history we have is of chronic physical difficulties with migraines, and other symptoms for which Ms. Nicoll's frequently sought and was prescribed opiates. There is evidence that indicates excessive use of these medications, and a passive reliance on medications to solve her problems. The history suggests a long history of social avoidance and isolation, with a dependency on others to survive."
In respect of the effect on Ms Nicoll of the assault, the joint report additionally stated:
"...There was general agreement that there had been some symptoms development and some psychological and social impairment following the incident of 2006, however, as this was superimposed the preexisting pathology, and the disagreement was about the extent of change and the relative contribution of these two components"
" There was agreement that Ms. Nicoll did suffer a deleterious psychological response as a result of the assault of 2006. There was agreement that Ms. Nicoll's pre-existing 'chronic psychiatric pathology was exacerbated by the assault of 2006, and that there were some additional symptoms as a result of the assault of 2006'. There was agreement that this did qualify for the diagnosis of 'an adjustment disorder with mixed features' but there was a lack of consensus that it qualified for a diagnosis of 'post-traumatic stress disorder'. Dr. Peter Klug is of the opinion that a diagnosis of 'Reactivated Post-Traumatic [Stress] Disorder was appropriate."
"...Ms. Nicoll did develop some psychological consequences as a result of the 2006 assault. There was consensus that these psychological consequences were superimposed on pre-existing psychopathology, and were transient. With the exception of Dr. Peter Klug, who felt that Ms. Nicoll's ability to be employed in the future had been destroyed by the assault of 2006, the consensus was that Ms. Nicoll had best suffered transient psychological symptoms that may have lasted for a year at most. The major reason for this disagreement was a lack of details about exactly how long and in what capacity she had previously worked. She had only just begun the work at The St. Basin Club and had only completed a few shifts at the time of the incident of 2006, as the information suggested no work since her previous PTSD history.
The fact that she attempted a return to security work in 2009 and that her overall life style appears to have been very similar to what it had been prior to 2006 all point to the transient nature of the psychological and social sequelae of the 2006 event, is evidence in support of this."
"In the absence of concrete evidence to the contrary (group certificates, records from employers) there is no evidence to suggest that her capacity for work has been substantially altered since the incident of 7th October 2006."
Dr Klug clarified in an addendum that this last sentence should not be read as representing his opinion. There is some uncertainty about the meaning of this sentence in any event, which I have understood to mean that, other than Dr Klug, there was consensus that, apart from transient consequences, Ms Nicoll's capacity for work was not substantially altered by the assault.
In respect of Ms Nicoll's ongoing condition, the joint report also stated:
"The consensus was that Ms. Nicoll has a poor prognosis. There was pessimism that her long term psychological problems would resolve, and an expectation that these long term psychological patterns of behaviour would continue into the future. As stated above, Dr Peter Klug believes that Ms. Nicoll's employability had been reduced significantly since the result of the assault of 2006, but the consensus of the other three (3) psychiatrists was that Ms. Nicoll's employability was impaired prior [to] the assault of 2006, and that at best the assault reaffirmed what had already been an entrenched pattern of behaviour.
Does the diagnosed injury or condition affect her capacity for work, and if so, to what extent?
There was consensus that Ms. [Nicoll] was totally unemployable."
" Does the diagnosed injury or condition give rise to a need for attendant care services, and if so, to what extent?
There was consensus that Ms. Nicoll has a pattern of being in 'dependent relationships'. This predated the assault of 2006, and has continued since then. There was no evidence that her need for attendant care had changed as a result of the assault of 2006, or as a result of the 2012 incident."
" Does the diagnosed injury or condition make likely a need for any future treatment, and if so, what is the nature and likely cost thereof?
There was consensus that Ms. Nicoll's problems are long standing and entrenched. There was pessimism that 'any psychological treatment may be of benefit'. This is based on the nature of Ms. Nicoll's long term problems, but also because Ms. Nicoll herself does not identify these long term difficulties as a reason to seek treatment. Compensation and the financial reward that this would bring are important, but she is not currently and has not indicated that she intends to seek treatment in the future.
In view of this, there would not be expected to be any ongoing cost."
The experts also manifested some disagreement about the incident in 2012 where Ms Nicoll drove to pick up a friend, travelled to Sydney, and while alone was apparently sexually assaulted. She was hospitalised for a day or two and discharged herself against hospital advice. The report stated:
" The assault of July 2012 was also a source of disagreement. There was agreement that the assault occurred, and that Ms. Nicoll was injured and hospitalised as a result. The incident was confusing in that she initially reported having been assaulted, and she was given potent opiate pain killers for her complaints of pain."
Dr Bertucen was not persuaded that an assault occurred, but the joint report indicates that the other doctors appeared to agree as to the incident. The incident indicated that Ms Nicoll was not so unable to leave the home as her evidence of social withdrawal indicated. That she met her current partner in Cairns, as she told Dr Smith, is also inconsistent with her evidence of inability to leave the home.
Dr Klug wrote an addendum to the joint report. He noted that he was "unhappy with aspects of the Report". The only matter of relevance he specified is the one outlined earlier.
Dr Klug, Dr Heiner and Dr Bertucen gave evidence in conclave. At an early stage of this conclave, senior counsel for the plaintiff sought to establish a pre-assault level of functional capacity beyond that stated in the joint report. The following question, or history, was put without objection to the three doctors:
"I want to give you some matters that may or may not have been part of your pre-October 2006 history, but which are in evidence before the Court and I am going to ask each of you in turn whether this history affects the conclusions to which each of you have come. Given the consistent prior history of abuse, the evidence is that from 1994 to the time of the assault, she was in a stable relationship, that in those years she had three children, two of whom provided health difficulties, with which she coped, that she interacted with the schools providing education to her children, including teachers, given the eldest one had ADHD and the eldest one was an insulin-dependent diabetic, that socially she was involved in the Erowal Bay Tennis Club, played regularly, socialised regularly with members - I'm not suggesting she was another Yvonne Goolagong, but she played tennis and socialised.
She was involved in social gatherings with family, extended family, friends, neighbours. Sometimes her husband was away with work and she coped with the three children and running a household; that from time to time she did the shopping by herself. She maintained social friendships, girlfriends, other mothers, lunches, drinks, horse riding. She maintained, not entirely by herself but certainly to a significant degree, a home and in 2005 evinced an intention to qualify to work as a security guard, followed that through, did various exams and tests, passed those, was licensed in early 2006 - perhaps it was March 2006 - but she worked from time to time over the next six months.
I think there is evidence that she worked at a Legends nightclub in Nowra, worked at the Royal Easter Show and in the immediate either weeks or months before the incident had worked three, possibly four shifts at the RSL club but given that history, Dr Heiner, first, would you agree that she is firstly, socially involved and to an acceptable level of interaction with others?"
The three doctors were asked in respect of this history: "The material I have provided you with, does that indicate a level of functional capacity beyond that referred to in your joint report?" Each responded affirmatively.
The primary concern I have with this evidence is that the history delineated in the question is necessarily incomplete. Ms Nicoll's pre-2006 problems are summarised inaccurately by the words "prior history of abuse" and as a whole the summary is unduly positive. Yet the effect of the question is to present a history that the doctors must accept irrespective of what Ms Nicoll has told or manifested to them, or what they have read from other reports, or what the evidence before the Court actually comprised. I do not think this history fairly represents the position of Ms Nicoll at the time of the assault.
I prefer the conclusion in the joint report. It reflects an agreed position of three of the doctors including Dr Heiner, who was Ms Nicoll's treating psychiatrist. Further, the agreement came after a period of reflection on the contents of the written draft, and involved a consideration of the views and information of the other experts shared as part of the process. The oral evidence on the other hand, resulted from the doctors being compelled to assume a certain set of facts, necessarily abridged and inaccurate, and allowed no period of reflection. To the extent that the doctors gave evidence contrary to their opinion contained in the joint report, the inconsistency would diminish the value of that evidence.
Dr Klug did not agree with all the contents of the joint report, but I prefer the conclusions reached by the other three doctors, particularly as they include the treating doctor, Dr Heiner, and because they are more consistent with the undeniable and significant problems faced by Ms Nicoll prior to the assault, problems referred to by Dr Klug, among others, in his earlier reports.
When the five years prior to the assault is considered, I do not accept that Ms Nicoll was functioning at a significantly higher level than she is now. So far as her employment is concerned, she had no earnings until 2006. Details of her earnings over 10 days at Easter 2006 were not in evidence. In the 2007 financial year (presumably in the 14 weeks before the assault) she earned $2,479. She did further training as a security guard in 2008, but her return to physical duties was unsuccessful. She was restricted to office work after the assaults. In the 2008 financial year she earned $6,133.
The joint report states that Ms Nicoll is unemployable. I accept that she is not capable of holding down a permanent job. Whether she is capable of occasionally being engaged in remunerative work is not so clear: she was able to earn as much as $10,000 after the assaults. But accepting unemployability, her pre-assault earnings do not fairly establish that she was employable in any substantial capacity prior to the assault. Even if it did, that she is now unemployable should be attributed to her pre-existing condition, as the Report concludes. I accept the joint report as to her pre-assault functionality.
(c) Past economic loss
I have concluded that Ms Nicoll has been affecting from earning an income for two years. This is longer than the joint report indicates. The submissions of the Insurer asserted one year, the Club one to two years.
The plaintiff asserts that lost income is $240 per week net totalling $24,960, less $6,133 earned, equals $18,827. The Insurer accepts this amount, although asserted a lesser period. The Club asserted a slightly lesser amount over the period, calculating the loss on the average earnings over the 14-week period from the start of the financial year to the date of the assault. In my view, on the limited financial history available, this is the correct approach. I would allow an amount of $18,564.
Past out-of-pocket expenses are $7,868.60 for the two-year period.
The agreed Fox v Wood component is $135.80 and past superannuation at 11% of $18,564 is $2,042.04.
This calculates to a total amount of $28,610.44.
(d) Non-economic loss
Non-economic loss is not available against the insurer. This amount is only relevant to the claim against Mr Dobeson and Mr Hammond.
Ms Nicoll submitted that she is entitled to 40% of a most extreme case. This is not an appropriate amount for the two-year period where Ms Nicoll is affected by the assault. The Club asserted an amount of 20% of a most extreme case. I accept that percentage as a guide in the claim against Mr Hammond and Mr Dobeson. Because the claim is based on an intentional tort, non-economic loss is not limited to a proportion of a most extreme case nor is there a statutory reduction. However, in my view, the appropriate amount of general damages is 20% of a most extreme case, without the statutory reduction, namely $110,300.
(e) Domestic assistance
There should be no award for past or future domestic assistance in accordance with the joint report.
Thus, the claims are assessed as follows:
(f) Against the Insurer
$
Past economic loss
18,564.00
Out-of-pocket expenses
7,868.60
Lost superannuation
2,042.04
Fox v Wood
135.80
Total
28,610.44
As this is less than the agreed payback of $91,746.38 there should be judgment in favour of the Insurer.
(g) Against the Club
As I have found in favour of the Club on liability, the proposed order should be judgment in favour of the Club.
(h) Mr Dobeson and Mr Hammond
The amount to be awarded in favour of Ms Nicoll is the amount calculated in respect of the claim against the Club, together with the amount for non-economic loss.
Exemplary damages are not compensatory but are awarded to punish the offender. They are not appropriate in this case because Mr Dobeson and Mr Hammond have already been punished according to the criminal law (see Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 at [40]-[43]).
Aggravated damages are compensatory, but reflect conduct that aggravates the damages caused by the tort. Ms Nicoll did not identify any conduct of Mr Dobeson or Mr Hammond since the assault that aggravated her loss. Both appear to have pleaded guilty at trial, and Mr Dobeson gave evidence in support of Ms Nicoll's claim.
I do not think any aggravated damages should be awarded. The amount of damages is shown in the following table:
$
Amount calculated in respect of claim against the Club
28,700.44
Non-economic loss
110,300.00
Total
139,000.44
H. The cross-claims and costs
Cross-claims have been made by the Club and the Insurer for contribution. As the Club has resisted liability, its cross-claim should be dismissed. So should the cross-claim by the Insurer against the Club.
But the cross-claim by the Insurer against Mr Dobeson and Mr Hammond is not so readily dismissed, as the Insurer has made payments to Ms Nicoll as a result of the damage. This matter received no attention in the submissions.
I propose to allow the parties to list the matter for mention at a convenient date to deal with any residual issues concerning the cross-claims and costs. I will also defer entry of these orders for two weeks to provide an opportunity for the parties to address any issues arising from orders 2 to 4, which were not the subject of specific submission.
I. Orders
The orders of the Court are:
(1) Judgment in favour of the Club against Ms Nicoll.
(2) Verdict for Ms Nicoll against the Insurer in the sum of $28,610.44.
(3) Note that the verdict sum is less than the agreed payback.
(4) Judgment in favour of the Insurer against Ms Nicoll.
(5) Judgment in favour of Ms Nicoll in the sum of $139,000.44 against Mr Dobeson and Mr Hammond.
(6) Matter to be re-listed on a date convenient to the parties for orders disposing of the cross-claims, and for orders in respect of costs.
(7) Defer entry of these orders under Uniform Civil Procedure Rule 36.11(2) until 30 July 2014.
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Decision last updated: 22 July 2014
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