Orcher v Bowcliff Pty Ltd
[2012] NSWSC 1088
•12 September 2012
Supreme Court
New South Wales
Medium Neutral Citation: Orcher v Bowcliff Pty Ltd [2012] NSWSC 1088 Hearing dates: 5-7 October 2010, 27 June-1 July 2011, 1-3 February 2012 Decision date: 12 September 2012 Jurisdiction: Common Law Before: Harrison J Decision: 1. Verdict for the plaintiff for $1,362,591.
2. Order the defendants to pay the plaintiff's costs.
3. Declare that, having regard to the extent of the fourth cross-defendant's responsibility for the plaintiff's loss and damage, it is just and equitable as between the parties to the fourth cross-claim that the fourth cross-defendant contribute 30 percent of the damages and costs which the plaintiff has become entitled to recover from the cross-claimants.
4. Grant liberty to all parties to apply on short notice for such orders or directions as may appear to be necessary with respect to any arithmetical aspects of my calculation of damages.
Catchwords: NEGLIGENCE - duty of care - patron of hotel injured when assaulted by employee of licensed premises outside hotel in the street - duty of occupier of licensed premises to patrons beyond the licensed premise - duty of security guards to patrons beyond the licensed premises Legislation Cited: Civil Liability Act 2002
Law Reform (Miscellaneous Provisions) Act 1946
Liquor Act 2007
Security Industries Act 1997Cases Cited: Adeels Palace Pty Ltd v Moubarek [2009] HCA 48; (2009) 239 CLR 420
Bowcliff Pty Ltd v QBE Insurance (Aust) Ltd; John James Orcher v QBE Insurance (Australia) Ltd [2011] NSWCA 18
Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91
Collingwood Hotel Pty Ltd v O'Reilly; Night Knowledge Security Pty Ltd v O'Reilly [2007] NSWCA 155
Cregan Hotel Management Pty Ltd v Hadaway [2011] NSWCA 338
Deatons Pty Ltd v Flew (1949) 50 SR (NSW) 50; (1949) 79 CLR 370
Desmond v Cullen [2001] NSWCA 238
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
Laresu Pty Ltd v Clark [2010] NSWCA 180
New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254
North Sydney Leagues Club Limited v Berecry [2002] NSWCA 154; (2002) Aust Torts Reports 81-657
Perkins v Redmond Co Pty Ltd [2007] NSWDC 147; (2007) 5 DCLR (NSW) 21
Portelli v Tabriska Pty Ltd [2009] NSWCA 17
Quintano v B W Rose Pty Ltd [2009] NSWSC 446
Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330
Rooty Hill RSL Club Ltd v Karimi [2009] NSWCA 2
Scott v Davis [2000] HCA 52; (2000) 204 CLR 333
Spedding v Nobles; Spedding v McNally [2007] NSWCA 29; (2007) 69 NSWLR 100
Sprod bnf v Public Relations Oriented Security Pty Ltd [2007] NSWCA 319; (2007) Aust Torts Reports 81-921
Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; (2006) 226 CLR 161
Wagstaff v Haslam [2007] NSWCA 28; (2007) 69 NSWLR 1
Voli v Inglewood Shire Council (1963) 110 CLR 74
Waverly Council v Ferreira [2005] NSWCA 418
Zorom Enterprises Pty Ltd (in liq) v Zabow [2007] NSWCA 106; (2007) 71 NSWLR 354Category: Principal judgment Parties: John James Orcher (Plaintiff)
Bowcliff Pty Ltd (t/as The Bridge Hotel Rozelle) (First Defendant)
Tamiano Paseka (Second Defendant)
Richard Francis Keough (Third Defendant)
QBE Insurance (Australia) Limited (Fourth Defendant)Representation: J E Sexton SC with C Heazlewood (Plaintiff)
R S Sheldon SC (First and Third Defendants)
S G Campbell SC with T Berberian (Fourth Defendant)
Carneys Lawyers (Plaintiff)
Wotton + Kearney (First and Third Defendants)
HWL Ebsworth (Fourth Defendant)
File Number(s): 2009/296392
Judgment
HIS HONOUR: Mr Orcher was seriously injured when he was assaulted by Tamiano Paseka outside the Bridge Hotel at Rozelle at about 4.50am on 25 November 2007. He brought proceedings against Mr Paseka and Bowcliff Pty Ltd, the corporate manifestation of the Bridge Hotel. Mr Paseka had from time to time been employed by the hotel as a glass collector. There is a live issue in the proceedings about whether or not Mr Paseka was actually performing duties working for the hotel at the time he assaulted Mr Orcher.
Mr Orcher's claims provoked a series of cross-claims. The first cross-claim was brought by Bowcliff against Australian Corporate Protection Pty Ltd trading as Australian Crowd Management Services (NSW) and Mr Paseka. The second cross-claim was brought by Australian Corporate Protection against DSSS Cousins Pty Ltd. The second cross-claim was subsequently amended to substitute QBE Insurance (Australia) Limited as the cross-defendant. It was alleged that QBE was the insurer of DSSS Cousins, which in the meantime had gone into liquidation. In due course, but before the hearing of the proceedings commenced before me on 5 October 2010, both cross-claims were settled. In relation to the first cross-claim there was a verdict and judgment for Australian Corporate Protection with an order that the parties to that cross-claim pay their own costs. In relation to the amended second cross-claim there was a verdict and judgment for QBE with an order that the parties to that cross-claim also pay their own costs.
On the third day of the hearing, Mr Orcher indicated that he wanted to join Richard Francis Keough, who was the licensee of the hotel at the time of the assault. That application was uncontroversial in isolation and in due course Mr Orcher filed a further amended statement of claim joining Mr Keogh as a third defendant. However, apparently as a consequence of this, Mr Orcher and Bowcliff each then filed notices of motion seeking various orders including, relevantly for present purposes, applications for leave pursuant to s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 to commence proceedings against QBE.
Although I refused the application to join QBE, the Court of Appeal took a different view: see Bowcliff Pty Ltd v QBE Insurance (Aust) Ltd; John James Orcher v QBE Insurance (Australia) Ltd [2011] NSWCA 18. QBE therefore became a party to the proceedings, along with Bowcliff and Mr Keough. Although Mr Paseka has always been a party, he has never appeared and he has taken no active part in the hearing.
Background
The Bridge Hotel is situated on the corner of Victoria Road and Wellington Street in Rozelle. On 24 and 25 November 2007, entry to and from the premises for patrons attending the hotel was through doors opening onto Wellington Street. A service station is located directly opposite this entrance to the hotel on the adjacent corner of Victoria Road and Wellington Street. Closed circuit television cameras had been installed in and around the premises and were operating on the evening of the events that give rise to these proceedings. These cameras recorded a series of views of various activities and incidents both inside the hotel and outside on the streets at the time. What is depicted in these video recordings has figured prominently in the cases presented by all parties.
The attack upon Mr Orcher is clearly recorded by at least one of the cameras operating at the time. The recording shows Mr Paseka violently punching Mr Orcher in the early hours of the morning, as he was standing on the corner of Victoria Road and Wellington Street. He fell immediately to the ground and remained motionless where he lay. It is not controversial, and I find as a fact, that Mr Paseka struck Mr Orcher as alleged and that he suffered serious injuries as a result. The precise nature and extent of his injuries, and their degree of connection to the assault upon him, are referred to in more detail later in these reasons.
The pleadings
It is important at an early stage to understand the way in which Mr Orcher frames his case against the various defendants in these circumstances. He alleges that Bowcliff was at all relevant times the occupier, and that it had the care, control and management, of the Bridge Hotel and that it was also Mr Paseka's employer. DSSS Cousins provided security services in the form of licensed security guards to, and for the benefit of, the Bridge Hotel.
Mr Orcher alleges that between approximately 4.00am and 4.30am on the morning of 25 November 2007 he was an invitee at the hotel and upon its premises. He alleges further that approximately ten minutes later he left the hotel premises and that "shortly after [he] was assaulted by [Mr Paseka] who punched [him] causing him to fall backwards and strike his head heavily upon the footpath outside the hotel premises". Paragraph 7 of the third further amended statement of claim is then in these terms:
"7. The ...assault occurred as a consequence of the negligence of [Bowcliff] and/or of the negligence of [Mr Keough] and/or the negligence of an employee of DSSS for which DSSS is vicariously liable and for which [QBE] is liable pursuant to s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946."
Mr Orcher's pleading then particularises the negligence that he alleges against each of the defendants. With respect to the negligence of Bowcliff and Mr Keough, the particulars alleged are that they:
"(a) Failed to request [Mr Paseka] to cease drinking alcohol on the night in question prior to the assault.
(b) Failed to request [Mr Paseka] to cease working on the night in question and leave the ...premises.
(c) Had prior knowledge of the fact that [Mr Paseka] assaulted a patron of the ...hotel approximately one week prior to the particular assault and took no steps to counsel [Mr Paseka] or alternatively dismiss [him] from its employ.
(d) Failed to request its employees to stop serving alcohol to [Mr Paseka] prior to the subject assault.
(e) Permitted [Mr Paseka] to assault [Mr Orcher] and/or failed to take any or any reasonable steps to prevent him from assaulting [Mr Orcher]."
Mr Paseka's negligence was particularised as follows:
"(a) Assaulted [Mr Orcher] by punching him in the head.
(b) Consumed an excessive amount of alcohol whilst working at the ...premises and being under the influence of alcohol at the time of the assault.
(c) [Mr Paseka] showed a propensity to act violently on previous occasions and assault other patrons of the ...hotel premises.
(d) Knocking [Mr Orcher] to the ground."
Finally, it is alleged by Mr Orcher against QBE that:
"(a) An employee of DSSS permitted [Mr Paseka], a person who that employee knew or ought to have known was not qualified or licensed to act as a security guard, to cross Wellington Street with the apparent intention of intervening in an altercation involving [Mr Orcher].
(b) An employee of DSSS permitted [Mr Paseka] to assault [Mr Orcher].
(c) An employee of DSSS failed to take any or any reasonable steps to prevent [Mr Paseka] from assaulting [Mr Orcher]."
The significant amendment to the pleadings that resulted in the current version of the statement of claim is contained in the following paragraph and its extensive particulars:
"9A Further and in the alternative, the...assault by [Mr Paseka] was an act within the scope of [his] duties...as an employee of [Bowcliff], or alternatively was an act incidental to the scope of those duties such that [Mr Keough], or alternatively [Bowcliff] is vicariously liable for the loss and damage suffered by [Mr Orcher] as a result of the...assault.
PARTICULARS OF VICARIOUS LIABILITY OF [MR KEOUGH]
(I) In 2007, including 24 and 25 November 2007, employees at law of the first defendant working at the Bridge Hotel, including [Mr Paseka], were under the day to day orders and control and supervision of [Mr Keough].
(ii) Statutory permission for conduct otherwise prohibited by statute, namely sale of liquor, is given to the licensee or an agent or servant of the licensee, not to the employee at law of the natural persons engaging in that conduct: Liquor Act, 1982 s 122 and s 4 'person authorised to sell liquor'.
(iii) Unless the employer at law of a natural person who engages in the sale of liquor is an agent or servant of the licensee, that natural person selling liquor would breach s 122.
(iv) Statutory obligations associated with or related to that statutory permission are imposed on the licensee, not on either (a) the agent or servant of the licensee within the meaning of s 122 or (b) the employer at law of natural persons engaging in conduct which is or is related to the sale of liquor: Liquor Act 1982 s 125(1)(b).
(v) Accordingly, conduct by natural persons relevant to the performance or satisfaction of statutory obligations imposed on the licensee, including pursuant to s 125(1)(b), is conduct in compliance by the licensee of the licensee's statutory obligations.
(vi) Further, conduct by natural persons relevant to the performance or satisfaction of undertakings given by the licensee in relation to the licence, is conduct in furtherance of the commercial interests of the licensee in the licence.
(vii) The conduct of [Mr Paseka] in punching [Mr Orcher] was in furtherance of the interests of [Mr Keough] in respect of (a) [Mr Keough's] obligations as licensee pursuant to s 125(1)(b) and (b) [Mr Keough's] commercial interests as holder of [the] licence relating to the Bridge Hotel."
Bowcliff and Mr Keough filed a joint defence. Among other things, they admitted that Mr Paseka was "at all material times ... an employee of [Bowcliff]". The claim was otherwise denied. In addition, they alleged that Mr Orcher was guilty of contributory negligence which they particularised as follows:
"a. Inciting the incident in which he was assaulted by provoking Mr Paseka.
b. Failing to take reasonable care for his own safety in the circumstances by provoking [Mr Paseka].
c. Failing to leave the vicinity of the premises in a quiet and orderly manner.
d. Failing to inform staff or management, thus putting them on notice, of an impending threat or that he had been aggressively approached by [Mr Paseka].
e. Failing to call the police, in circumstances where he failed to inform staff or management of an impending threat or that he had been aggressively approached by [Mr Paseka]."
Paragraphs 15 and 16 of the defence filed by Bowcliff and Mr Keough should also be noted. They contend that Mr Orcher's injuries were caused or contributed to by Mr Paseka's criminal act over which they had no control, and in a location and area outside the hotel premises over which Bowcliff neither exercised nor was entitled or obliged to exercise control. Moreover they say that Mr Paseka was not actually working for Bowcliff at the time of the assault or, if he was, the assault upon Mr Orcher was conduct that was outside the scope of his employment, was not an act authorised by Bowcliff or Mr Keough and was not in furtherance of their interests. They say further that nothing that they did or failed to do contributed to the commission of Mr Paseka's criminal act, particularly having regard to the fact that it occurred beyond the boundaries of the hotel premises.
Bowcliff and Mr Keough also say that the security person present on the footpath outside the hotel immediately prior to or during the assault was a person who was not employed by Bowcliff so that it is not vicariously or otherwise liable for or in respect of the acts or omissions of the security person prior to or during the assault. This is because the security person concerned was employed by DSSS Cousins and was under its complete direction and control at the relevant time.
By the terms of the remaining cross-claim between Bowcliff and Mr Keough as cross-claimants and QBE as cross-defendant, Bowcliff and Mr Keough seeks contribution and/or indemnity from QBE pursuant to the terms of s 5 of the Law Reform (Miscellaneous Provisions) Act. The cross-claimants allege that DSSS Cousins is a tortfeasor who would if sued by Mr Orcher have been liable in respect of the same damage as that for which Mr Orcher seeks to make them liable.
It will be immediately apparent that the question of whether or not Bowcliff or Mr Keough or QBE is responsible for the consequences of an assault upon Mr Orcher, which occurred beyond the boundaries of the hotel, and in fact on the corner of the street on the opposite side of the road, is a significantly controversial issue in these proceedings. The other significant issue concerns whether or not Mr Paseka was employed by the hotel and still performing duties for it at the time he assaulted Mr Orcher.
The evidence - liability
Mr Orcher
Mr Orcher made a statement dated 1 June 2010 that was tendered without objection. He was born in 1979. On the evening of 24 November 2007 he was in bed asleep with his partner Cecily Williams. At some time during the night Ms Williams left and went to the Bridge Hotel. Then, in the early hours of the following morning, Mr Orcher went there to bring her home. He entered the hotel but did not stay for a drink. A short time later they both left the hotel. Ms Williams went to the ATM in the service station across the street from the hotel. Mr Orcher's next recollection is waking up in hospital.
In cross-examination Mr Orcher said that he had no recollection of either driving to, or arriving at, the Bridge Hotel. He agreed that he had some limited memory for events that occurred there on the night he was assaulted. He was asked some questions about whether he recalled having a particular conversation with Mr Paseka at the hotel that morning. That cross-examination was as follows:
"Q. On the night that you went to the Bridge Hotel, you had a conversation with a fellow whose name you thought was Damien, didn't you?
A. Yeah, I thought that was Paseka.
Q. You thought it was Paseka?
A. Yes.
Q. You remember having a conversation?
A. Not talking. He was yelling at me the whole time. It's not like we're talking like this.
Q. Didn't you have a conversation with him inside the hotel?
A. It wasn't a conversation.
Q. He just yelled at you?
A. Pretty much, yeah.
Q. Well, did he say to you, "Are you John"?
A. Yep.
Q. And you said, "Yeah. Why"?
A. Yeah.
Q. And he said, "You got Matt Koh locked up"?
A. That's his friend.
Q. Is that what you said?
A. That's his friend. That's not what I said. That's what he said to me.
Q. I'm sorry, you're right. But he definitely said that?
A. Mm.
Q. Did you know who Matt Koh was?
A. Yeah. Someone who smashed the house to try to come in and bash me at me ex girlfriend's house and we got him charged and he only got six months in gaol for that and smashed the house up.
Q. And you knew all that as soon as this person Paseka mentioned his name?
A. He was a friend of his, yeah.
Q. You knew who Matt Koh was as soon as he said the name, didn't you?
A. Mm hmm.
Q. And did Mr Paseka yell this, "You got Matt Koh locked up", at you?
A. Mm hmm. "You're a dog", stuff like that. Gaol talk I call it.
Q. He called you a dog, too, did he?
A. That's what gaol people talk like.
Q. I see. It struck you that Mr Paseka was pretty angry with you for getting his friend Matt Koh locked up; is that right?
A. Obviously, yeah.
*****
Q. And did you say to him, "So what are you going to do about it"?
A. I said, "So what are you going to do"?
*****
Q. You didn't say that?
A. No. I said, "What are you going to do about it?" So what, he did the wrong thing basically.
Q. Did you think that Mr Paseka was a bit angry with you for getting his mate locked up?
A. Definitely.
Q. He gave you that impression, did he?
A. Mm hmm.
Q. How long before 24 November 2007 did this break in take place?
A. Five years ago, four five, four. I don't know, it's a while ago.
Q. Anyway, after you said, "What are you going to do about it", nothing came of it; is that right?
A. Well, he just kept yelling at me. He was yelling names at me the whole time.
Q. Within the pub?
A. Yeah, within the pub. You pay attention if he says something.
*****
Q. So is it fair to say that things got fairly heated between you and Mr Paseka?
A. I didn't pay attention to him. He just kept yelling at me."
Mr Orcher denied that at any stage before he finally left someone apparently employed by the hotel had approached him telling him to calm down or he would be asked to leave. He agreed that he had been a regular at the hotel for a couple of years or so before the assault but did not recall having seen Mr Paseka there during his visits to the hotel during that time. It is otherwise conceded by Mr Orcher that he has no reliable recollection of events between leaving the hotel and waking up in hospital.
Cecily Williams
Cecily Williams made a statement dated 27 August 2010 that was tendered without objection. It attached two earlier statements dated 25 November 2007 and 5 December 2007 given by Ms Williams to police investigating the assault on Mr Orcher. In the first of those statements Ms Williams said that she arrived at the Bridge Hotel alone at about 1.45am on 25 November 2007. She drank there with friends until approximately 4.30am. Mr Orcher walked into the hotel at this time and approached her. He asked her to "come out the front". She gathered that he had expected her home somewhat earlier. The following three paragraphs of Ms Williams' statement should be noted as follows:
"16. I started to walk to the front of the hotel and [Mr Orcher] opened the door for me. I led the way and walked out the front door. I saw people outside the front entry door and I saw the bouncer. He was an older Islander guy and a bit chubby. I don't know the guy personally but I see him all the time at the hotel. I also saw the Islander guy who hit Tyrone previously. When I walked out [Mr Orcher] followed. I walked across the road to where [the] Caltex Service Station was. [Mr Orcher] asked me for money and I did not have any with me at the time. I told him that I would withdraw money from the Caltex Service Station. I went into the Caltex and withdrew money out. [Mr Orcher] waited and stood on the corner of Victoria Road and Wellington Road.
17. After taking money out I walked back to where [Mr Orcher] was standing. I saw [Mr Orcher] laying on the ground and unconscious. He was laying flat on his back and his arms rested beside him. His eyes were shut and there was blood coming slightly from his eyes, which was around his tear duct area. His left ear was bleeding. There was blood on the back of his head. There were patches of blood around his head area from where he had fallen. He was lying partly on the footpath. His feet were on the roadway.
18. When I saw [Mr Orcher] lying on the ground I saw the guy who originally hit Tyrone standing on the corner of Bridge Hotel. He was standing next to an Islander guy."
Ms Williams became unable to complete that statement but continued the narrative in her later statement. She said that when she went to withdraw her money, she left Mr Orcher standing alone on the corner of Victoria Road and Wellington Street, less than one metre from the brick fence that runs along the side of the service station. When she walked out of the service station she could not see him. She said he was not standing where she had left him. She said, "I was halfway between the service station doors and the footpath on Victoria Road when I heard something." According to Ms Williams, it was a male voice yelling "woman basher".
Ms Williams said that she walked then at a fast pace to where she had left Mr Orcher. She saw him facing towards the Bridge Hotel on Wellington Street. She said he was "about two metres onto the roadway from the footpath with his back towards me". His arms were by his side. Her statement then continued in these terms:
"I saw a male of Islander appearance who I know as Damien standing immediately in front of [Mr Orcher]. He was wearing a chequered blue and white shirt and blue jeans. At this moment I saw Damien strike [Mr Orcher] with his right hand, which was clenched in a fist, to the left hand side of [Mr Orcher's] face. I saw [Mr Orcher] fall backwards and hit the road with great force. He fell straight back, his body was straight when he fell."
Ms Williams said that she then yelled out, "What the fuck have you done? This is my baby's father." She said that "Damien" yelled back in an aggressive tone, "He's a woman basher." (Mr Paseka's full name is Tamiano Paseka. I was not specifically addressed upon the point, but it would appear to be uncontroversial that Ms Williams' references to the man called "Damien" were references to Mr Paseka).
In her original statement to the police Ms Williams gave evidence of an incident at the Bridge Hotel about one week earlier. She described how an Islander male assaulted a man she knew as Tyrone O'Reilly. It appears to be her evidence that this Islander male was Mr Paseka. She also told Senior Constable Couldrey at the scene that "it's happened again".
Ms Williams agreed in cross-examination that she had previously seen Mr Paseka at the hotel before the night on which Mr Orcher was punched. She also agreed that she had seen him picking up glasses at the hotel. She denied that she had been asked to keep her voice down when she was attempting to withdraw cash from the ATM in the hotel. She also denied that at that time she had been arguing with Mr Orcher or that any staff of the hotel had asked her to leave. She said that when she originally told the police that she did not know who had punched Mr Orcher, it was because she "was in a bad state of mind".
Ms Williams was cross-examined about what appeared to be differences between what she had said in her various statements. She explained the differences in the following questions and answers:
"Q. By the time you got back, Mr Orcher was on the ground, wasn't he?
A. No. I said that in my first statement, sir, because I was questioning what I had said. Because it was surreal, you know. Like he nearly dies off one punch. I was questioning myself and to you know, did I see him really with what I saw?
Q. Well, you were still distressed when you made your second statement, weren't you?
A. Yeah, but I was clearer, like I'd said, because I was so emotional at that time. I had no choice but to deal with it. I was trying to raise my 18-month-old daughter. So I had, by that time, no choice but to slowly get through it, do you know what I mean?"
Ms Williams confirmed her description of the assault on Mr Orcher in the following evidence:
"Q. So when you got to the top of that shortcut, Mr Orcher was clearly visible to you; is that right?
A. Correct.
Q. Was there anybody else near him?
A. When I come up, Paseka was yelling something across the road at him, towards him, because John was looking at him.
Q. Was did Mr Orcher say, if anything?
A. No, I remember him looking in that direction. I didn't hear any I know John's tone of voice if it was him calling out. But I'd rushed because someone was calling towards, and I could see him looking.
Q. Could you hear what was being said?
A. Yes.
Q. Was Mr Paseka yelling things like "dog"?
A. No.
Q. And he was yelling things that were personally insulting to Mr Orcher; is that right?
A. Correct.
Q. So you got to the top of the shortcut?
A. Yeah.
Q. And then I take it that Mr Paseka at some point crossed the road?
A. It happened so quick. John stepped out on the road and he come straight across the road and he sort of and before even like a proper aggression, tone or argument could happen, whack.
Q. Very quick?
A. Very quick. He hit him when he hit him, it was his right hand. He hit him, it was John's left here, because when he hit him, it split him here when I got to him (indicates). It happened that quick. Tamiano had hit him my mind just I sort of I seen the connect, bang, done. I heard the thump and I just ran up to Tamiano and I started hitting him.
Q. But from the time of you getting to the top of this shortcut that you had taken...
A. Yes.
Q. ...until the punch that hit Mr Orcher, it was a matter of seconds; would you agree with that?
A. Within a minute, yeah. It's sort of within yeah. So I got up there something, I heard "Woman basher" was called out, and he stepped on the road and then he come across and it just happen.
*****
Q. What you do remember was you got to the top and heard "woman basher" called out?
A. Yeah, looked across the road.
Q. You saw Mr Paseka?
A. Yes. He come diagonal straight across the road. There was no going to the lights to cross the road or anything, just come
Q. Straight across?
A. Yeah.
Q. I'm not suggesting that you would or you should, but you couldn't have done anything to stop it in the time available, could you?
A. No, I couldn't."
Ms Williams also said that shortly before he crossed the road, Mr Paseka had been standing effectively shoulder-to-shoulder with Mr Paea, a security guard employed by DSSS Cousins. Mr Orcher relies upon that evidence in order to inculpate QBE upon the basis of DSSS Cousins' responsibility for the alleged failures of Mr Paea. It was as follows:
"Q. You told Mr Sexton when he asked you some questions at the end last time, do you remember that, that there was a security guard outside the hotel near the front door?
A. Correct.
Q. Was Mr Paseka when you first saw him, was he standing near that security guard?
A. Yeah.
Q. How close?
A. Real close. The security guard was standing say we're looking at the front door on Wellington Street.
Q. Yes?
A. Paseka was standing at the stairs of the front entrance. The bouncer was standing right there, like a bouncer does at front doors.
Q. So we can get the idea about this, are you saying that at the time you came out of the Caltex service station Mr Paseka and the security guard were standing more or less side by side?
A. Not far from each other.
Q. Can you tell me what not far from each other means?
A. I don't know if it was side by side as in shoulder and shoulder. They walked out and they are within distance, like within a metre of each other, anyways.
Q. Quite close to each other?
A. Yeah.
Q. One could have reached out and touched the other?
A. On the shoulder."
Ms Williams said that this was something that she was able to see as she was coming up from the concrete driveway of the service station, just before the garden. She denied that her evidence about this was untrue, but she conceded that it was not something that she had told the police when they spoke to her.
Senior Constable Amy Couldrey
Senior Constable Amy Couldrey gave evidence. She attended the scene of the assault after it had taken place. In such circumstances, through no fault of hers, none of her evidence was particularly helpful or relevant to the issues to be decided in this case by me.
Exhibits "M" and "N"
Exhibits "M" and "N" became central to Mr Orcher's case. It is necessary to refer to each of them in some detail. The first is a document headed "Bridge Hotel Security" that commences with the opening direction, "while controlling the entrance at the front door the following instructions will be adhered to". The instructions that are then listed include a number that are potentially presently relevant:
Maintain vigilance
Prevent all alcohol, and glass from leaving the premises
Alert management in the case of all incidents
If a patron is aggressive towards you or is focused on you, it is best to go inside and let another guard or management deal with him as the focus of his aggression - you - is now taken out of the equation
Also, do not get into arguments with patrons no matter that they may be unreasonable. Do not get into a fight nor strike anyone. We are here to dissolve arguments and not to participate. Aggression by security will not be tolerated and you will not be working here
Under no circumstances are you permitted to consume any alcohol while working
Under our licence we have an undertaking to ensure patrons depart the hotel and neighbourhood in a quiet and orderly manner and to ensure that they do not disturb the neighbourhood. To this end on busy nights we need to patrol outside and in the vicinity of the premises to ensure this. If you cannot leave your station at the time of an incident, then notify other staff or management.
The second is a Liquor Administration Board of New South Wales Licence History Sheet relating to the Bridge Hotel. Among other things, this document contains a list of what are described as "special conditions" attaching to the licence for the Bridge Hotel (but which Mr Keough insisted were no more than "undertakings" that had been given to the Board). Some of those conditions or undertakings are as follows:
"4) That the licensee shall take all reasonable steps to ensure: -
a) that the patrons depart the hotel and the neighbourhood in a quiet and orderly manner; and
b) that patrons do not congregate on the footpaths of the street surrounding the hotel, to the disturbance of the neighbourhood.
5) That the licensee shall keep the hotel surrounds free of glass and clear all debris left by patrons.
6) That no glasses or other drinking vessels shall be removed from the premises by patrons.
7) That security personnel shall be employed at the hotel on the following nights outlined below: -
Wednesday, Thursday, Friday, Saturday and Sunday nights - at least one door person.
On any evening when it is anticipated that large numbers will attend the premises, three door persons shall be in attendance.
On each of those nights, the door persons shall be employed from a time commencing no later than 9.00pm until closing time and/or until all patrons have departed the premises and the neighbourhood in a quiet and orderly manner.
On the occasions that more than one door person is employed, those door persons shall patrol outside the premises and in the vicinity of the premises to ensure that the abovementioned undertakings are complied with."
Tamiano Paseka
Following the incident, police interviewed Mr Paseka. This took place on 18 February 2008. Selected portions of that recorded interview became exhibit "Q" in these proceedings following a contested interlocutory application: see Orcher v Bowcliff Pty Ltd (No 3) [2011] NSWSC 172. The limitations that I referred to in that judgment upon the use to which Mr Paseka's recorded answers can be put in this case should be noted. Other selected portions of the interview became exhibit "AC". Neither exhibit became evidence in these proceedings against QBE.
Mr Paseka told police that he arrived at the Bridge Hotel somewhere between 11.00pm and midnight. He said he "just started working". He then said, "[a]nd then it was getting too, oh, a bit quiet so having a few drinks, um, and I think I bit, I think I had a bit too much". He went on to say the following:
"Yeah. I went to the manager, I told him I'm not working... So I stayed and I started drinking and I went outside for a smoke, yeah, I went outside for a smoke, just chilling with the bouncers there...And then that's when I saw, well, I saw that guy and the Abo guy talking to oh, arguing over some girl...And they were pretty loud. I walked over...and then...they started talking about, 'Oh, he's trying to hit on him', or, 'he's trying to hit on her'..."
Mr Paseka said that Mr Orcher spoke these words. A little later in the conversation Mr Orcher is reported to have said, "Mate, do you want a go, I'll take all of yous on now." Mr Paseka said that Mr Orcher then "started jumping around". He had his hands up and it looked "like he was going to throw a hook or something". Mr Paseka then said this:
"I was just standing there. I walked back, I took a step back, walked forward and then he said something to me and as soon as he said something I just hit him."
Mr Paseka also told the police that at the time he had been drinking. When asked how many drinks he had had Mr Paseka responded, "six, seven...I wouldn't have a clue... [p]robably eight or nine...I just kept going for a smoke break outside." He then gave the following answers as part of the police interview:
"Q213 Ah hmm.
A ...told him I'm a bit wasted, I'm not going to work. And he goes,
'Yeah, no worries, it's all good, you just go, hang around -
Q214 Ah hmm.
A ...make sure you don't do anything.' And then, yeah, he just told
me to go chill. So I started drinking when he told me to go chill...
*****
Q236And, and could you, what were they saying?
A Oh, they were just arguing, "Why are you, why are you trying to hit on my missus." And then he turned around and goes, "I'm not trying to hit on your missus, I know that girl." Something, blah blah blah, I just heard it, and then that's when he started going, "Oh, mate, calm down, calm down. And then that's when he started getting, jumping up with his hands open.
Q237 Ah hmm.
A And then that's when he started to say something and I just turned around and just hooked him.
Q238So when you, when you saw them talking on the corner -
A Ah hmm.
Q238... at what point did you go over?
A When they started kind of talking a bit loud."
Exhibit "R"
Mr Paseka's state of sobriety has arisen as an issue in these proceedings and intersects with the question of whether or not he was, or could have been, working for the hotel at the time he assaulted Mr Orcher. Exhibit "R" was a copy of the Bridge Hotel House Policies. No part of that document contained material that is particularly relevant to the current dispute, with the exception of the section headed "Alcohol". It is as follows:
"Under no circumstances are staff to be under the influence of alcohol whilst working. This means that you cannot drink whilst you are at work. It also means that you cannot arrive for work having been drinking. It also means that you cannot accept a drink whilst working from a customer. If you turn up for your shift under the influence of alcohol or you appear to be so during your shift then your shift will be stopped immediately. If you think that you are ok to work that is irrelevant to us. Our policy is that you not be under the influence of alcohol - end of story. As a staff member you are making decisions on other people and various situations and you are expected to be on your game. At the end of your shift you are provided with one drink if you wish. All staff, just like everyone else, will be subject to RSA and there are no exceptions. Do not be pressured by another staff member to give them one more drink if you believe you would be breaching Responsible Service of Alcohol guidelines. We will send this person home. Do not pressure any staff member to give you a drink if they have decided you have had enough. RSA is for all. We appreciate that as we are the late licence of the area and that with 23 pubs up the road and scores of restaurants, many hospitality staff come here after work. But be very clear, you will be treated as any other member of the public in regard to RSA - again no exceptions."
Exhibit "S"
Exhibit "S" was a document headed "Regulations and Guidelines". It contains rules governing the conduct of staff employed at the Bridge Hotel. None appears to me to inform in any way the resolution of the current dispute.
Tyrone William O'Reilly
Mr O'Reilly said that he started drinking at the Bridge Hotel in about 2006. He was there on 17 November 2007. He was "pretty intoxicated". He became involved in a scuffle inside the hotel. Tables were knocked over and drinks went flying. He was then escorted from the hotel by two security guards. They told him it was time to leave. He then gave this evidence:
"Q. As you were leaving, did something happen?
A. Yeah. Me and another patron had a sort of a scuffle inside the pub, you know, tables were knocked over, drinks went flying.
Q. Did anyone speak to you?
A. Yeah. I was escorted by two security guards out of the pub. They said, 'It's time for you to leave'.
Q. Did you leave?
A. Yeah.
Q. Once you got outside did something happen?
A. Yeah. Well, I got outside on the footpath and someone started yelling from behind. I've turned around and told them to fuck off, and then I've turned away to walk away and, yeah, I was knocked out cold.
Q. How far away from the door were you when this happened?
A. Couple of metres.
Q. On the footpath in front of the door?
A. Yeah.
Q. Where were the security guards that had spoken to you and asked you to leave?
A. They were there, they were on the step inside the pub like."
Mr O'Reilly was unable to identify his assailant. The assault occurred just outside the Wellington Street entrance to the hotel. He agreed that his memory for events in 2006 and 2007 was not good.
Mr Keough
Mr Keough made a statement that became evidence in the proceedings. He was cross-examined at some length. He is a director of Bowcliff and the licensee of the Bridge Hotel. He has worked in the hotel industry for nearly 30 years. He has been the licensee of the Bridge Hotel since 1986. He came to know both Mr Orcher and Mr Paseka in that capacity. Mr Orcher had been a patron of the hotel for approximately two years when the assault occurred. Mr Keough was upstairs at the hotel asleep at the time.
Mr Keough said that Mr Paseka commenced employment at the hotel in approximately August 2007 as a casual glass collector. His role was essentially to ensure that the areas of the hotel frequented by patrons were kept clean and tidy. He did not serve drinks or provide security. He was not qualified to work as a security guard and Mr Keough said that he never performed that work. Mr Keough said that Mr Paseka was not known to him ever to have been violent or to have been involved in any previous altercations with any person. Mr Keough said that he had never received any previous complaints about Mr Paseka either as a glass collector or as a patron. In particular, Mr Keough denied that he witnessed Mr Paseka assault Tyrone O'Reilly at the hotel on 17 November 2007. Mr O'Reilly had been barred from the hotel at the time of Mr Orcher's assault and for some time prior to it.
Mr Keough said that Mr Paseka started work at approximately "12.00am", which I take to mean midnight on 24 November 2007. Ben Davies was the hotel duty manager at the time. Mr Keough saw Mr Paseka as a paying customer sitting at a table drinking with friends between 3.00am and 4.00am the following morning. He said that he appeared to be in good spirits and was well-behaved. He did not appear to be intoxicated. He said that he did not see or hear anything that would have warranted his removal from the hotel.
Mr Keough said that after Mr Paseka stopped work and started drinking with friends, he would not be permitted by Mr Keough to have any role in the running of the hotel. He would not be permitted to pick up glasses or ashtrays in those circumstances.
Part of the CCTV footage of activities outside the hotel at the door that opens out onto Wellington Street on the morning of the assault shows Mr Paseka taking a bottle from a patron. This occurred at approximately 4.47:44am. Mr Keough said that such an activity was not part of Mr Paseka's job at the hotel. He was in any event not permitted to work if he had had anything to drink.
Mr Keough next saw Mr Paseka at about midday that day. He appeared to be intoxicated. Mr Keough said that he had never had a complaint made to him about Mr Paseka's conduct until the assault upon Mr Orcher.
Mr Keough was cross-examined on behalf of QBE about the security arrangements and rosters. He said this:
"That I would talk with the security company and say that we want, you know, this many guards and it's going to be busy, there's a big band in here tonight, we expect a better presence there, someone near the stage at times, or we have got a big function coming afterwards and they will probably go into the back bar so we will need a presence there. They would also have to use their head to see where the majority of the people were, and it wasn't a hard and fast system, it was something that they would really have to take on themselves, but obviously if I walked into a bar and I saw it was packed there and I would see there was no security, I would say, "Look, we need someone in here." Sometimes I needed more than three, sometimes we had 10 security, it really depended on the night. They are rare occasions."
Mr Keough said that he expected the trained security guards to operate together as a team. He said that he expected them working together to contact each other to deal with issues that might arise. He gave the following evidence:
"Q. Mr Keough, so far as the system in place on this occasion is concerned, would you agree that you might want to go across the street and find out if there was anything about which the police should be called?
A. Sure, yes.
Q. And if there were a number of people across the road involved in something which had caused concern to a security guard, you would agree that the hotel's system would allow and provide for two guards going over to have a look?
A. Depending on the situation, yeah.
Q. That might be a situation where you might depend upon the judgment of the guards who have had the training and the licences; would that be correct?
A. Yes.
Q. But it would certainly be within your expectation as the licensee of the hotel that they might think it appropriate for them both to go over, would you agree?
A. Sure. We're assuming, of course, that they were patrons of the hotel.
Q. Yes, we are assuming that.
A. Yeah."
A little later Mr Keough agreed with the cross-examiner as follows:
"Q. Let's assume that what the security guards have detected across the road is a group of a few patrons who have left the hotel gathering across the road and without knowing precisely what has occurred the security guard detects that some kind of incident has happened or is developing. Now, adding that to the various assumptions I have asked you to make, you agree with me that what we see on the video I played to you of the actions of the three security guards is consistent with the implementation of the security system that the hotel had in place on that night?
A. Yes, but it's also part of their training and their operations manager would have instructed them. It's not just the hotel thing; it's part of their operating procedure for any security guard."
Mr Keough was cross-examined at some length by Mr Sexton of senior counsel for Mr Orcher. Mr Keough agreed "absolutely" that it was very important that staff members at the Bridge Hotel did not get into confrontations with patrons. He also agreed that it was important for a competent hotelier not to have inebriated staff members interacting with patrons and that the safety of hotel patrons was paramount.
Mr Keough was asked about whether Mr Paseka had been drinking:
"Q. If you go to paragraph 32 of your statement you say there that from approximately 3.00am, and that's the time when you say Mr Paseka stopped work; is that right?
A. Yes.
Q. Until you left the hotel at 4.00 you saw him sitting in the hotel at a table; is that right?
A. Yes.
Q. He remained as a paying customer; right?
A. Yes.
Q. He did not appear to be intoxicated?
A. No.
Q. You say in this statement, at least now by implication, that he finished work at 3.00am; is that right?
A. I think that's what the meaning is.
Q. You don't say in this statement why he finished work, do you?
A. No, I don't think so.
Q. The reason he finished work at 3.00am was because Mr Davies insisted that he stop work. That's right, isn't it?
A. Yes.
Q. He insisted that Mr Paseka stop work, according to Mr Davies because Mr Paseka told him he had been drinking?
A. Yes.
Q. You don't say anything about that in this statement?
A. Well, not in that paragraph. I assume I don't.
Q. Mr Paseka told Mr Davies and Mr Davies told you that Mr Paseka said he was so inebriated he wasn't capable of continuing to work, didn't he?
A. He said he had been drinking, had a couple of drinks, is my understanding.
Q. When did you discuss this with Mr Davies?
A. He told me not long after.
Q. I'm sorry?
A. I think he told me around about that time.
Q. When you say around about that time, you mean around about 3.00am on the 27th?
A. Yes, approximately. I can't recall exactly when he told me.
Q. At 3.00am on the 27th you knew that Mr Paseka had been drinking while working; is that right?
A. Approximately, not at 3.00am.
Q. Before 4.00am, anyway?
A. Yes, yes.
Q. And knowing that he had been drinking while working, you permitted him to remain at the hotel?
A. Yes.
Q. Did you make any inquiry about how much he had had to drink?
A. Yes, I spoke to Ben Davies about that.
Q. And what did Mr Davies tell you?
A. That Paseka had told him that he had one drink one drink or a couple of drinks. I said, "What is he like?" He said, 'He seems fine, but I put him off straight away because he was drinking'."
Mr Lokotui was a security guard on duty outside the hotel door in Wellington Street when the assault occurred. He was one of two such people employed directly by Bowcliff and not by DSSS Cousins with whom Bowliff had a contract for the supply of security personnel for the hotel. Mr Keough agreed that Mr Lokotui's duties included intervening in physical altercations between patrons of the hotel inside the hotel. He was then questioned on the issue of responsibility for altercations outside the hotel in the following terms:
"Q. Do you agree that Mr Lokotui's duties included intervening in physical altercations between patrons of the hotel in the vicinity of the hotel?
A. I imagine it would then determine what the vicinity is and what the altercation is. If there's one punch and you're inside it's pretty hard to intervene.
Q. I am not asking you about the specific circumstances of this case, I am asking you about Mr Lokotui's duties generally. Do you understand?
A. Well, the duties generally are we don't want anyone we want patrons safe and he is there to make sure that patrons are safe, and if there's something happening down the road that is of a violent nature I would assume that the first thing you would do would be to ring the police.
Q. On the assumption that the obligations of Bowcliff Pty Limited as the company conducting a licensed premises business, do you understand what I am putting to you?
A. Yes.
Q. And on the assumption that you as the licensee have obligations within the vicinity of the hotel premises, do you understand what I am putting to you?
A. We have obligations. We don't have authority.
Q. I am just asking you to assume that as a matter of law you have obligations which go beyond the Real Property Act boundary of the hotel. Do you understand what I am putting to you?
A. I will assume that. Are we putting a definition on how far?
Q. I am asking you to assume some point beyond the Real Property Act boundary. Do you understand?
A. Yes.
Q. Would it be part of Mr Lokotui's duties to intervene in a physical altercation within that area?
A. We would always try and stop anyone getting injured if possible, but again these things depend on circumstances. If there's 30 people having a brawl out there...".
A further series of questions were directed to Mr Keough on the extent of Mr Lokotui's knowledge or understanding of the duties that Mr Paseka was employed to perform when working for the hotel. He ultimately gave these answers:
"Q. Do you now say that Mr Lokotui didn't know that it was not part of Mr Paseka's job to take bottles from people outside the hotel?
A. I would assume he knew. I didn't inform him. It was obvious that wasn't his job and it would be obvious to bar staff there, to Mr Lokotui, to me.
Q. And matters of position
A. I wouldn't have briefed Mr Lokotui on what Mr Paseka couldn't do.
Q. And that was the position before 24 November 2007, wasn't it?
A. Yes, yes."
Mr Keough agreed that he knew before Mr Orcher was assaulted that Mr Davies, the bar manager, had insisted that Mr Paseka stop work.
Mr Keough was asked whether or not in 2007 it was sometimes the practice of security staff retained by the hotel to cross Wellington Street to deal with incidents occurring there. He responded as follows:
"If there was unruly behaviour and people were loud and things like that you might go over and calm them down, yes. You might not have to go over there. You may go halfway, you may go over there and say, "Calm down, fellows, it's too loud." If you are talking about an altercation, it would depend on whether how long after, where was it located, did they go somewhere else. If anyone's safety was in jeopardy I would always go over, but I don't know that security always would."
Much of the CCTV evidence was replayed to Mr Keough during his cross-examination and his comments were sought on much of it. Part of what he was shown included footage of the Wellington Street entrance to the hotel. It showed Mr Paseka taking a bottle from a man identified only as Izzy, and placing it in a bin in the presence of Mr Lokotui. It also revealed a sequence some minutes later, shortly before 4.47:41am, when Mr Orcher and Ms Williams are seen to leave the hotel through the Wellington Street door and to walk out of the camera's view, apparently crossing Wellington Street and travelling in the direction of the service station. Mr Lokotui is also apparently shown watching Mr Orcher as he does so. It is very soon after this that Mr Orcher was attacked. (Later sequences show Mr Paseka returning to the hotel from the other side of Wellington Street at 4.51:28 am, after he has assaulted Mr Orcher).
In the light of these matters, Mr Keough was asked the following questions:
"Q. What we have seen is Mr Lokotui standing there watching Mr Orcher cross the street?
A. Yes.
Q. He has then stood there and watched Mr Paseka either take or receive a bottle from Izzy?
A. I don't know if he was in front there or behind. If you replayed it I could confirm that for you.
Q. We will just replay it.
A. He's looking away at the moment, but I think just before that he saw it. He doesn't watch as he goes across the street, no.
Q. Looking at that sequence of events, Mr Keough, it appears, does it not, that Mr Paseka is carrying out what you say are his usual duties as a glass and bottle collector?
A. No, not at all."
Mr Keough was also asked about the extent of the area of responsibility of the hotel security staff:
"Q. What the manager and the hotel security staff were doing were complying with the undertakings in the licence about not permitting bottles and glasses and other containers to be taken off the hotel premises; is that right?
A. I am assuming they were.
Q. And they were doing so across the street; is that right?
A. It appears that way."
This issue of Mr Paseka's employment status at the time was then explored in the questions that followed. They should be noted:
"Q. Why not?
A. Well, a glassy is there inside the bar making sure that the bar staff have clean glasses, ice, that sort of thing, everything there at their hand. That's the whole reason, clear the tables, bring stuff in, have it washed, give it back to the staff in the racks so that when they have to serve everything is at their fingertips. It's not to do things outside the hotel, it's not to take bottles off people out there, that's not his job at all, and he is not working. In my observation there Mr Lokotui is telling him to put the bottle down, from what I can see, my observations, and quite often this happens where someone walks out and you sort of say, "Look, you can't do that." They bought the bottle, they think, well, this is mine, they skol it quickly, throw it down or a friend goes up and goes, "Mate, give us the bottle. You're not going to get back in if you do that, put it down." A friend does that quite often. That doesn't mean they're working at all. You may have a group of five people, you know, one of them goes outside with a drink, they don't want them to be excluded from the premises, so they just say, "Mate, put the bottle down." He was a friend, he wasn't a stranger, he was a person they had been socialising with throughout that night. If he went up to a stranger and grabbed a bottle from behind like that there could have been an altercation.
Q. It looks, does it not, Mr Keough, as if Mr Paseka was doing something which complied with the undertaking in the hotelier's licence that no glasses or other open drinking vessels shall be removed from the premises by patrons. That's what it looks like, doesn't it?
A. No, it doesn't look like that. It looks like he's taking a bottle off a friend when he has seen one of the staff say you can't take it out. That's what it looks like to me, helping a friend out. He's certainly not doing...the order of the neighbourhood is not being disturbed.
Q. If he is working inside when he picks up a glass that has been used by Mr Izzy, is that different to if he picks up a glass that has been used by somebody he doesn't know?
A. Well, he's not picking up a glass. No, there is a big difference. There would be no difference in a glass but grabbing a bottle off someone he doesn't know, he might end up with a confrontation. People don't do that. You go up to a friend and you grab the bottle. A friend is a friend; you're not going to muck up like some people would."
Mr Keough agreed that the attack upon Mr Orcher that had occurred on the other side of Wellington Street could, all things being equal, be seen by a person standing some 15 metres away on the steps of the hotel entrance or thereabouts on the opposite side of the road. He was not, however, prepared to agree with the suggestion that if the security guard, depicted in the CCTV footage as on duty at the time, saw this and did not speak to Mr Paseka when he returned, it was "consistent with the security guard thinking that Mr Paseka had been doing his job". He maintained this view even though Mr Paseka, who on Mr Keough's account was by this time a paying customer or patron and not an employee, was not prevented from re-entering the hotel having just violently assaulted Mr Orcher only moments before.
The cross-examiner returned to the question of whether Mr Paseka was working at this time. The following questions and answers should be noted:
"Q. This is a critical issue in this litigation, isn't it, Mr Keough, whether Mr Paseka was working or not?
A. Well, I don't really know what whether it's critical to your case or not, but he wasn't working.
Q. This conversation you've just referred to where Mr Paseka himself told you he wasn't working, where is that in your statement?
A. I don't know.
Q. You don't know? It is not there, is it?
A. I don't think so, I don't
Q. Have a look.
A. I can't see it right now.
Q. I put it to you squarely, Mr Keough, the evidence you have just given about Mr Paseka himself telling you he was not working, is something you have made up sitting in the witness box this morning?
A. No, I haven't.
Q. I put it to you squarely that it is false evidence?
A. It is not false evidence.
Q. It is deliberately false evidence, which you have given in support of your defence of these proceedings?
A. No, it's not.
Q. Why is it not in your statement, Mr Keough?
A. Well I don't know. There are probably quite a few things that aren't in my statement.
Q. Mr Keough, you have appreciated from the commencement of these proceedings that it is a critical issue in these proceedings whether Mr Paseka was working or not working; you perceived that, haven't you?
A. Yes.
Q. And you would know that it is a very important piece of evidence in that regard if Mr Paseka personally had told you he had stopped working, you know that, don't you?
A. Well, at the time I made this statement, I don't know what the case is turned on.
Q. I will give you another opportunity
A. Let me be very clear
Q. No, you let me ask a question, please. I will give you another opportunity to explain why that evidence you have given for the first time this morning, is not in your statement?
A. I don't know why. But let me be very clear, I knew he was not working. I observed him not working. I observed him socialising, as I said numerous times throughout this and I spoke to him. If I saw him socialising, sitting down, I would have said "What are you doing?" I was well aware he wasn't working. To suggest that he was, is just absolutely false."
Mr Keough was further cross-examined on matters not presently calling for comment.
Benjamin Luke Davies
Mr Davies made a statement dated 10 September 2010 that was tendered following a series of objections. He said that on the night of the incident Mr Paseka was working collecting empty glasses and other related duties. He could not recall the exact time that Mr Paseka started. Mr Davies did not see Mr Paseka drinking while he was working. Mr Davies said that some time towards 2.00am, Mr Paseka had a conversation with him to the following effect. Mr Paseka said, "Hey Ben, can I leave early? My girlfriend and some mates are here and they've bought me a drink and I've just had it." Mr Davies replied, "Well, because we're quiet and you've had a drink you can knock off now."
Mr Davies said that he saw Mr Paseka several times after that, talking happily to his friends and to Ms Williams. He was later also seen to be playing pool.
Mr Davies said that he also saw Mr Orcher arrive at the hotel at about 3.30am. He did not appear to be intoxicated. The next time he saw him he was standing beside the ATM in the hotel with Ms Williams. They were yelling at each other. He therefore asked security staff to remove them. He then saw Mr Lokotui ask them both to leave, and they did so "of their own accord". He said that he next saw Mr Orcher and Ms Williams cross the street outside the hotel and walk towards the service station. Mr Davies said that a moment later his attention was drawn to a commotion in the vicinity of where he had last seen Mr Orcher and Ms Williams. He said that he started walking to the other side of the road when he passed Mr Paseka walking back towards the hotel. Mr Paseka did not say anything to Mr Davies. He saw Mr Orcher lying on the ground with blood around his head. Mr Davies called the police and the ambulance from his mobile phone.
To Mr Davies' observation, Mr Lokotui supervised the externally employed security guards "in a limited manner, because those guards did not work for us, they worked for a security company and they had their own boss". However, those guards reported to Mr Keough or in his absence to Mr Davies. He agreed that in the course of the performance of their ordinary work the external security guards would take supervision from Mr Lokotui when required. He also agreed that in the course of the performance of their usual work at the hotel they would look to Mr Lokotui for direction if required.
Mr Davies was taken to the terms of a statement he made to the police on 27 November 2007. He accepted that it was more likely to be accurate than the statement he made two years later. In the earlier statement Mr Davies said that Mr Paseka "had finished work at 4.00am" and that "he was off duty". However, when pressed on the issue he said this:
"Q. Would you now say, on oath, in court today, that if Mr Paseka finished work on the night of 25 November 2007, it was at 4am?
A. No, in hindsight I would I don't believe he finished if the incident occurred at 4.50 something, I believe he finished work at least two hours before that.
Q. At least two hours before that?
A. Yes."
After further cross-examination, Mr Davies gave this evidence:
"Q. Now that I have drawn your attention to the last sentence of paragraph 11, you want to change your evidence about the accuracy of this statement, don't you, Mr Davies?
A. To...I wish to admit that I do not have a correct bearing on the precise time that he knocked off."
He was taken to a printout from the payroll computer software at the Bridge Hotel. He agreed that that it recorded that Mr Paseka finished work at 3.00am on 25 November 2007. Mr Davies denied that he wrote his statement "carefully in order to detract attention from the possibility that Mr Paseka was involved". He said the following:
"I had no knowledge that Mr Paseka was involved other than the word of a woman on the floor who was screaming and there was another man on the floor...sorry, there was Izzy there. I do not believe in hearsay. I have worked in the industry for a long time and everyone lies to you."
Mr Davies was also asked about any discussion that he might have had with Mr Keough on this subject. That evidence was in part as follows:
"Q. And you discussed with Mr Keough the importance of establishing that Mr Paseka had finished work before this incident, didn't you?
A. Not the way you put it, no. I informed him that he had finished work but we did not discuss the importance in a conjecture manner as to establishing a fact. I merely made a statement that he had.
Q. Did he ask you, did he, what time Mr Paseka finished work?
A. He was actually surprised when I told him he finished work.
Q. He was surprised?
A. That's how I recollect it.
Q. Mr Keough didn't say anything to you to the effect of: Oh, Mr Paseka told me that himself earlier this morning?
A. No."
Heamasi Lokotui
Mr Lokotui produced a statement dated 29 September 2010 that was tendered. He said that while he was employed by the hotel his principal duties were to check the identification of patrons seeking to enter the hotel, to check for signs of drunkenness, to monitor patrons' behaviour inside the hotel and to remove disorderly patrons. He worked under the supervision of Mr Keough or in his absence under the direction of the bar manager. Mr Davies was the bar manager on the night of the assault.
Mr Lokotui recalled that Mr Paseka was employed as a glass collector on that night. There were two security guards from another company also working in addition to him. Mr Lokotui assisted at various locations in the hotel throughout the night, including the main entry. He said that he knew Ms Williams and Mr Orcher.
He said that at about 4.40am he received a radio call saying that some patrons were arguing in the ATM area. When he arrived there he saw that it was Ms Williams and Mr Orcher. They were standing just outside the female toilets and they were arguing in a heated fashion. He approached them and said, "Look you two. I need to ask you to calm down or you're going to have to leave the hotel." They continued to argue so Mr Lokotui asked them to leave. They both complied. He followed them to the hotel foyer and watched them leave by the front door.
About ten minutes later Mr Lokotui was paged by one of the other security contractors telling him that someone was hurt outside. He walked across the road to where a group of people were standing. He did not pass Mr Paseka. When he got there he saw Izzy yelling at Ms Williams. Mr Orcher was lying down and Mr Davies was attending to him. They were on the opposite side of Wellington Street from the hotel and about 15 to 20 metres away. He did not see Mr Paseka hit Mr Orcher.
On the occasions during the evening when Mr Lokotui had seen Mr Paseka picking up glasses, he did not see him drinking. He did not appear to be drunk. He had previously seen Mr Paseka and Ms Williams engaged in friendly conversation before Mr Orcher had arrived.
Mr Lokotui agreed in cross-examination that in the event that something happened on the footpath on the other side of Wellington Street that might be called an incident, which came to the attention of the security guard outside the main entrance, the system was that he should report it to the man in the foyer in the first instance.
Mr Lokotui was inevitably taken to that portion of the CCTV footage that showed Mr Paseka taking a bottle from Izzy. He gave the following evidence on that topic:
"Q. And although you have turned your back on Mr Paseka, you know that he's dealing with it, don't you?
A. I didn't let him take responsible for that, sir.
Q. You let him deal with it, didn't you?
A. No, sir.
Q. Mr Paea is watching and you're standing there still as Mr Paseka deals with it, isn't he?
A. That's correct, sir.
Q. Mr Paseka was doing his job of collecting glasses, wasn't he?
A. No, sir.
Q. What was he doing?
A. Taking bottles off Izzy.
Q. And that was part of his job, wasn't it?
A. No, sir.
Q. Why were you permitting him to do something, which was not part of his job?
A. I did not allow him to take the bottle off Izzy.
Q. Mr Lokotui, you saw him starting to take the bottle and then you turned away, didn't you?
A. That's correct, yes.
Q. You let him deal with it, didn't you?
A. I didn't let him deal with it."
Mr Lokotui agreed that following Mr Paseka's assault upon Mr Orcher, Mr Paseka came back across the road and entered the hotel. Mr Lokotui agreed that he told Mr Paseka what he should then do. That emerges from the following evidence:
"Q. When you told Mr Paseka to go to that ATM and stay there, he was inside the hotel and not out in the street?
A. That's correct, sir.
Q. And you were telling him to go in there and stay there because you knew that you could be in trouble, weren't you?
A. No, sir.
Q. But you were telling him to do that?
A. That's correct, sir.
Q. That is correct, isn't it?
A. I knew he was inside.
Q. And you told him that because you knew you could be in trouble?
A. That's correct, sir."
Mr Paea
Mr Paea was the other security guard employed by DSSS Cousins who was on duty on the night in question. He was not called to give evidence, as he could not be located despite attempts to secure his attendance by the issue of a subpoena. He is seen on the CCTV footage on Wellington Street in the early hours of the morning at times shortly before Mr Orcher was attacked. Mr Paea is the security guard who is referred to by Ms Williams as the person that she says she saw standing shoulder-to-shoulder with Mr Paseka on the footpath outside the Wellington Street entrance to the hotel.
Mr Orcher's submissions
Negligence: Bowcliff
Mr Orcher's principal case is that Bowcliff, as an occupier of licensed premises, carrying on a business selling liquor on the premises, directly breached its duty of care to him by failing to prevent injury to him as a patron caused by violent, quarrelsome or disorderly conduct of other persons in the vicinity of the hotel, and by failing to take precautions against a risk that an untrained and unqualified person intervening in an altercation between Mr Orcher and Izzy might overreact and cause harm to Mr Orcher.
The scope of the duty for which Mr Orcher contends is derived from the following authorities. First, Adeels Palace Pty Ltd v Moubarek [2009] HCA 48; (2009) 239 CLR 420 at [26]:
"[26] In the circumstances reasonably to be contemplated before the restaurant opened for business on 31 December 2002 as likely to prevail on that night, Adeels Palace owed each plaintiff a duty to take reasonable care to prevent injury to patrons from the violent, quarrelsome or disorderly conduct of other persons. The duty is consistent with the duty imposed by statute upon the licensee and which was a duty enforceable by criminal processes. No question arises of translating a statutory power given to a statutory body into the common law "ought". The duty is not absolute; it is a duty to take reasonable care. It is not a duty incapable of performance. It is a duty the performance of which is supported by the provision of statutory power to prevent entry to premises and to remove persons from the premises, if needs be by using reasonable force. Although it is a duty directed to controlling the conduct of others (for the avoidance of injury to other patrons) it is a duty to take reasonable care in the conduct of activities on licensed premises, particularly with regard to allowing persons to enter or remain on those premises."
Second, Zorom Enterprises Pty Ltd (in liq) v Zabow [2007] NSWCA 106; (2007) 71 NSWLR 354 at [37]:
"[37] There is no reason to draw such an inference, based on tight linguistic analysis, from the formulation of licence conditions. Rather, the appropriate inference as to the duties of security personnel must take account of the general provisions of the Liquor Act 1982 (NSW), pursuant to which a licensee or employee of a licensee has power to "turn out, or cause to be turned out of the licensed premises" an intoxicated person, using "such reasonable degree of force as may be necessary": Liquor Act, s 103, discussed in Wagstaff v Haslam [2007] NSWCA 28 at [34]-[36]. To similar effect, the licensee is required not to permit "intoxication, or any indecent, violent or quarrelsome conduct on his or her licensed premises": s 125(1). For the purposes of that section, a person may be asked to leave the premises and the licensee may be required to show that all reasonable steps were taken to prevent intoxication on the premises: s 125(4). Absent any evidence to the contrary (and none was called by the defendants at trial) the trial judge was entitled to infer that the security personnel were contracted by the licensee to ensure his compliance with both his statutory obligations under the Liquor Act and his specific obligations under his licence. So understood, the obligations of the security personnel would have included turning out persons thought to be intoxicated, and those involved in or likely to be involved in violent or quarrelsome conduct. The duties would have included patrolling the area in the vicinity of the hotel to ensure that patrons, not limited to those turned out of the premises, did not cause nuisance or annoyance to the neighbourhood..."
Third, Portelli v Tabriska Pty Ltd [2009] NSWCA 17 at [61] per Allsop P:
"[61]... I have reservations about whether it can be said, as the primary judge did, that the duty cannot extend to any circumstances where the wrongdoing causing injury to the plaintiff occurred in a public street. The element of control which, together with the statutory obligations and occupation of the site, is the foundation of the duty may in appropriate circumstances apply to control of the victim (or at least circumstances which attend the victim) as well as of the aggressor. The fact that the aggressor has been put out of the hotel may not exhaust the obligation of the licensee or occupier to take reasonable steps to respond to a foreseeable risk of injury to the remaining patron. One can envisage a multitude of circumstances in which a simple step by the licensee could prevent a patron walking outside into almost certain physical injury. Care must be taken, however, to prevent recognition that the control able to be exercised by the licensee or occupier can be the foundation of a duty of care to a patron becoming transformed into a proposition that the licensee or occupier has a positive obligation to become the protector and guardian of the so called "innocent" patron whenever danger outside the hotel can be reasonably apprehended. Some of the particulars and submissions of the appellant here amounted to this last proposition, or at least came close to it."
Fourth, Desmond v Cullen [2001] NSWCA 238 at [4] per Spigelman CJ:
"[4] It is not necessary in the present case to identify the boundary of the duty owed by a licensee of a hotel to patrons of the hotel. It is sufficient to say that I agree with Grove J that that boundary cannot be confined to the curtilage of the property of the hotel, as suggested by the trial judge."
Mr Orcher contended in this case that the duty, formulated in terms of "in the vicinity of the hotel" is informed and supported by the undertaking to the Board referred to in exhibit "U" that on those occasions where more than one door person is employed, they shall patrol outside the premises to ensure that the undertakings are complied with.
Mr Orcher submitted that the fact that Mr Paseka was an employee, even if off duty at the time but remaining on the premises, reinforced the contention that the duty extended to his conduct in the vicinity of the hotel. Mr Paseka was, of course, not a complete stranger to Bowcliff for whom Bowcliff could have no responsibility beyond the boundaries of the hotel. Taking reasonable steps to prevent harm caused by the conduct of an employee on the business premises, even if off duty, is different to preventing harm caused by a stranger.
According to Mr Orcher, it was common sense that there is a foreseeable risk that if an untrained and unqualified person intervenes in an altercation between two hotel patrons, the incident may escalate. The risk of overreaction by an untrained person was also foreseeable.
Mr Orcher's primary case on Bowcliff's breach of duty was that Mr Paseka, a person not qualified, licensed or trained in security matters, was allowed to intervene in the altercation between Mr Orcher and Izzy and then overreacted when Mr Orcher said something to him. That allowance or permission was either positive, as in "permission", or negative, as in a failure to prevent him doing something. Moreover, Mr Paseka was known to have previously intervened in matters of security or customer control and to have overreacted in doing so. Mr Orcher pointed to the Tyrone O'Reilly incident in that regard. It was not Mr Orcher's primary case on negligence that Mr Paseka had a known predisposition for violence. However Mr Orcher submitted that a finding that he did have a violent tendency added weight to the risk and hence the unreasonableness of permitting Mr Paseka to cross the road or not preventing him from doing so.
Bowcliff's permission, or failure, to intervene in this respect is said to come from either Mr Lokotui's conduct as Bowcliff's employee or Mr Paea's failure to act. Mr Paea was said to be under the direct supervision and control of Bowcliff and was implementing the system it had devised. There was no delegation to an independent contractor and therefore Mr Orcher submitted that any failure by Mr Paea to act reasonably was a breach of duty by Bowcliff: see North Sydney Leagues Club Limited v Berecry [2002] NSWCA 154; (2002) Aust Torts Reports 81-657 at [11] - [15] and [21] - [22].
Mr Lokotui observed Izzy pointing across the road in the direction that Mr Orcher had walked when he left the hotel with Ms Williams. He also saw Mr Paseka take the bottle from Izzy on the footpath. Mr Orcher contended that this was a case of Mr Paseka "apparently doing his job". He contended that Mr Lokotui wrongfully permitted Mr Paseka to cross the road or failed to prevent him from doing so when he knew that Izzy had also crossed the road following Mr Orcher, without informing Mr Paea that Mr Orcher had been told to leave the hotel or that he and Izzy had "interacted" inside the hotel.
The CCTV footage shows that Mr Paea stood and watched events unfolding on the opposite side of Wellington Street both before and after Mr Paseka went across. Mr Orcher contended that those events did not unfold so quickly that Mr Paea did not have time to appreciate that an apparently unqualified, unlicensed glass collector was intervening in an altercation between patrons with the risk that he might overreact. It was submitted that whereas Mr Paea might not have had the opportunity to prevent Mr Paseka throwing a punch in response to a provocative remark by Mr Orcher, Mr Paea "certainly" had the opportunity to tell Mr Paseka that it was not his role to cross the street to intervene. That was a matter for qualified staff. Mr Paea or Mr Lokotui should have done so.
However, Mr Orcher submitted that the behaviour of Mr Paea was also consistent with him either being comfortable with Mr Paseka intervening or with a belief that the hotel had no responsibility for any untoward activity across Wellington Street. Both positions were flawed as each created a foreseeable risk of harm to a patron in the vicinity of the hotel. The risk that Mr Paseka, an untrained, unqualified and unlicensed person, might intervene and overreact if provoked materialised.
Mr Orcher contended that in terms of s 5B(1) of the Civil Liability Act 2002, the risk was foreseeable and was not insignificant. This followed as the purpose of Mr Paseka's intervention was to deal with conduct between patrons that was potentially violent. It also arose in circumstances where a reasonable person in the position of Bowcliff, an occupier of licensed premises from which it conducted the business of a hotel, would have told such an untrained person not to intervene or would have taken steps to prevent him from doing so.
In terms of s 5B(2) of the Act, Mr Orcher contended that the likely seriousness of the harm and the insignificance of the burden of taking precautions to avoid the risk of harm weigh heavily in favour of determining that a reasonable person would have taken those precautions. The probability that harm would occur was not negligible and there was no social utility in permitting untrained, unqualified or unlicensed people to intervene in altercations between patrons.
In terms of causation, Mr Orcher submitted that the evidence demonstrated that when Mr Paseka was instructed to do something he complied, including in the aftermath of the assault. There was therefore no basis for inferring that if Mr Paseka had been told not to cross the street he would have failed to comply. Mr Orcher submitted that the proper inference was that Mr Paseka initially crossed the street to calm things down between Izzy and Mr Orcher, not with the immediate intention of assaulting him. He contended that Mr Paseka was not so worked up when he commenced to cross the street that he would have disobeyed instructions to remain where he was if they had been given.
Submissions on damages
Mr Orcher
Mr Orcher sustained a fracture to the base of his skull with minor subarachnoid bleeding over the left frontal lobe and bilateral subfrontal contusions. He also sustained a minor contusion in the left temporal lobe and there was evidence of hypodensity in the left occipital lobe. He underwent a bi-frontal craniotomy and insertion of an extraventricular drain. He remained in intensive care for more than three weeks prior to transfer to the neurosurgical ward. He was reported to display "continued impulsivity" and "lack of insight". Speech pathology and neuropsychological assessments revealed cognitive impairments consistent with frontal lobe pathology including mild impairments in attention, difficulty with divided and alternating attention, reduced abstract reasoning and difficulty with inhibition.
Mr Orcher submitted, having regard to his ongoing medical problems, and the severity of his original injury, that for the purposes of damages for non-economic loss he should be assessed as falling somewhere in the range of between 75 percent and 80 percent of a most extreme case, which at the relevant time was calculated as $450,000.
Past medical expenses were agreed in the sum of $1,212.
Mr Orcher claimed future medical expenses. General practitioner visits from time to time were said to be necessary. Four visits per year are claimed at the rate of $60 per visit. Mr Orcher takes anti-epileptic medication costing $40 per month. Two annual visits to a neurologist at the rate of $200 per visit are also claimed. The total annual amount for these items is therefore $1120. As at the date that I reserved judgment in these proceedings, Mr Orcher had a life expectancy of 53 years, with a multiplier at five percent of 988.9 producing $21,300.
Shortly before he was assaulted Mr Orcher was working for a storage company as a storeman/labourer. He spent some time during the day working as a forklift driver, for which work he has been licensed for some years. The unchallenged evidence is that he was receiving about $680 per week net for that work. He has not worked more than one month in any capacity since the assault.
Mr Orcher contended that his past wage loss calculated at that rate up to 3 February 2012 was $680 for 264 weeks amounting to $179,520. By my calculation, however, the period from 25 November 2007 until 3 February 2012 is not in fact 264 weeks but 219 weeks. That would produce a sum, calculated at the same rate, of $148,920 for past economic loss.
Mr Orcher contended that, but for his injuries and disabilities, it was reasonable to assume that he would have worked until the age of 67. He contended that there was no evidentiary basis for a contrary assumption. Upon the basis of that assumption, Mr Orcher submitted that his future loss of earnings should be calculated as $680 per week for 24.5 [sic, 34.5] years at a multiplier of 870.75 less 15 percent for vicissitudes producing $503,293.
Lost employer superannuation contributions are claimed at the rate of 11 percent of the net past and future sums for economic loss.
Mr Orcher also claims damages for past and future domestic assistance. He gave evidence with respect to his general difficulties remembering to do tasks around the house. He claims that he fails to perform domestic chores without prompting as a result of his disabled memory. Mr Orcher said that he was physically able to perform most necessary tasks while living alone but would need assistance with heavier jobs and would require supervision.
Mr Orcher relied upon the report of the occupational therapist Ms Bronwyn McKenzie dated 31 May 2010, which was prepared for Bowcliff but tendered by him, in support of his claim for domestic assistance. In addition, Associate Professor Fearnside and Dr Bowers support the need for domestic assistance.
At appendix 5.2 of her report, Ms McKenzie sets out her calculations for the value of past care having regard to her assessment of Mr Orcher's needs in the period between the date of the assault and the date of her report. Only in the period between 26 January 2008 and 31 December 2008 does Mr Orcher qualify for damages for domestic assistance under the applicable thresholds in the Civil Liability Act, having regard to the number of hours of care that are needed. Ms McKenzie calculates that Mr Orcher is entitled to a sum of $15,951 for past care needs at the rate of $31.75 per hour.
In respect of future care, Ms McKenzie proceeded to assess the value of Mr Orcher's needs for domestic assistance upon the assumption that he remained living with Ms Williams. That assumption has proved to be ill-founded. Dr Bowers was of the opinion that Mr Orcher required 6 hours of domestic assistance "in perpetuity". Having regard to the opinion of Dr Bowers, and the effect of the unproven assumption upon Ms McKenzie's assessment, Mr Orcher contended that he had established a case for future care needs at the rate of 7.25 hours per week at the rate of $31.75 per hour for his life expectancy of 53 years or a multiplier of 988.9. This produces a sum of $227, 632.
Bowcliff and Mr Keough
These defendants conceded that there was little in issue between the parties with respect to Mr Orcher's injuries but indicated that there was some considerable differences with respect to the consequences in terms of damages.
Mr Orcher's pre-injury work history was described as "far from stellar". Mr Orcher conceded leaving his job at the Novotel because of low wages. He left another job at Asquith because he had to travel. He agreed with the proposition that most of the jobs he had before the assault were only for a few months. It was submitted that this suggested a certain lack of motivation on the part of Mr Orcher to pursue employment where it might involve him travelling or where he did not think he was receiving sufficient compensation for his efforts. What then would have been the pattern of his work if not for the assault?
Bowcliff and Mr Keough submitted that given that Mr Orcher had been unemployed for a few months before this incident, there was no reason to think that his work habits would have been likely to change. He has played basketball since the assault and attended to domestic chores such as shopping. He confesses to attempting to do vacuuming without success. The reason that he might not be able to do the handyman work, which was adverted to in one of the medical reports, was because he suffers from dizziness. That was also the reason why his job as a forklift driver had ceased. It was contended that Mr Orcher appeared to be free of dizzy spells if he continued with medication, which so far appeared to be dealing with that particular problem. If Mr Orcher's dizziness is controlled, there is work he can do. His capacity for work should therefore be assessed upon the basis that with medication he is without any relevant restriction. It was submitted that that included work as a forklift driver, which was the type of work he had always done. The calculation of economic loss was therefore said to be self evidently dependent upon whether I could accept the broad proposition that from a point at least six months before giving evidence, Mr Orcher was free of dizzy spells and should therefore have been seeking to obtain employment that was consistent with his cognitive difficulties, but which recognised it was at least probable that he would be able to drive a forklift. Mr Orcher's claim for $680 per week would therefore have ceased in approximately September 2010.
Bowcliff and Mr Keough contended that the range of non-economic loss under the Civil Liability Act was somewhere between 50 and 55 percent of a most extreme case.
In relation to domestic assistance, it was submitted that there was no continuing basis for it on the footing that Mr Orcher's dizziness can now be controlled. That effectively removed the underpinning basis for which domestic assistance was said to be necessary. That submission is necessarily contentious.
Section 3B of the Civil Liability Act requires only a brief further mention. Bowcliff and Mr Keough contended that assessment of damages for a vicarious liability was to be dealt with under this provision. As will by now be apparent, that question does not arise for consideration.
QBE
QBE adopted the submissions of Bowcliff and Mr Keough on damages.
Consideration - damages
Mr Orcher's damages fall to be assessed under the provisions of the Civil Liability Act. I have therefore not earlier referred to any of the parties' submissions on damages proffered on the alternative calculations and heads of damage available at common law.
Non-economic loss
Mr Orcher was very seriously injured. He suffers from continuing physical and cognitive deficits of a most disabling and distressing nature. These are permanent. Mr Orcher is 33 years of age. His social, domestic, sporting and recreational activities have been fundamentally interfered with and significantly curtailed. His cognitive impairments intersect on a daily basis with his efforts to lead a normal life. He is prone to dizzy spells and he is vulnerable to epileptic incidents for which lifelong medication will be required. The prospect of safety from these episodes when adequately and properly medicated is itself vulnerable to the effects of his memory problems and the ever-present prospect that he will fail to maintain his medication regime. He is a young father, and the prospect of him being able successfully to care for his children or to contribute to their lives in a way that is mutually beneficial and enjoyable must be in grave doubt.
I consider that in the circumstances of this case Mr Orcher is entitled to damages for non-economic loss calculated as 75 percent of a most extreme case.
Medical expenses
The medical expenses incurred to date are agreed.
Equipment
Even notwithstanding that Ms McKenzie referred to the prospect that Mr Orcher may have had a need for some equipment, referred to in appendix 3.2 of her report, Mr Orcher made no submissions about these matters. That was presumably upon the basis that the items in question, and the cost of providing them were arguably de minimus. I have not considered these matters further in those circumstances.
Future medical expenses
The sum of $21,300 claimed appears to me to be conservative. None of the defendants suggested that Mr Orcher was not entitled to damages in this sum under this heading.
Economic loss - past and future
In Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 at [4] a majority of the members of the High Court said the following:
"... in an action in negligence in this country an injured plaintiff recovers damages for loss or impairment of earning capacity as distinct from the direct recovery of past or future lost earnings..."
Mr Orcher has no qualifications, training or experience in any work other than as a forklift driver. He has worked either in that capacity alone or in combination with work as a storemen. Prior to sustaining his injuries Mr Orcher changed jobs regularly but generally had no difficulty obtaining work. He had no impairment to his capacity to obtain or to retain work for which he was qualified in competition on the open labour market.
As a result of his disabilities, Mr Orcher has not worked with the exception of approximately one month in any capacity at all. Bowcliff and Mr Keough contend that this was not a true reflection of his capacity to work and that his failure to work since the assault is in effect unrelated to any injury or disabilities for which any defendant is, or could be, responsible. On the contrary, Mr Orcher submitted that he was, by reason of his post-assault condition, effectively unemployable. This was the result of the ongoing cognitive deficits and related epileptic vulnerability. It is to be observed that Mr Orcher obtained work following the assault without informing his prospective employer at the time of what his true condition and abilities were. In the events that occurred, the employer was unable or unwilling to accommodate the problems and Mr Orcher's employment ceased.
Associate Professor Fearnside opined in his 20 January 2009 report that Mr Orcher would need to work in a fairly simple structured environment minimising stress and with flexibility. He said in his 26 August 2010 report that Mr Orcher would struggle to obtain employment in the open labour market. Dr Bowers said in his 9 April 2009 report that Mr Orcher may be able to "return" [sic] to sedentary or semi-sedentary work for two-thirds of his normal working hours, subject to adequate control of his epilepsy. Dr Westmore, in his 2 October 2008 report, thought that some future employment for Mr Orcher should not necessarily be excluded but that he would require a sympathetic employer. Ms Susan Pulman expressed the view in her June 2009 report, by reference to Mr Orcher's ongoing emotional difficulties and the impact it will have on interpersonal conflict and the associated likely challenges that would arise in the workplace, that Mr Orcher could not be employed in circumstances that put him under any pressure.
Professor McLeod reported on Mr Orcher on 28 September 2010 in these terms:
"Because of his epilepsy and impaired memory he will have difficulty in returning to paid employment. I am in agreement with Dr Fearnside's opinion concerning his difficulties in returning to work and the types of work which he could undertake if he were employed."
The evidence from the experts is not all one way. Ms Christine Leaver, a physiotherapist and Professor Pryor, a vocational psychologist, in their August 2009 reports, suggest that Mr Orcher should "overall" be capable of returning to his usual pre-injury employment as a storeperson/forklift driver in an unrestricted capacity. That opinion, however, was conditional upon "appropriate control of [Mr Orcher's] epileptic fits or medical evidence confirming that they are no longer present or afford a threat to his or others['] safety". Upon the evidence before me it seems clear that those conditions are just not made out.
I had what in this case I consider to be the very distinct advantage of observing Mr Orcher in the witness box. It was obviously not a pleasant or easy place for him to be. He gave evidence in a straightforward fashion and did not appear to exaggerate in any way that I could discern. His patience was obviously under considerable strain at all times, which was evident in not only what he said but in the way he said it. The following extract from Mr Orcher's evidence is instructive:
"Q. See, what I suggest in fact happened was that you and she had a shouting match?
A. Okay. Then you tell me what happened then, mate, if you know.
HIS HONOUR: Mr Orcher, can we just slow down. Whether we like it or not, we all have a job to do. Mr Sheldon has his to do. You might not like it. We have to live with it. We will all get on famously if you listen to his question and give the best answer you can.
Having said that, I know, having read medical reports, that you have suffered from serious injuries that have effects upon you and it is difficult, often, to remain calm. If you can, do the best you can. He means nothing personal.
WITNESS: I'll try."
Mr Orcher's minor outburst was an example of his impatience and disinhibition in the face of what was really very little pressure and in circumstances that would not ordinarily seem to be particularly frustrating or troublesome. The reaction was however consistent with the diagnoses of his condition and indicative of a person who would be very likely to run up against considerable difficulties in a stressful or pressurised workplace.
I do not think that Mr Orcher will ever be able to return to work as a forklift driver or to any similar work. I also do not think that Mr Orcher would be able to retain a position in that capacity for very long, upon the assumption that he could get such a job in the first place. The latter assumption is also necessarily frail when regard is had to the fact that Mr Orcher cannot be expected to seek work without revealing his medical history, including the fact that he has epilepsy and including the further fact that his ability regularly and consistently to take medication that controls his epilepsy is itself a matter for serious concern. Although there is no direct evidence before me about it, Mr Orcher's ability to retain a current forklift driver's licence in the circumstances must itself be subject to considerable doubt.
I would like to think that Mr Orcher might return to some form of work, even if only very limited, from time to time on a sporadic basis. I have no particular reason to be confident that he will, beyond what I have seen of Mr Orcher myself, and what the evidence has otherwise revealed about him. However, I am satisfied that whatever strengths or personal qualities Mr Orcher possesses, which may assist him in that regard, they will never be enough to overcome the continuing effects of his disabilities or to reduce the defendants' liability to compensate him for the resulting economic loss.
In my view, Mr Orcher's past period of unemployment is directly and solely related to his injuries and continuing disabilities. Those same injuries and disabilities will in my opinion prevent him in the future from obtaining or retaining suitable remunerative employment. I consider that the economic losses claimed by Mr Orcher are an accurate reflection of his actual earning capacity. I reject entirely the submission of the defendants that Mr Orcher's only impediment to obtaining and retaining full-time employment as a forklift driver or its equivalent is a function of his less than stellar motivation or that his pre-injury work record conclusively or even reliably informs his current capacity to work so that, in the Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 (at 347) sense, Mr Orcher's loss or diminution of his earning capacity has not, when considered in the light of his work history, been productive of financial loss. That submission is at odds with the true nature and extent of Mr Orcher's disabilities and is not a fair reflection of the impact they have had. Simply as a matter of common experience and understanding of the real world, I would be very surprised to learn that any employer would choose Mr Orcher over another forklift driver who did not suffer from epilepsy, did not have memory loss problems, was not prone to aggressive and disinhibited outbursts and whose organisational and temperamental facilities were in tact.
I consider that Mr Orcher is entitled to damages as claimed for past economic loss in the sum of $148,920 and to the sum of $503,293 for future economic loss.
Loss of employer superannuation contributions
Mr Orcher's claim for lost superannuation contributions is not attended by any controversy beyond that enshrined in the defendants' contentions that Mr Orcher's economic losses are less that those claimed by him. The entitlement to superannuation losses calculated as a percentage of any economic loss to which Mr Orcher establishes an entitlement is not otherwise in issue.
Domestic assistance and care - past and future
Contrary to the submissions of Bowcliff and Mr Keough, Mr Orcher's dizziness is not the sole, or even the main, reason why he argues that he had a need for past care, or why he continues to argue that he has a need for ongoing care. That is because his physical symptoms such as dizziness and epilepsy are controllable with appropriate medication to a point where they do not interfere with the practical aspects of domestic life. Heavy tasks requiring assistance of one hour per week are an exception to that. On the contrary, it is the organisational aspects of Mr Orcher's domestic life that are at the heart of his needs. As already indicated, that includes the need to put in place a system that ensures timely and regular ingestion of necessary medication. In short, Mr Orcher is physically able to undertake most necessary tasks in living alone but requires assistance with heavier tasks and he requires supervision.
Ms McKenzie provided a detailed assessment of Mr Orcher's domestic care requirements. She was not cross-examined. She reported, however, upon the now false assumption of a continuing relationship between Mr Orcher and Ms Williams.
Isolating or identifying the extent of Mr Orcher's needs for assistance is not difficult. Allocating or assessing that need in terms of time is difficult. Indeed, as Mr Orcher's submissions on this topic implicitly recognise, it only takes seconds for Mr Orcher to take a tablet or to be reminded about the need to perform a beneficial task such as attending a doctor or following the doctor's instructions. Determining what this means in the context of a claim for attendant care unfortunately acquires an air of artificiality.
I am comforted in this respect by the fact that Ms McKenzie felt able to formulate Mr Orcher's need for attendant care and to assess the time which was required to meet that need. I have no difficulty accepting Ms McKenzie's assessment for the past, qualified by the terms of the Act as already discussed. The sum calculated and claimed in this regard is $15,951.
So far as concerns the future, it seems to me that Mr Orcher's need for attendant care services can be adequately accommodated by the provision of assistance for six hours per week. That corresponds to one hour per day on weekdays and one hour for the weekend. I intend by that assessment to give recognition to the fact that some of that need may be met in blocks of hours rather than strictly or rigidly as one hour per day during the week and one hour on the weekend. In other words, six hours per week in my view represents the aggregate of hours in or during which Mr Orcher's attendant care needs can be met, howsoever they may be spaced or combined during that week in order to meet that need. Calculated at the rate of $31.75 for six hours at the applicable multiplier of 988.9 produces a sum of $188,385.
Summary of damages calculations
Upon the basis of my reasoning, Mr Orcher is entitled to the following sums for damages under the following heads:
1. Non-economic loss: $390,000.
2. Medical expenses: $1,212.
3. Future medical expenses: $21,300
4. Economic loss - past: $148,920.
5. Economic loss - future: $503,293.
6. Loss of employer superannuation contributions - past: $16,381.
7. Loss of employer superannuation contributions - future: $55,362.
8. Domestic assistance and care - past: $15,951.
9. Domestic assistance and care - future: $188,385.
10. Interest on past economic loss: $21,787.
The total of these sums is $1,362,591.
Orders
I make the following orders:
1. Verdict for the plaintiff for $1,362,591.
2. Order the defendants to pay the plaintiff's costs.
3. Declare that, having regard to the extent of the fourth cross-defendant's responsibility for the plaintiff's loss and damage, it is just and equitable as between the parties to the fourth cross-claim that the fourth cross-defendant contribute 30 percent of the damages and costs which the plaintiff has become entitled to recover from the cross-claimants.
4. Grant liberty to all parties to apply on short notice for such orders or directions as may appear to be necessary with respect to any arithmetical aspects of my calculation of damages.
*************
Decision last updated: 05 November 2012
2
8
4