[2023] TASSC 33
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Public Trustee as Administrator of the Estate of Matthew Leonard v |
| Atileo [2023] TASSC 33 | |
| PARTIES: | PUBLIC TRUSTEE as the Administrator of the Estate of |
| Matthew Peter Leonard | |
| v | |
| ATILEO, Faleupolu | |
| SL SECURITY PTY LTD (ACN 097 419 358) | |
| FILE NO: | 1416/2017 |
| DELIVERED ON: | 20 September 2023 |
| DELIVERED AT: | Hobart |
| HEARING DATE/S: | 17 – 19, 24, 25, 27 October 2022 (Written submissions – 16, 23 November 2022; |
| 6, 7 September 2023) | |
| JUDGMENT OF: | Porter AJ |
| CATCHWORDS: |
Torts – Interference with the person – Trespass to the person – Defences – Other matters – Self-defence – Defendant bears the onus of establishing the defence – Approach to the defence is otherwise that taken
in relation to s 46 of the Tasmanian Criminal Code.
Quarmby v Oakley [2011] TASSC 20; Dale v Fox [2012] TASSC 84, followed.
Aust Dig Torts [1449]
Torts – Civil liability legislation: modifications to torts and law of negligence – Definitions – Injury; intent to cause injury – Civil Liability Act 2002 not to apply to liability in respect of an intentional act done with intent to cause injury or death – Actual subjective intention to cause injury must be established –– Not necessary for plaintiff to prove intention to cause the injury the subject of the claim – "Injury" means
something more than trivial hurt or harm.
Civil Liability Act 2002, s 3B.
Dickson v Northern Lakes Rugby League Sport and Recreation Club Inc (2020) 103 NSWLR 658; State of New
South Wales v Ibbett (2005) 65 NSWLR 168; Hamilton v State of New South Wales (No 13) [2016] NSWSC
1311; Irlam v Byrnes [2022] NSWCA 81, applied.
Aust Dig Torts [1124]
Torts – Miscellaneous defences or limitations of liability – Criminal or illegal activity – On the part of plaintiff
– Court not to award damages if the injured person was at the time of the incident that resulted in injury
engaged in conduct that constitutes a serious offence – Strict temporal contemporaneity required between
incident and engagement in criminal conduct.
Civil Liability Act 2002 s 6(1).
Sangha v Baxter [2007] NSWCA 264; Corliss v Gibbings-Johns [2010] QCA 233, considered.
Aust Dig Torts [1341]
Torts – Contributory negligence – In action for tort other than negligence – Whether contributory negligence available in response to claim of intentional tort – Battery – Definition of "wrongful act" in Wrongs Act 1954 to be read literally – Extends to acts or omissions giving rise to any liability in tort irrespective of its
form.
Wrongs Act 1954, ss 2, 4
Horkin v North Melbourne Football Club Social Club (1983) 1 VR 153 considered.
Aust Dig Torts [1326]
Damages – Assessment of damages in tort – Personal injury – Other heads of damages – Future care – Cost of
care, location etc – Plaintiff in shared supported accommodation with shared 24 hour care – Whether
reasonable in circumstances to provide costs of modifications of notional house and consequential
increased cost of future attendant care.
Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649; Sharman v Evans (1977) 138 CLR 563
Wieben v Wain [1990] Aust Torts Rep ¶81-051, considered.
Aust Dig Damages [1136]
Damages – Particular awards of general damages – Tasmania – Traumatic brain injury resulting from battery – Severe physical and cognitive disabilities – Appreciable level of insight into difficulties – Plaintiff active person before injury – Aged 36 at trial – Award of $350,000.
Aust Dig Damages [1173]
REPRESENTATION:
Counsel:
Plaintiff: K Read SC, T Cox Defendants: M O'Farrell SC, C Sluiter
Solicitors:
Plaintiff: Murdoch Clarke Defendants: HWL Ebsworth Lawyers
| Judgment Number: | [2023] TASSC 33 |
| Number of paragraphs: | 450 |
Serial No 33/2023 File No 1416/2017
PUBLIC TRUSTEE as the Administrator of the Estate of Matthew Peter Leonard v
FALEUPOLU ATILEO and SL SECURITY PTY LTD (ACN 097 419 358)
| REASONS FOR JUDGMENT | PORTER AJ 20 September 2023 |
| Introduction |
1 At about half an hour after midnight on Saturday 19 July 2014 Matthew Leonard, then aged 28, suffered a very serious head injury after an altercation with a 'crowd controller' outside the Syrup Nightclub (the Club) in Salamanca Place, Hobart. The plaintiff's disabilities are such that the Public Trustee has been appointed administrator of his affairs, and it brings this action for damages on his behalf. For convenience, I will call Mr Leonard "the plaintiff". Because of his injuries, he has no memory of the incident or preceding events and only some of what followed. He has no reliable memory of his history.
2 The defendants are Faleupolu Atileo (commonly called Fale), who was the crowd controller involved, and his employer, SL Security Pty Ltd; respectively the first and fourth defendants. (Proceedings against the Club and its manager, as second and third defendants in the action, were discontinued shortly before the trial commenced.)
3 As against the first defendant, the plaintiff pleads a case in battery for which the fourth defendant is said to be vicariously liable. The fourth defendant agrees that it is vicariously liable in the event that the first defendant is found liable. The plaintiff has also pleaded a separate cause of action in negligence as against the fourth defendant but the parties are agreed that if the first defendant is not liable, including on the basis of self-defence, there is no case against the fourth defendant. Because of that scenario, it is convenient to refer to Mr Atileo as the "defendant".
4 The trial concerned both liability and damages. Within the issue of liability a number of factual and legal questions need to be resolved. Against the factual backdrop that I will explain, there is no dispute that the heavily intoxicated plaintiff was escorted from the Club and ushered on his way. After moving a short distance away, he returned to the area immediately outside the Club. The culmination of what then happened was that the plaintiff punched the defendant to the left side of the face, immediately after which the defendant either punched the plaintiff to the left side of the face or pushed him to the left shoulder. The nature of the force applied is a prominent issue in the trial.
5 As a result of the physical contact the plaintiff fell backwards hitting his head on the roadway. He was treated by ambulance crew at the scene and about half an hour after the incident he was taken to the Royal Hobart Hospital (RHH) where he was assessed and underwent an emergency craniotomy.
6 The liability issues are as follows:
Whether the defendant punched or pushed the plaintiff, that fact being relevant to the next two issues – self-defence and intention to injure. Irrespective of the nature of the force applied, whether the defendant acted in self-defence thus
providing legal justification for his actions.
If self-defence is not established, whether the defendant intended to cause the plaintiff injury within the meaning of s 3B(1)(a) of the Civil Liability Act 2002 (the CLA), the answer to which
2 No 33/2023
affects remaining questions of liability as well as the assessment of damages. That is because,
if satisfied, the section operates so as to disengage the application of the CLA.
If the answer to the s 3B question is in the negative, whether the plaintiff is prevented from being awarded damages by virtue of s 6 of the CLA which prohibits a court from awarding damages if satisfied that the person whose injury or damages is the subject of the proceedings was, at the time of the incident that resulted in the injury or damage, engaged in conduct that constitutes a serious offence, and the conduct contributed materially to the risk of injury or damage that was suffered. Whether, if the defendant is found liable and irrespective of the answer to the s 3B question, damages to be awarded can be reduced by reason of any contributory negligence on the part of the plaintiff. That involves consideration of the definition of "wrongful act" in s 2 of the Wrongs Act 1954. If that is so as matter of law, whether the plaintiff was contributorily negligent, and the extent to which his damages should be reduced if he was. The approach to those issues is affected by the answer to the s 3B question. If the CLA applies, s 5 provides for a presumption of contributory negligence if, at the time of the act or omission causing injury, a plaintiff was intoxicated to the extent that their capacity to exercise due care and skill was impaired. In that case there is a mandated reduction of 25 per cent or such greater or lesser figure as the court thinks appropriate, with the onus being on a plaintiff to persuade a court to adopt a lesser figure. 7 As to damages, many matters have been the subject of agreement, for which I am grateful. The
prominent matters for determination are the plaintiff's life expectancy – the answer to which affects many of the items of damage claimed – loss of learning capacity, what is reasonable for the plaintiff in
terms of future hosing and attendant care. Additionally, if the defendant is liable and the CLA does not
apply, the claim for the cost of gratuitous care will arise.8 It follows from what I have set out that in order to fulfil my obligations as a trial judge, I will need to consider and resolve issues that are not essential to my ultimate determinations. For the following reasons, I find for the plaintiff.
The location of the incident
9 So as to provide a better appreciation of the evidence before setting out the background facts, I will say something about the area in which the incident occurred, and about the CCTV footage of the incident that is in evidence.
10 Although not strictly accurate, I will assume that Salamanca Place runs in a north/south direction. The entrance to the Club faced east and was effectively a few metres from the intersection of Salamanca Place and Montpelier Retreat on the western side of Salamanca Place. The area immediately outside the Club door was a paved pedestrian footpath with a kerb, and hence a step down to car parking/roadway areas. Just along from the door to the north, as the kerb line approaches the corner with Montpelier Retreat, there was what is known as a pedestrian kerb extension, or kerb "build-out"; sometimes called a "bulb-out".
11 The extension was an irregular shape; effectively, a quadrant of a circle. Just to the north of the Club door, the kerb went at a right angle in an easterly direction from parallel to the roadway. The 'roadway' space so created was a right angle car parking space, marked by a sign at the corner. After a straight line of about three metres, the kerb curved back around in an arc in a north westerly direction, and ultimately formed the roadway edge of a normal width footpath on the Club building side of Montpelier Retreat. It was at the rounded corner of the build-out formed by the straight lined kerb and the start of curve back around, that the incident took place.
3 No 33/2023
12 There were two large raised umbrellas erected outside the Club which have some significance in the narrative. From a position looking at the front of the Club there is one about a metre or so in from the edge of the footpath just to the right of the Club door, and another one about three or four metres further to the north on the same line along the footpath.
The CCTV coverage
13 The area in which the incident happened was covered by CCTV and the relevant 'footage' is in evidence, both in normal speed as it happened and in slow motion. For ease of reference I will call the general footage the "video" and distinguish the speed when necessary. There was no evidence as to where the camera was precisely located, but it seems to be on the eastern edge of Salamanca Place. Looking at the video, left is south; right is north. The whole of the relevant area is shown including the Club door which is on the far left of the picture. The point where the altercation took place is effectively in the middle of the picture. The start of Montpelier Retreat is on the right.
14 The roadway for vehicles travelling in a northerly direction can be seen in full, while only part of the carriageway for vehicles travelling in a southerly direction can be seen. The area is not well lit. Occasionally, car passing car lights illuminate the area but not at any material time. The video is shadowy and much of the detail in unclear but the plaintiff is easily distinguishable as he was wearing a white T-shirt and white jeans, and the defendant is also easily recognisable. There are other people who can be identified or have, in evidence, identified themselves in it.
15 Importantly, at the time the defendant applied force to the plaintiff, the plaintiff essentially had his back to the camera, and he obscures vision of the defendant's right side. It is simply not possible from the video itself to reach a conclusion as to whether the plaintiff was punched or pushed. Some inferences can be drawn from body movements both as to what actually happened and what view witnesses had of what happened. Each party has asked me to take different things from the same short segments. Care needs to be exercised in interpreting the images, and in order to make findings of fact I am reliant on eyewitness testimony, although aided by the video.
16 I should add that, as delineated by the time shown on the video, the time between when the plaintiff strikes the defendant and when he has fallen to the ground is a mere two seconds; from 00:33:55 to 00:33:57. That is something that needs to be borne in mind in relation to a number of issues.
Eyewitness testimony
17 I need to also say something about those who were in the immediate vicinity of the incident, some of whom gave evidence and some did not. As things appear on the video, there was a total of 11 people in the immediate area outside the Club when the clash between the plaintiff and the defendant happened, including those two. There was probably a twelfth who does not come into view in the video until much later. The plaintiff gave evidence but, for obvious reasons, said nothing about the incident. The plaintiff called evidence from Ebony Jenkins who was close by at the relevant time. Very shortly beforehand, she had been standing outside the Club with her brother, Nick Woodward, who features in the prelude to the physical clash between the plaintiff and the defendant. I was told that Mr Woodward "is no longer with us".
18 Standing at all times at a point close to the start of the right angle of the car parking space and the car parking sign, effectively between the umbrellas was a group of four people; three females and a male. Of that group only Samantha Mead and Jacqueline Murkins gave evidence. There were two other security staff standing close to where the plaintiff and the defendant were at the relevant time; Chase Scott and Ryan Thorne. Mr Scott did not give evidence while Mr Thorne gave evidence on behalf of the defendant. There was a crowd controller who mainly stayed immediately outside the door. The
4 No 33/2023
evidence suggests this was Ivan Meaclem[1]. He did not give evidence. There was a fifth security person on duty at the time, Sunia Ma'afu, who is likely to have been the twelfth person outside the Club at the relevant time. He did not give evidence.
[1] Throughout the trial, Mr Meaclem's surname was pronounced as though the "l" were an "h", with the transcript having
19 The plaintiff tendered by consent a number of statutory declarations made by various people to police officers in their course of their investigations of the incident. Those statements included ones from people who gave evidence, from those I have just mentioned as not having given evidence, and from others as well. The parties were agreed that the tender was on the basis of an exception to the hearsay rule and that I could take the statements made as evidence of the truth of the representations, but what weight I gave to the evidence was a matter for me to determine.
The background facts
20 The facts leading up to the incident in which the plaintiff was injured are not in contention, and I find as follows. About 11pm the plaintiff was at a hotel near the Club. He was drinking beer. His sister, Christy Barber, left him there about midnight. I infer that shortly afterwards he made his way to the Club. When inside, he was the subject of complaints to security staff because of his behaviour. The plaintiff was heavily intoxicated; The RHH notes contain a record made at 07:20 on 19 July that the plaintiff's blood alcohol level "on admission" (at 06:45) was 0.35%.
21 Samantha Mead and Jacqueline Murkins gave evidence that the plaintiff was harassing their group of four by grabbing the females when they were dancing, intruding into the group and inserting himself into photographs that were being taken. There is no reason to doubt that evidence.
22 The defendant was stationed at the front door of the Club which was at ground level. The Club itself was upstairs. A man came down to him and told him a male was "groping his missus on the arse". As a result, the defendant went upstairs and a short time later, saw a male grabbing a woman on the bottom. That male was the plaintiff. The defendant told him to finish his drink and to accompany him downstairs. When they were on the landing between floors, the plaintiff said that he had left his jacket behind the bar. The defendant asked for the cloaking ticket so he could retrieve it, telling the plaintiff he would not let him back in the Club area.
23 The plaintiff looked for his ticket but could not produce anything. As he put his hand in a pocket, a large number of bills in high denominations fell onto the floor. The defendant picked up the money, put it in the plaintiff's wallet and put the wallet in the plaintiff's back pocket. He told him he would take him back upstairs to talk to the bar manager, to see if his jacket had been put behind the bar.
24 The bar manager, Bianca Peters, told both men that no-one had put a jacket behind the bar. At about this time, another security guard who had just started work, Ryan Thorne, joined the plaintiff, the defendant and Ms Peters. The plaintiff became agitated, abusive and aggressive. He punched Mr Thorne to the face/neck region. Both the defendant and Mr Thorne restrained the plaintiff and physically manoeuvred him out of the venue. The defendant had hold of the plaintiff by his collar and was holding one of the plaintiff's hands behind his (the plaintiff's) back.
25 Once on the footpath outside the Club, the plaintiff was still behaving aggressively and swearing. The defendant told him to go and enjoy his night somewhere else, but not there. After hovering around and plainly remonstrating with the defendant for a short time, the plaintiff left and
walked in a very unsteady manner across the road and median strip – apparently across the whole of the
5 No 33/2023
roadway – before turning around and making his way very deliberately back across the street towards
the Club.
The incident
26 What follows is mostly my description of the video which I am sure does not do it justice. I will leave until later, evidence of greater detail and of things that were said. The video starts at 00:29:57. The plaintiff was ejected at 00:32:14.
27 Having very quickly walked back across the road – in great contrast to the way in which he had walked away – the plaintiff went to where the defendant was. At that point the defendant was in the
middle of the build-out. As the plaintiff approached the defendant, Scott Chase and Ryan Thorne came across from the direction of the Club door. Mr Scott stood on the defendant's right as he faced the plaintiff with Mr Thorne to his right, basically in a line to the Club door. At this time and for what follows, the plaintiff was facing the Club building, away from the CCTV camera. The plaintiff and defendant were face to face for a short time, during which it appears there was some verbal exchange. The plaintiff moved to his left and stopped in front of Mr Scott. There appears to have been another verbal exchange.
28 At this point Mr Meaclem was directly outside the Club door looking outwards. He had Mr Woodward in front and facing him, with Ms Jenkins to his left. The Mead/Murkins group was still between the umbrellas close to the top of the car space. At the time the plaintiff was apparently speaking to Mr Scott, Mr Woodward came across to the plaintiff. The two knew each other. As Mr Woodward approached the plaintiff, the defendant moved closer to the plaintiff. When Mr Woodward reached the plaintiff, he told him to go home. The plaintiff moved to push him and they ended up pushing each other at about the same time. The defendant then walked closer to the plaintiff with his right hand slightly extended and his left hand in his pocket.
29 By this time Ms Jenkins has moved closer to her brother and the plaintiff. Mr Woodward made his way back towards the Club door while Ms Jenkins stayed close to where the defendant was. The plaintiff took a few steps backwards off the build-out into about the middle of the first car parking space, while the defendant moved to the corner, staying on the paved section.
30 The two were then facing each other. The plaintiff was on the lower car space area; the defendant was standing at the corner on the paved pedestrian area. At this point, arrayed to the defendant's right were Mr Scott, Ms Jenkins who was a little closer to the kerb, and Mr Thorne who was basically standing on it; all were generally facing south but with heads turned to the left. The plaintiff moved a little to the defendant's left hand side, punched him to the left side of his head at the point of his ear and immediately stepped backwards. The defendant instantly responded. He swung his right arm
– and effectively in one motion – propelled himself forwards, stepping down from the corner in the
process.
31 The defendant made contact with the plaintiff. As it appears from the video, the contact point seems to have been around or above shoulder height. The plaintiff's head can be seen turning to the right and at the same time as he starts to fall backwards. Immediately after making contact, the defendant swung his left arm in a round-arm motion at the plaintiff, as he (the plaintiff) was dropping away from him. That arm movement is a point of contention although no contact occurred. The defendant's forward movement continued and he appears to have lost his balance after the second arm movement. The plaintiff ended up about in the middle of the actual carriageway for north bound vehicles with the defendant essentially on top of him.
32 At the time the defendant struck the plaintiff, the position of the three closest onlookers had changed. Immediately after the plaintiff hit the defendant both Mr Scott and Mr Thorne hurried closer to the position of the protagonists. Mr Thorne had to get around Ms Jenkins in the process, and she took
6 No 33/2023
a step or two backwards. Both men continued to move. Bearing in mind that everything was happening extremely quickly, at the precise point in time of the defendant's blow, Mr Scott is in something of a line between Ms Jenkins and the two protagonists. What Ms Jenkins was able to see is also a point of contention.
33 As the plaintiff and the defendant fell, Mr Scott and Mr Thorne were with them almost immediately. Both men pulled the defendant up and away from the prostrate plaintiff and Mr Scott used his left arm to shepherd the defendant away. The speed with which the incident unfolded and the positions of those closest to it are illustrated by two still images of the video. Both show the times 00:33:57. The first shows the defendant making, or about to make, contact with the plaintiff. Ms Jenkins and Messrs Scott and Thorne are in the position I described in the previous paragraph. The second shows the plaintiff about half way to the ground with the defendant still on his feet but leaning forward slightly. By the time of that image, both Mr Scott and Mr Thorne had moved forward by two or three steps, with Mr Scott having very quickly moving away from the imaginary line between Ms Jenkins and where the plaintiff was.
34 Once to his feet the defendant took a few steps backwards, turned and walked away from the scene, leaving Mr Thorne and Mr Scott to attend to the plaintiff. Ms Jenkins had moved forward, and was close to the plaintiff for a fleeting moment before walking back towards the Club door. She arrived at the Club door at about the same time as the defendant who then stood in the door way with his hands in his pockets, looking at what was going on in the roadway. Ms Jenkins and Mr Woodward remained close by. They stayed in the area immediately outside the Club for some time. About two minutes after the altercation, Ms Jenkins went close to where the plaintiff was on the ground, no doubt checking on his condition. A little later Ms Jenkins and Mr Woodward were in the immediate vicinity when the plaintiff is moved off the roadway, and Mr Woodward assists by directing traffic. They left the area at about 00:39. An ambulance arrived at about 00:44.
35 In all of this, the Mead/Murkins group had not changed their position at all, either as a group or relative to each other. No-one in the group appears to have responded in any significant overt way to
the altercation or to the fallen plaintiff. Not long after the incident some people – who had not earlier been seen – appear from the right of screen and go to where the plaintiff is; one of them hurries to that
position. The Murkins/Mead group remained where it was, and was still there about seven minutes after
the incident, before going back into the Club.
Was the plaintiff punched or pushed?
36 The only eyewitness to the events called by the plaintiff was Ms Jenkins. In addition to her evidence, the plaintiff relies on what might be gained from the video, evidence that the plaintiff had a "black" left eye shortly after the incident and evidence of alleged admissions later made by the defendant, given by the plaintiff's sister Christy Barber. The defendant gave evidence in his case, and called evidence from Mr Thorne, Ms Mead and Ms Murkins as to the incident. Of course, much of what follows is also relevant to later factual issues that I need to decide, such as self-defence and the application of s 6 of the Act.
Direct evidence in the plaintiff's case
37 Ms Jenkins' evidence was that she was out that night with her brother, Nick Woodward, and her boyfriend. They arrived at the Club a little after 11pm on the Friday night. They had been to two other venues beforehand. That Ms Jenkins was the designated driver and had only had two beers before getting to the Club. Not long after getting to the Club, Ms Jenkins was accosted by a man (not the plaintiff) who kissed her on the lips. She complained to security and went outside to where she knew where her brother had gone, in order to have a cigarette with him.
7 No 33/2023
38 As she was going down the stairs two 'bouncers' went past her bringing a person she later found out to be the plaintiff down the stairs. One of those was the defendant. She did not know who the other one was. She knew Chase Scott from previous visits to the Club.
39 When she reached the entrance she saw the plaintiff walking across the road and could see that there were words being exchanged between two security men and the plaintiff, but could not hear what was being said. She said it looked as though the bouncers were being antagonistic, adding that it looked
like everyone was mouthing off at each other. She later said "… it looked like everyone was just
antagonising each other or mouthing off, words were being exchanged." The witness was asked to "go on" but made no express mention then of the plaintiff returning from across the road. Her evidence was:
"It looked like he [the plaintiff] lifted his right arm to hit the bouncer but it wasn’t a
forceful hit it was just – it’s like he wanted to but it didn’t really connect sort of thing. I – yeah, it’s – it looked like a half-arse thrown punch. Like just, like he wanted to but then he didn’t want to I don’t know. But then within seconds, the bouncer had raised
his right arm and punched Matthew [the plaintiff] in the face and he went to hit him
again with his left hand. And the bouncer lost his balance, like there was no second hit because the bouncer lost his balance and as Matt fell, the bouncer also fell on top of Matt. And then as soon as that happened I heard Chase tell Atileo that he needed toget out of here, go inside, like get out. And in that moment, I said to Chase, 'He’s not
all right, he needs an ambulance.' Chase said to me that, 'It’s okay, he’s only knocked
out.' I said to him, 'He’s not fucking knocked out, he’s dying, there’s blood everywhere.' I can’t remember what was said in the moments after that, but then within a minute or
two later, two people, which I’m unsure of who they were, picked Matt up by his arms
and his legs and moved him off the road."
40 Ms Jenkins said that at the time she was under the umbrellas about two to three metres away but was fairly close to what she saw. She cannot remember anything obstructing her view, and said that she had a clear view of what happened. She described the defendant's punch as a very forceful punch with a closed fist. She said that she did not gain an impression that the left punch that did not connect was an attempt to grab or hold the plaintiff. She thought there was a second "hit" coming that stopped, and only did so because the defendant lost his balance and fell on top of the plaintiff.
41 Ms Jenkins' statutory declaration to police was in the tendered bundle. It was made on the evening of the same day; 19 July 2014. Her evidence was generally consistent with that statement. In the statement she describes the incident between the plaintiff and her brother. That description is generally consistent with the video. In the statement, she acknowledges having been shown surveillance footage by the police and having identified herself and her brother Nick. She also says she saw the plaintiff take some steps towards the bouncers from "the direction of the taxi rank" and was walking quite straight.
42 In cross-examination, Ms Jenkins denied that she was shown the video footage before she had made a statement but was uncertain about whether she had seen it before she signed the statutory declaration. Obviously, the statutory declaration itself shows that she was. When asked about memory difficulties, she said she had "a great memory". However, in her evidence-in-chief she said that they had gone from a hotel bar to the Club, but conceded in cross-examination when shown her statutory declaration, that they had gone to another bar as well before going to the Club, saying "that has just re- jigged in my memory."
43 She was taken through CCTV footage from the Club itself in order to identify various people, and then taken through segments of the video of the incident. At a point just after the confrontation between the plaintiff and her brother she agreed she had turned to face in the direction of the security guards; that is in a northerly direction. She denied using her mobile phone to film them, the suggested motive being that they had done nothing to assist her brother.
8 No 33/2023
44 Ms Jenkins agreed the video shows her then turning anti-clockwise from her right to left, adding that she turned around "and saw it all unfold...you can see me turning quite clearly to face what was going on." It was suggested to her that at the time the plaintiff struck the defendant she was in fact
looking towards the Club door. She said, "No, I saw a punch…then I seen, who I know as Atileo,
retaliate.[sic]." She agreed that Mr Scott had walked in front of her at one point but suggested the video showed a gap through an outstretched arm, saying she "could have a clear view of what was going on because I saw what was going. I know what I saw." When played the part of the video when the plaintiff
falls backwards, Ms Jenkins said – unprompted by any question – "See I am looking the whole time. My
face is directed at them."
45 Ms Jenkins went on to again mention a "half-arsed punch" being thrown at the defendant, not something with any power behind it, and denied that she did not see the defendant punch the plaintiff; "I did see him throw his punch", repeating that same answer when it suggested she was not looking at him. When it was suggested Mr Scott was in between her and what was happening between the plaintiff and the defendant she again said she could see what was going on. She went on, "I have a clear, vague [sic] memory. If I could draw, I could draw you a picture of my brain of what I could see." The following exchange then occurred:
"And to the extent that you could see, I suggest to you that Atileo actually pushed Mr
Leonard, he didn’t punch him?......He punched him with a closed fist and force behindit. He went for a second punch with his left hand and he fell – he lost his balance and fell on top of Matt. If he didn’t lose his balance, I suggest that another punch was
coming, from what I witnessed."
The "black eye"
46 Another of the plaintiff's sisters, Karen Leonard, gave evidence that on the Saturday (at an unspecified time) she went to the RHH to see her brother. She had not been able to see him before that. In evidence, she said that he had substantial swelling to his face and "a massive black eye to his left side." She said that the swelling was quite prominent.
47 Christy Barber said she saw her brother on the Sunday morning. Again, no specific time was stated. She said that he had "pretty bad bruising" and swelling to the left eye. She took a photograph which is in evidence. That photograph shows the plaintiff on his back with his head propped up. His eyes are closed, he is in a neck brace and he is intubated with the apparatus hooked up to his right side. The photograph shows his face and neck but is taken more from the right side than the left, so that not all of the left eye can be seen. There is bruising to the inside corner of the right eye with some lesser colouration underneath the right eye itself. There is dark purple bruising of the left eyelid, although in the photograph, the nose obscures the inside corner of the eye and the left upper part of the nose.
48 The RHH medical progress notes made at 9.30pm on Sunday 20 July include an entry; "Mouth & eye care attended to. L) eye bruising noted." The hospital records also contain two photographs of the plaintiff showing him in a similar situation as in the photograph taken by Ms Barber. The day and the time at which these photographs were taken is not discernible from the records and there is no other evidence. These photographs are taken from the plaintiff's right side. The bruising in the area of the left eye is much less pronounced; it is more concentrated in the inner corner of the eye. Not much of the right eye is discernible.
49 The RHH medical progress notes made at 6:45am on 19 July 2014, apparently on admission to the ICU, contain considerable handwritten detail of the plaintiff's representation and condition. The author of the notes has noted a laceration to the right fifth finger, but there is no note of any facial bruising or swelling, or of a black eye.
9 No 33/2023
50 The two photographs show two separate areas of the plaintiff's head that were bandaged. One is on the top of his head but more to the left side. The other effectively covers his left ear and comes relatively close the left eye. It is relevant to note that the hospital notes record the results of a CT scan
of the brain – presumably before surgery – as being a left frontal hematoma effecting the temporal and
parietal lobes with haemorrhaging in the tissue of the left parietal and occipital regions. The recorded details of the operation refer to an incision "starting anterior to the tragus and arcing posteriorly and approaching midline" and state that a large fronto-temporal craniotomy was elevated and extra-dural blood was noted. After the dura was opened, acute subdural blood was noted and evacuated; the underlining brain was contused. There was "significant venous bleeding from cortical veins" requiring close attention. There was also a single frontal burr hole made and an intracranial pressure monitor was inserted.
51 The RHH records contain a letter jointly signed by Dr Andrew Gauden, Neurosurgery Registrar, and Angela White as the Medico-Legal Officer, addressed to Detective Constable Krista Dennis. It is dated 2 September 2014. The request for the report is also contained in the records and it refers to an alleged assault on the plaintiff. The request asks for eight matters to be specifically addressed; in particular, the patient's physical state with particular reference to what was said to be the result of the assault on the plaintiff, and the opinion as to whether what was observed was consistent with the claimed assault.
52 The reply contains a description of the large acute subdural hematoma that was found along with associated bleeding etc, those injuries being said to be possibly "consistent with the alleged injury of a punch and fall backwards onto the pavement causing an injury to the parieto-occipital region." As to the issue of consistency with the claimed assault, the authors of the report say the injury sustained "could be consistent with a history of an assault obtained." There is no mention of any facial bruising or swelling, or of a black eye.
The alleged admissions
53 Ms Barber's evidence was that in early August, a few weeks after the incident, she went to Wentworth Park for a children's birthday party. She was with her friend Jade Honner. She saw the defendant there with a man named Mark Braslin. She talked with Mr Braslin's daughter. Mr Braslin and the defendant came to where they were, and Mr Braslin asked how Matthew (the plaintiff) was. She said he was doing the best he could and Mr Braslin then introduced the defendant. Her evidence continued:
"Atileo starting telling me about what had happened with Matt and that he’d wished
me that Matt – like, that Matt was going to pull through, everything was going to be
okay. And yeah, he just went on telling me about what happened with the incident and
that he tried to defend – that he used the force that he did to defend himself because he
had been bottled or stabbed in the back by someone a couple of weeks prior to it, and
then I just said, 'I don’t want to hear any more,' and I just walked away."
54 She was asked by the plaintiff' counsel if the defendant said anything about what had happened, or what he had felt just before the incident. She replied:
"No, he just said that he thought that Matt was aggressively drunk, that Matt was going
at him – he thought that Matt was going to go at him, and that’s what had happened. He reckons Matt was mouthing or something to him, which is – I just said I didn’t want
to hear any more and walked away."
55 Ms Barber was then asked about whether she had made a statement to the police. A statutory declaration made on 12 August 2014 is in the tendered bundle. (This, she later said, was made about a week after the alleged conversation.) She was shown a copy in order to refresh her memory, and after reading it, asked if it refreshed her memory about what the defendant said. She then added that the
10 No 33/2023
defendant had told her that Nick Woodward and Matthew had got into a fight upstairs in the middle of
the Club, and that the defendant and one of the other bouncers – she thought Chase Scott – had separated
the fight and then escorted Matthew down the stairs.
56 Counsel asked Ms Barber if it refreshed her memory about what the defendant said about how he was feeling "just before the incident", and she further added that the defendant said he thought Matthew was there to start arguments and fights, felt bad for what had happened and he wished Matthew all the best. Later, still in evidence-in-chief, she was again asked to refresh her memory from the statement as to anything the defendant "might have said as to how he felt just before the incident." Ms Barber then replied she recalled the defendant telling her that Matthew had left his jumper inside; that Mr Scott made a comment to Matthew which had made Matthew a bit angry, that Matthew had come back and apparently swung a hand at the defendant but it did not connect, and said the defendant went
on to say "that’s when he lost his cool because he thought Matt might’ve had something sharp with him
– something like that. He was just protecting himself, defending himself so he swung, he hit back at
Matt. He did not recall what hand it was that he used."
57 In cross-examination, Ms Barber agreed that her mother contacted the police on her behalf about a week after the alleged conversation. She thought it was important to speak to them but said she did not contact them immediately because she was overwhelmed, and was "in there with Matt" trying to make sure that he was okay. She said that it just then got the better of her and thought it was possibly important that piece of information that the police should know. She agreed that it was important to tell the police because if what the defendant had told her was true; she had evidence that it was he who in fact assaulted Matthew. She also agreed that she had seen the video of the incident not long after it happened.
58 Ms Barber's statutory declaration asserts that both Mr Braslin and the defendant said the defendant was not going to be charged, but in evidence Ms Barber said she had not read that before signing; it was not the defendant who said those words, it was Mr Braslin. She said he told her the defendant had said to him he would not be getting charged because he thought it was the plaintiff's fault. Her evidence was that the defendant told her Matthew was going to be charged for hitting him first.
59 In the statutory declaration she states that she told both men she found Matthew being charged for hitting the defendant very hard to believe, considering Matt was in bed and the defendant "was standing, talking etc". When asked about this Ms Barber corrected it, saying she did not say that to the defendant, but only to Mr Braslin.
60 She disagreed with the propositions that she had not spoken to the defendant at all at Wentworth Park; that he was simply not there with Mr Braslin. Counsel asked her whether she was aware that Jade Honner had made a subsequent statement to police saying that Fale was not there. Ms Barber said she disagreed, that Jade was on the phone for quite some time and that "she was not around when we were talking to Fale." When directed to the terms of the question, Ms Barber said that Ms Honner was there
at the time she made hers – they lived together at the time – but did not tell her she had told police that
Fale was not there.
61 A statutory declaration of Jade Honner made on 15 August 2014 – three days after the date of Ms Barber's – is in evidence. She says she knew the 'bouncers' at the Club including Mr Scott and the
defendant. She agreed she was at Wentworth Park in early August 2014 with Ms Barber. Her version
of events differs and is as follows:"As we were walking back to the car Christy pointed out Mark Braslin's car parked
nearby …. Mark was standing next to the car and asked Christy how her brother was. … Christy was talking to him. I was on the phone so I did not pay much attention. Iwas playing with the kids as well and did not see Farley [sic Fale] at the park and Christy did not mention to me that Farley.[sic] I was not present for a conversation
11 No 33/2023
with Mark, Farley and Christy at any time. I haven't spoken to Christy since we were at Wentworth Park together and she hasn't mentioned anything about a conversation she had with Farley to me."
62 In his evidence, the defendant said he could not remember whether he was at Wentworth Park within a few weeks of the incident, and specifically denied speaking to Mr Braslin there, adding that he not spoken to anybody about what had happened.
The defendant's case
63 The defendant gave unchallenged evidence of the prelude to the incident in accordance with what I earlier set out. I will take up his evidence at the point where the plaintiff was taken outside from the Club by Mr Thorne and him. The defendant said that he told the plaintiff to go and enjoy his night somewhere else. At that point the plaintiff was screaming, swearing and carrying on. He walked to the other side of the road still swearing. When he reached the other side he punched a road sign and then made his way back. He told the plaintiff not to be silly after which Mr Woodward intervened and there was a mutual pushing. The plaintiff walked to his (the defendant's) left "and that is when he swing a punch to my ear, to my left." He said it connected, and he continued:
"I feel a little bit tingle. And I put a lot of force, when I pushed him. I pushed him [with the right hand] on the bloody [left] shoulder. And so, I pushed him, I realised Matthew was falling back… [Interrupted]."
64 When asked to resume the narrative, he was asked what he was thinking at that stage; that is before he pushed him. The defendant said that when he was hit, all he could think of was the need to "protect" himself; the need to "defend" himself.
"So, I pushed him away from me, and by the time I was trying to grab him when he fall
back, it was too late. It just happened in, in a second….I used my left hand trying to grab him, but was to late, because I – as I pushed him, and I was trying to – I realised,
because I am on the top, on the, gutter. I stepped down, as well, at the same time when
I was trying to grab him, and I actually fell on him as well."
65 He said that he did not fall really hard on the plaintiff. When asked what he did as he (the defendant) fell he answered:
"All I do, is I bloody pushed him – as I pushed him away from me, I tried to grab him
with my left arm, my left hand. That guy was – so, I fell on him as well. I didn’t even
fall, fell, fell completely on him. I was literally, like, no time to brace myself off him.And I got up, and the security guard [Ryan Thorne] said to me, 'you gotta go, go back to the door' so, I have to walk back to the door in that time."
66 He recalled giving a statement to police but when asked whether it was on 19 July, he could not say; he could not remember. Apart from speaking to the police during 2014, he had not discussed the matter with anybody else. He does know Mark Braslin but has not discussed the incident with him. He denied having said to anybody that he had 'lost his cool' adding that he would usually say something like "I lost my shit". He said that he had never been stabbed in the back with a bottle nor that he had to separate the plaintiff and someone else earlier in the evening when they were fighting upstairs in the actual Club. He was confident that the plaintiff did not talk about having left a 'jumper', but about leaving a 'jacket'.
67 In cross-examination, the defendant confirmed that he had no memory of when he made his police statutory declaration. When it was suggested to him that he had gone to the police station with Mr Thorne about an hour or so after the incident, he still could not remember. He later said he could not remember where he was when spoke to the police except that it was not at his home. In response to the suggestion that when he finished work on the morning of 19 July he knew the plaintiff was likely to have been seriously injured, he said that he did not know the plaintiff was going to be in that situation.
12 No 33/2023
He agreed however, that he saw the plaintiff on the ground and he was unconscious. The following exchange immediately followed, and is one on which the plaintiff heavily relies:
"And you noticed that he was unresponsive when he was taken away in the ambulance,
didn’t you?......No, I didn’t remember him being taken to the ambulance, like I said. I
walked back to the door and I stand there because my mind was bloody going a hundred
mile an hour. I couldn’t remember what actually was just happening. And I couldn’tspeak to what’s happening. So I have to walk away from it. Like, Ryan Thorne told me to go away, to walk, go back to the door, so I did. And then I couldn’t remember what’s
happening after that, to be honest.
You couldn’t remember what had happened before it either. Is that what you’re saying?
You couldn’t get a picture of it?......Sorry? Sorry?
You couldn’t get a picture of what had just happened. When you were back at the door,
you couldn’t get a picture of what had happened in the altercation?......Yep. Yeah.
That’s correct?......Couldn’t remember what happened, what was happening.
You couldn’t – I meant, to make sure I’m getting a direct answer from you, Mr Atileo
– you couldn’t remember what had happened in the altercation when you were back at
the door, could you?......No.
You’re agreeing with that proposition?......I would say yes."
68 The defendant was taken through his statutory declaration that in fact was made to police on 19 July 2014. That statement contains a description of the two males pushing each other – which is obviously the confrontation between the plaintiff and Mr Woodward – and on its face contains a
different version:
"The male has walked to my left rear and then turned towards me and punched me to the left cheek with his right hand. I tried to grab the male to stop him hitting me again
and the male was walking backwards to get away from me. He took approximately 3
steps backwards before tripping over and he looked like he hit his head. The male stopped moving, so members of security went to provide first aid. My manager called an ambulance which arrived seven-eight minutes later. During this time security were
doing first aid and trying to wake the male up. … I wish for the male to be charged and
I am willing to attend court in relation to this matter." [My emphasis]
69 It was put to the defendant he knew when he spoke to the police, that if he said he pushed the plaintiff pretty hard, there was a real prospect he might face a prison sentence. His answer was that all
he did was push the plaintiff. He said he remembers "… all those things what was happening"; he
remembers "everything" but he repeated he could not remember when he gave his statement to police; what day it was. After some clarification for him of what the question meant and being given the opportunity in an adjournment to familiarise himself with the statement, his response to the question
was, "I would say that I would stick with my – what I said, or what happened, what I did on that night.
I actually pushed the male." Under continued cross-examination about this issue, he maintained that he told police that he pushed the plaintiff away from him and was trying to defend himself.
70 In evidence is a statutory declaration from Constable Sarah Morris dated 23 July 2014. She arrived at the scene with another uniformed officer at about 00:45. She states she spoke to the defendant who informed her that the plaintiff had been ejected due to intoxication and had been escorted out of the premises by himself and another security guard. Const Morris' statement asserts the defendant told her the following: the plaintiff walked away across the road before turning around and coming back, the plaintiff had "scruffed" a male who was standing on the footpath before coming at him and punching him to the side of the head and he had pushed him away to stop him punching him for a second time; the plaintiff stumbled back from the push, attempted to come at him again, but lost his footing on the kerb of the footpath causing him to fall backwards and hit his head on the concrete.
13 No 33/2023
71 The defendant was asked in cross-examination about speaking to a female police officer outside the Club shortly after and whether he had said the things asserted by Const Morris. He said he could not remember "at all' speaking to any female police officer outside the Club shortly after the incident.
72 In further cross-examination it was put that he punched the plaintiff, but he maintained a push not a punch, saying he pushed the plaintiff as he did not want to get hit again. He was trying to defend himself so he pushed him away; he did not punch him. The defendant said that he had not seen the video when he made his statement to police. It was put to him he was attempting to fashion his evidence to fit in with the video, and he said that all he remembered was pushing the plaintiff and trying to grab him, nothing else. It was suggested that he swung with a clinched right fist which hit the plaintiff in the left
eye. His answer as transcribed is "That’s true", but a check of the audio recording clearly reveals he
said, "That's not true."
73 Ryan Thorne made two written statements on the night about what he had seen. First, in evidence are some pages of the "Register of Crowd Controllers" which was kept on the club premises and had to be completed by each person for each shift. Its purpose was for the crowd controllers to note the detail of incidents that had happened during their shift. Mr Thorne has noted his start time as 00:30 with his finish time at 04:00. After describing the search for the jacket and him getting punched in the face, his description turns immediately to what happened outside. The notes read:
"The male then scruffed another male and pushed him at me whilst doing that he
attacked Fali (sic) punching him in the face…(illegible)… . Pushed him away the male
charged him again and slipped on the gutter causing him to fall backwards hitting his
head on the ground… I parchily (sic partially) observed this whilst dealing with the
male that was scruffed and pushed into me."
74 Mr Thorne also made a statutory declaration to police on 19 July 2014. He relates events leading up to the plaintiff's ejection from the Club, as I have previously related. After describing the ejection, he states he then observed the plaintiff scruff another male who was standing on the footpath. He said that he was standing behind the male who got 'scruffed' and he was pushed by the force of what happened.
75 His statutory declaration continues:
"I have caught the male who got scruffed and was dealing with him making sure he was okay. The male has then headed towards Faleupolu who was standing on the footpath just near the male he had scruffed. The male has rushed at Faleupolu in an
attempt to grab him, I am unsure if he got hold Faleupolu or not or whether he has hit Faleupolu. I did not get a full view of what happened next because I was still dealing
with the other male that got scruffed but I saw the aggressive male fall back on to the street and he had hit his head. I am unsure if the male and Faleupolu had gotten into an altercation after the male grabbed Faleupolu. From what I saw I think the male tripped over the kerb, has lost his footing, after attempting to have another go at Faleupolu." [My emphasis]
76 In the statutory declaration, Mr Thorne states that he and the defendant then went over to the plaintiff to check on him, at which time he was not very responsive. He and the defendant moved him to see if he was conscious and saw blood on the back of his head. They then placed the plaintiff in the recovery position, applied paper towel to the wound on his head and called the ambulance.
77 In his evidence-in-chief a further version emerged. Mr Thorne said that after they removed the plaintiff form the Club he (Thorne) did nothing; his job was done and he believed he remained outside. He believed the defendant also stayed out the front but he could not really remember. When asked about the plaintiff's movements, he "thought" he walked across the road. He went on to say the plaintiff came back, and continued:
14 No 33/2023
"He walked up to Fale, had an altercation with Fale – I wasn’t really looking at it. I
didn’t catch the – the whole incident I just seen both of them – the male and Fale sort
of fall over, I guess you could say.
And what did you do then when you saw that?......I – I ran to it.
Why?......Just to assist, yeah.
And Matthew was where at this point?......Oh sort of – oh –
Was he on his feet?......No, no, he was on the ground, yeah.
Okay, and what did you do, if anything, in relation to Matthew?......He wasn’t responsive, so we – oh, when I say ‘we’, I mean ‘me’, I – I think there was like a – a car there and it was sort of trying to get around us, obviously that’s quite a dangerous
position for any of us to be in, so I – I – we attempted to sort of move him a little bit to make it safe for us and then we – I tried to wake him up, because obviously he wasn’t responsive, and obviously wasn’t [indistinct words] so we – I rolled him into the
recovery position, obviously we’d –I’d instructed a co-worker, I believe, to call an
ambulance."
78 In cross-examination, Mr Thorne was shown the video and taken through it in various segments. He agreed that he was on the move towards the plaintiff and the defendant after the defendant was hit. After talking about the aftermath and the ambulance arriving, he agreed with the proposition that it was "a pretty serious incident; a man had been seriously injured". He could not remember having discussions immediately after the incident about what had happened, but said that he was pretty sure they both went to the police station later that night, or at least not long after the incident.
79 After being shown his statutory declaration and being reminded of what the video shows, it was put to him that it was not the case that he was dealing with the "other male" at the time of the altercation between the plaintiff and defendant. He answered, "Well, looking at the footage now, I would say that
it happened very quickly….so I still would have been possibly keeping an eye on that man, or, you know
sort off to the background with him." He agreed that it appeared to be the case that he had pole position
on what was happening between the two, after which the following exchange occurred:"What I want to suggest to you, Mr Thorne, is that it’s not that you didn’t see what
happened next. You did see what happened next and you saw Mr Atileo punch MrLeonard in the face with a clenched fist. That’s what I’m suggesting to you?......Okay.
That’s what you saw. I’m suggesting that’s what you saw?......Well, you can suggest
that. I don’t remember seeing that.
Well, you’d agree, wouldn’t you, that you weren’t dealing with the male you say you
were in your statement. Do you agree with that?......Yes, I agree with that.
And you’d agree, wouldn’t you, that, if you were to tell the police that Mr Atileo had
punched Mr Leonard in the face, Mr Atileo might be facing some serious charges?
You’d agree with that, wouldn’t you?......I would agree with that, yes.
Because that’s what happened, wasn’t it, Mr Thorne?......Like I said, I was not directly
looking at it.
Do you recall the – let’s say the, I showed you a little bit of it, but do you recall the
lead-up of the sort of seconds, tens of seconds, in the lead-up to that altercation? Do
you have a memory of that?......Not really, no."
80 He went on to confirm that he could not remember whether the plaintiff hit the defendant or not. He later said that immediately after the incident he told the defendant to go away or words to that effect. It was suggested to him that he did so because he disapproved of the defendant's conduct to
which he answered, "In the height of it, I don’t really remember why." He agreed with the proposition
15 No 33/2023
that there was no reason to dismiss the defendant unless he had done something unhelpful. In terms of the aftermath, he agreed that it was him and Mr Scott who was looking after the plaintiff on the ground, not him and the defendant.
81 Mr Thorne was taken to that part of the statement in which he said the defendant pushed the plaintiff away, who then charged at him again and slipped on the gutter causing him to fall backwards. He agreed that that was not an accurate account of what had happened, having seen the video. When it was put to him that he did not see what happened immediately before the plaintiff fell to the ground he said:
"Yes, I didn't really – I am trying to explain myself, when you have quite a few people
around you, there is a lot of music going on, it is loud, you are looking at 100 different
places. You are not fixing on one."
82 As to his account of what happened, Mr Thorne agreed that it was just his best guess, saying that is how he perceived things at the time.
83 Samantha Mead (then Webb) made a statutory declaration to police on 29 July 2014. Ms Mead says she and her friend, Jessica Calleja, flew to Hobart from Melbourne on the Friday. That evening they met Jacqueline Murkins and went out to socialise. They met up with a local man by the name of Ben who none of them had met before but joined the group. They went to the Club. Ms Mead described
the behaviour within the Club of a man – undoubtedly the plaintiff – who was generally being a
nuisance. She said that they all went downstairs and went outside to have a cigarette.
84 She describes the plaintiff being told to leave, then being on the traffic island yelling out, and then returning towards someone she described as "the short bouncer", who is undoubtedly the defendant. She says the plaintiff swung a punch at him but she was not sure if he managed to strike him. The bouncer blocked the punch and pushed him back, and told him that he needed to leave. The defendant
pushed the plaintiff with both hands using about 7 – 8/10 pressure and the plaintiff appeared to fall
backwards over his own feet.
85 Ms Webb's evidence is generally in accordance with what she told police on 29 July 2014. In evidence, Ms Mead identified from the video who was standing where. The group was standing between the umbrellas and she had her back to the Club door facing out to the roadway. Ms Murkins was in front of her with her back to the road, Ms Calleja was one her right and Ben was on her left. She said she saw the plaintiff outside. He was told by a security person to leave and became irate. He walked away, headed across the road through traffic and was stumbling around. He came back "later", looking very
aggressive, and approached a security person – undoubtedly the defendant. The plaintiff was very
aggressive. She did not hear any words exchanged.
86 She said the plaintiff was asked to leave, "and then he took a swing at the bouncer". She did not see whether any blow connected. She said the bouncer then pushed the plaintiff, the plaintiff then stumbled back a bit and tripped over and hit the ground. The force of the push was about a seven or eight on a scale of one to ten.
87 In cross-examination, she confirmed that the push by the defendant was a push with both hands. After the slow motion video was played to her, it was suggested that the push with two hands was a mistaken belief, and in fact the defendant punched the plaintiff with his right hand. She replied "it looks
like it from that. I still find it difficult to sort of tell….with that footage, yeah….yeah, it looks like it from
that, but yes, from what I can tell - …" Ms Mead was interrupted and reminded that it was really what
her memory was and not her interpretation of the video that was important. She said from her memory,
it looked like a push.16 No 33/2023
88 Counsel also suggested to Ms Mead that she was mistaken about the plaintiff having tripped; that in fact, he has fallen backwards from the force of the blow. She said that she thought it was a
combination of the two. Ms Mead had no recollection of there being "another woman" close by –
obviously the questioner was referring to Ms Jenkins. She acknowledged there was quite a bit going on, some of which possibly affected what she saw, and when it was put that she might not have had the best vision of what occurred, she replied, "Possibly."
89 Jacqueline Murkins' statutory declaration and evidence coincided with that of Ms Mead in relation to the events leading up to the incident, including the plaintiff's drunken behaviour in the Club. As to her statutory declaration, it is necessary to set out quite an amount of it. After describing how the plaintiff was ejected she says the plaintiff would wander off and then come back and try to get back in to the Club; this happened a few times. She says he appeared to have a female friend with him who had long brownish hair and was wearing all black pants and a shirt. He "also had a male there who was backing him up saying for the bouncers to let him in." Ms Murkins could not describe him. She says the 'bouncer', who is undoubtedly the defendant, kept telling the plaintiff that he had to leave.
90 She saw another male who was a member of the public, (undoubtedly Mr Woodward), try to tell the plaintiff to leave but this irritated him and he started throwing punches at him; "He was swinging punches at him and the bouncer but he could not hit anyone because he was too drunk and he would stumble and then have another go."
91 Ms Murkins says they decided to move back onto the footpath to stay out of the way. The statutory declaration continues:
"He also had a go at the Islander bouncer again and then went to walk off, but came back again and went for the bouncer, swinging punches which didn't appear to connect, or at least nothing noticeable enough for me to believe that he had hit hard. The Islander bouncer tried to restrain him by holding his hands out in front to block his arms from swinging and to prevent him from punching out. The bouncer let him go again as he just made him more aggressive. He came back at the bouncer again and tried to hit him and the bouncer pushed him to the chest. It was not a forceful push at all, but he stumbled backwards over his own feet. The push happened on the footpath and he
stumbled backwards into the car park area and fell onto the roadway, …."
92 In evidence, Ms Murkins explained that when the group went outside for a cigarette, she stood facing the Club building, with her back to the roadway, Ben was on her right, Ms Calleja on her left and Ms Mead facing her. She saw the plaintiff who "had obviously been kicked out and was yelling and carrying on about trying to get back in to the point where he had then left and then came back to try to get back in again." She did not see where he went to in the meantime but he "kind of disappeared, and then he came back in over my like right shoulder." The witness went on to say:
"He was quite argumentative with the bouncers and was adamant about getting back
into the night club. It was quite loud, lots of swearing and carrying on and at one point
there was people in the queue that were adamant that he wasn’t – like, 'Mate, you aredrunk, you are not getting in' situation. There was a lot of yelling and things by him where you know it got quite aggressive. And then he, you know, a couple of times tried to attack the bouncers.
And then what happened?..........So then what happened – basically what had happened is that he was told to go away, he wouldn’t go, and he then tried to attack one of the
bouncers. And then the bouncer, from where I was standing, it appeared to me if he put his arm up to stop him from hitting like, like the bouncer had put his arm up to stop him. And then kind of liked bounced off him and then like fell off like and stumbled a
couple of bit [sic] and then fell off on to – off the actual gutter and on to the pathwaywhere the cars where.
And did you see that man attempt to hit the bouncer?...........Yes
17 No 33/2023
Did you see the bouncer attempt to hit him?..........No."
93 In further evidence the witness said she was in Hobart organising a three day conference from the Monday. She was working setting up things on the Monday, when she either heard on the radio or saw something on television about "a king hit on the Friday night". She thought to herself that this was at the night club she was at, but it was not a king hit. She thought it might have been the plaintiff's mother on the TV. She spoke with a colleague who said to her that if that is not what she remembered, she needed to talk to police. Accordingly she went to the police station and made a statement.
94 The slow motion video was played to Ms Murkins in cross-examination. Counsel put that she would have had to turn around to see the whole incident and suggested the video showed she did not turn until the plaintiff was on the ground. She said she did turn around and could see herself in the video "turned around"; she remembered seeing "pretty much the entire thing". It was suggested that the defendant punched the plaintiff with his right fist before attempting to punch him with his left fist. Ms Murkins agreed that "from that angle" it looked like that was so, but said that was not her recollection. She did not accept that she might have been mistaken about what she saw.
95 For completeness, I will briefly mention the relevant parts of the statutory declarations of people who did not give evidence. Chase Scott made a statutory declaration to police on 21 July 2014. He describes the plaintiff pushing away a male known to him as 'Nick', after which they ushered the plaintiff away. He states that the plaintiff "came at [the defendant] and hit him to the left side of the jaw"; the defendant "then went at the guy to restrain him and I saw the guy fall backwards onto the concrete." [My emphasis]
96 In his statutory declaration of 21 July 2014, Mr Meaclem said he saw the plaintiff walk off a little about half way onto the road and then came back really aggressively. He ran really quickly up to Fale, and hit him on the chin. He did not see what sort of hit it was, or with what hand. He saw Fale's head go back and him turning away sightly before coming back and pushing the plaintiff backwards with both hands to his upper body. The plaintiff stumbled back a little and Fale followed him trying to grab hold of him. The other guards also tried to get hold of him before he fell backwards.
97 In his statutory declaration of 22 July 2014 Mr Ma'afu said the plaintiff walked back to Fale and was "carrying on". The defendant tried to hold the plaintiff away from him and told him to move on. At that stage the plaintiff raised his right hand and punched Fale to the jaw with a fist. Fale straight away pushed the male back, but did not see where he pushed him. The plaintiff took about two steps backwards and fell straight back and hit his head on the concrete. As soon as this happened two other security officers ran over to assist.
98 Staying with the security officers for the moment, Anton Bartulovic was a paramedic in a second ambulance which arrived at the scene. That was at about 00:57 hours. After the ambulance was parked, he and his partner started walking to where the first ambulance was. On the way he passed one
of the 'bouncers' and asked what had happened. The answer was, "Don’t know, we did not see anything,
we found him on the road. He could have tripped or been run over". Mr Bartulovic gave a description, which along with video, gives rise to the suggestion that this was Mr Scott. Accepting what Mr Bartulovic said is correct, I think that is a fair observation[2].
[2] Mr Scott is fairly easily identified in the video because of his bald head.
99 In her statutory declaration of 22 September 2014 Jessica Calleja described the plaintiff walking out on to the road looking quite unsteady on his feet and then returning. He walked up to the bouncer and raised his fist but at that point she looked away as she dislikes violence, and she did not see what happened. When she looked again the plaintiff was on the ground in the middle of the road and not moving. I do not have any information about "Ben" who was with her group, but a fair inference is that
18 No 33/2023
he was not able to be identified by investigating police. The statement of Nicholas Woodward reveals that he did not see what happened between the plaintiff and the defendant; by then he had his back to them and was only alerted to something happening when he heard his sister (Ms Jenkins) scream and yell.
Resolution
100 For reasons I will explain, I find that the defendant punched the plaintiff rather than pushed him, and the punch connected with his face. Of course, in assessing the witnesses, I have the benefit of previous statements made by them and comparisons between what they say and what is clearly visible on the video.
101 Of the witnesses I prefer the evidence of Ms Jenkins. In contrast to the others, what she said in evidence is consistent with what she told police that same day, and is corroborated by what can be seen on the video. It was clear that she was a little anxious and unsettled in the witness box; she became upset at one point in cross-examination to the extent where I adjourned for a short break, and she sometimes had difficulty expressing herself clearly. However, her demeanour was not the subject of criticism.
102 Ms Jenkins was the closest to the incident apart from Messrs Thorne and Scott. As will be recalled, counsel for the defendant put to Ms Jenkins an interpretation of her movements, the short point of which was that she was not looking in the plaintiff's direction at the time he struck the defendant, and then could not see what followed due to Mr Scott obscuring her view. She rejected that suggestion. The defendant relies on a detailed analysis of the video to support the contentions, arguing on that basis that "Ms Jenkins could not have seen the punch delivered by the plaintiff or the beginnings of the defendant's reaction. By the time she turned to see the action, her view was obstructed by Mr Scott."
103 The defendant did not argue that Ms Jenkins reconstructed her evidence based on her viewing the video. Her answer that she told police what she saw before watching the video, but before signing the declaration seems to have been accepted. In fact, senior counsel for the defendant said in closing, "I have no idea how she reconstructed her memory of this event, but she couldn't possibly have seen [the plaintiff punch the defendant] or know anything about whether it connected or not. She would have had to have been told about that."
104 For my part I cannot agree that the video supports the defendant's contentions. In my view, it supports Ms Jenkins' evidence. From CCTV footage of upstairs in the Club and from the critical video it is clear that on the night Ms Jenkins had long hair tied in a braid, or similarly arranged, and worn over her left shoulder. She was also carrying a coat over her left arm which she has not abandoned at any time she appears. Her general physical appearance does not change. When outside, although the video lacks clarity, her left side is readily discernible from those features. It is that which shows she was facing the plaintiff and the defendant at the time the plaintiff hit the defendant having completed a turn after her brother had retreated.
105 I regard Ms Jenkins as a reliable witness. It is possible that her view of the altercation was obscured for an instant but there is no reason to doubt that she saw the things she said she did. It is important to note that she had good reason to follow things as they unfolded. The plaintiff had just had a physical confrontation with her brother, who were known to each other. She effectively ran to where they were and remained in the immediate area even though Mr Woodward had gone back to the door.
Afterwards, she stayed very close – to one extent or another – to where the plaintiff was on the ground,
and at times took a close interest in what was going on with his care. There is nothing to compel the
conclusion that Ms Jenkins is an honest but mistaken witness.106 The defendant submits that no other "witness" supports Ms Jenkins claim that the defendant delivered a punch, saying that the police statements are all consistent with a push, or an attempt to
19 No 33/2023
restrain the plaintiff. Included in the analysis of the "witnesses'" evidence are the statutory declarations of Messrs Scott, Meaclem and Ma'afu, none of whom were called. The submission is also a little disingenuous in that of the three people in the immediate vicinity who must have had the clearest view
of what had happened – Messrs Scott and Thorne – only Mr Thorne has ever said that he saw the defendant push the plaintiff – and that statement was only contained in a brief note in the Crowd
Controller Register. I will come back to his later statements. I will also come back to the other matters relied on by the plaintiff. As to the submission generally, I simply say that the exercise is not an empirical one; the question is the quality of the evidence.
107 As to the defendant's evidence, in making an assessment I think it is proper to make due allowance for some things that were obvious. Meaning no disrespect, he is a Pacific Islander and seems to have had difficulty expressing himself in English. His language was often a little unusual. He sometimes struggled with syntax and the proper tenses of verbs giving rise to a risk of sometimes being misunderstood. As to the need for care in this situation see Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187, 66 NSWLR 186 at [21]. Further, the defendant was obviously uncomfortable in the court environment, much of which discomfort can be attributed to nothing more than the usual form of anxiety experienced by many witnesses giving evidence. All things considered, I did not find his evidence to be persuasive. To a large extent, my inability to accept his evidence follows from the impressions I formed from the video. It also arises from inconsistencies between statements he made out of court and with his evidence.
108 As to that last point matter, first there is the statutory declaration of Constable Morris. It is hearsay and I warn myself accordingly, but statements attributed to the defendant were put to him and I have the benefit of his answers. It will be recalled that he said he did not remember speaking to her. There is nothing inherently implausible about Constable Morris' statement and it should be given due weight. It will be recalled the defendant told Constable Morris that the plaintiff stumbled back from his push, attempted to come at him again but lost his footing causing him to fall backwards. The video clearly shows the last two parts of that description not to be true.
419 In relation to overnight interruptions, under the heading "My Profile" in an NDIS Plan approval dated 2 August 2021 authored by Karen Leonard, the "plaintiff" says "I am currently using a sleep apnoea machine. Sometimes this comes off at night and can impact my energy levels the next day if I
haven’t had a good night’s sleep." There is also the plaintiff's evidence. He said he goes to sleep at 11
o'clock at night through to 7.00 in the morning, and then wakes up and has a shower. That, of course, generally accords with Ms Curtain's information in August 2018 and, as I have noted, there has been some improvement in his mobility and general well-being since August 2018. At this point, I would again note that the plaintiff called no evidence from any carer presently involved with the plaintiff.
420 In terms of overall care, the evidence shows that the plaintiff requires regular assistance with domestic chores, but in his personal care he is very largely independent. He needs assistance with such things as administrating his enema. He is able to safely transfer from laying to sitting, sitting to standing, and to standing from the floor. He no longer has a urinary catheter of any description and has good urinary continence. However, while a relatively good level of independence exists, the extent of his disabilities and what he cannot do should not be overlooked.
421 The parties have now made supplementary submissions in relation to the agency costings. The plaintiff maintains that Ms Curtain's Claro costing should be adopted, with some allowance made for the fact that the cost is very likely to have increased since the list was published on 1 July 2022. The defendant's position is that if there is to be 24 hour care in the independent living scenario, then it should be at KinCare rates, but those for Personal Care Services, and not Personal Care Services (High level). The former is $5,999.34 per week, a relatively modest reduction form the higher level.
422 Looking at all of the evidence relating to the plaintiff's disabilities and the general nature and level of care provided, I am satisfied that the general level of care required is that reflected in the Claro costings or those of the KinCare high level. It seems to me the critical issue in all of this is attempting an assessment of the plaintiff's needs for overnight care on the available evidence.
423 I accept that there is a need for the plaintiff to regularly and properly use the CPAP device; otherwise he is at risk of cardio vascular complications. It is very difficult to know what to make of the frequency of mask removal from "reported incidents" or the plaintiff's own description of it happening "sometimes." To constantly monitor the situation would seem to require active car. His present overnight care is described as sleepover, but with the carer able to respond as required. There is no evidence as to how the plaintiff's removal of his mask is detected; whether the plaintiff becomes aware and alerts the carer, or it is simply detected in the morning.
424 Notwithstanding Ms Curtain's description of a sleepover shift, there is some evidence which may suggest a system of observations of the plaintiff during the night. That may occur as part of the overall care of the four residents. The evidence is in the form of "shift" notes, an extract of which for two to three days in early July 2022 was tendered by the defendant.[22] Starting at 22:49 on 2 July and ending at 07:07 on 3 July there are five notes which read "An observation has been added to Sighting Chart by [name of carer on date and time]". Starting at 23:59 on 4 July and ending at 06:37 on 5 July, there are four similar notes. While in the main these relate to various times spread across the morning, no real distinct pattern of regularity emerges.[23] The sighting chart was not in evidence. A note made at
[22] Exhibit D6.
[23] On 3 July there is one entry for 02:47 followed by one at 04:13 and another at 04:38.70 No 33/2023
06:38 on 5 July records that "frequent" sight checks were done, and the plaintiff slept well throughout
the night and was still sleep at the time of the note.425 I will examine the KinCare weekly rate of $6,123.75 in this context. If it is assumed that there is one disturbance of the night carer per week, and the particular shift reverts to the standard hourly rate, and if it is assumed that over the year 48 such disturbances happen on a week night, with two on a Saturday and two on a Sunday, the net annual increase in cost is $46,183.60.[24] Twice a week per year with the same ratio across the week results in a net annual increase of $92,367.20. Divided by 52 weeks, the additional weekly costs become respectively $888.15 and $1,776.30. Added to the standard Daily care 24 hour rate ($6,123.75 per week) the resultant total weekly cost figures are therefore $7,052 and $7,980.40.
[24] The hourly rates are $63.50 for weekdays, and $69.50 for weeknights. As the delineation is not clear, I have used the426 Of course, the difference between the present care costs and that of the proposed "one on one" care is mainly because the present care is shared with three others, and so the cost is reduced. I also note that the Claro pricelist excludes NDIS for which, and for other funded schemes, there seems to be a different rate; I assume a lower one. In any case, the plaintiff's proposal puts him with a dedicated carer and therefore not subject to the competing demands of his housemates.
427 Obviously, I need to bear in mind who carries the onus. If I were minded to take the independent living/attendant care pathway, I need to be satisfied of the need that creates the expense, and the reasonableness of the expense. As I have noted, in her 2018 report Ms Curtain said that allowance would need to be made for the possible need for an active overnight carer at some time in the future. I think that remains a reasonable proposition. I am satisfied that need the present level of care will remain; I doubt that any further improvements in mobility will alter that basic need to any great extent. I accept that the costs of any agency are likely to have increased somewhat since the time of the last price lists in evidence.
428 At the same time, I accept the defendant's point that 24 hour care for seven days per week for 52 weeks of the year may not be necessary because of the family assistance that would be available. Were the independent living scenario to be realised, it is likely that there are times when the plaintiff would, for instance, be looked after at or away from his home and a carer would not be necessary. The "football" trip to Melbourne is an example. I do not suggest that the periods without the need for a carer would be extended periods, but an accumulation of a few days every now and then could well total up to two weeks a year.
429 On all of the material I am not satisfied that a reasonable level of care cannot be provided at a lesser figure than that claimed. I am satisfied the starting point is the KinCare 24 hour daily rate. That needs upwards adjustment for the overnight care issues, present and future. Doing the best I can and with all things considered, in my view a reasonable weekly figure for attendant care would be in the order of $8,000. I think a rounding up to a discounted figure of $8.5 million is appropriate and justified.
430 I now return to the broader critical question. Notwithstanding senior counsel for the plaintiff's blunt assertion that an award for housing "must happen", the issue is more complex. It requires careful thought and analysis. To begin with, I respectfully agree with what Kniepp J said in Wieben v Wain (above). Although the test is objective, there is nothing to suggest that a plaintiff's wishes should be ignored unless they are objectively irrational, or without any foundation. In this case, I am satisfied that the plaintiff has sufficient insight into his situation, and that his stated severe dislike of his current
71 No 33/2023
environment appears to have, for various reasons, some rational basis. His future involves about 30
years or so in that environment were it not changed.431 In terms of the Arthur Robinson test, I think it can be fairly said that were the plaintiff spending his own money, with sufficient funds, being well advised and reasonably careful for his own welfare, he would be likely to use it to improve his living environment. I am satisfied on the whole of evidence that a change in living arrangements would substantially benefit the plaintiff in terms of his level of physical and mental functioning, and assist him to be much better integrated into the wider community.
432 Having given the issue the close and careful consideration it deserves, I am satisfied that awards should be made to enable the plaintiff to live independently, Overall, I am satisfied the benefits to be gained justify the additional cost, considerable though it is. I would therefore award the sum of $652,695 for housing and the sum of $8.5 million for future attendant care.
Griffiths v Kerkemeyer damages
433 The plaintiff's claim essentially relates to gratuitous services provided by his sister, Karen Leonard. The amount claimed is based on five hours a week for the past and future, at a rate of $40 an hour, that being a reduction from the commercial rate shown by the evidence to be $65 an hour. That reduction is said to take into account that the type of care is "in part, companionship akin to diversional therapy." The defendant chose only to deal with this issue on the basis that the Civil Liability Act applied, the submission being that on the evidence no award should be made because the minimum requirement of six hours set out in s 28B of the Act had not been met. The plaintiff's claim, of course, is not governed by the Act.
434 There is no reason to doubt Ms Leonard's evidence in this respect. She said she visited the plaintiff two or three times a week and had done, it seems, for a considerable time going back essentially when he came out of hospital. She said she went to be a companion to him; they watch the football together and play games. However, she does assist him with any issues with technology that he encounters, she shops for him for food, drink and personal items that he wants or needs. The visits can be up to two hours or more but that can at times involve just watching the football.
435 Ms Leonard said he often rings her asking her to follow up such things as equipment that he is due to get or money that is due to be paid into his account. Ms Leonard is the "plan nominee" under the NDIS. In that role she reviews the monthly planned management documents, and effectively audits the receipt and expenditure of monies under the scheme. Ms Leonard also deals with the Public Trustee in relation to payments to the plaintiff.
436 A particular area of her activity relates to the plaintiff's medical appointments. Ms Leonard said that about two and a half years ago Eskleigh were not taking the plaintiff to his appointments, so she "took over the medical side of things so all of those appointments come to my house" she notes the appointments in her diary and makes sure the plaintiff understands when things are to happen. She receives all his mail and notes any appointments or commitments that the plaintiff needs to keep. In terms of the arrangements for the medical appointments, that of itself can take up to an hour or two "within a week, fortnight" (sic).
437 Although the line may be blurred in this and many similar cases, there still needs to be an attempt to draw that line between times spent in companionship and emotional support on the one hand, and services rendered on the other. In CSR Ltd v Eddy [2005] HCA 64, 226 CLR 1 at [24], the majority said that the damages are awarded to plaintiffs to compensate them for the cost, whether actually incurred or not, of services rendered to them because of their inadequacy to render it to themselves. Emotional support does not fall within that category, see also Wormleaton v Thomas & Coffey Ltd (No 4) [2015] NSWSC 260 at [132], [134].
72 No 33/2023
438 In this case I am satisfied that the plaintiff is entitled to Griffiths v Kerkemeyer damages, but on the evidence in the present case, it is difficult to determine with any degree of certainty the time actually spent engaged in services needed by the plaintiff as a result of the injury and which were gratuitously provided. Doing the best I can with Ms Leonard's estimates, I think it fair to allow three hours a week at the suggested rate of $40 an hour.[25] As finally framed at trial, the claim was for the past seven years and six months. That puts the commencement date at a point of about one year after the plaintiff left hospital. That date was 16 April 2015 and so I think a reasonable commencement date is 17 April 2016. As far as the past loss is concerned, the period to date is 387 weeks making the award $46,440. From now to the end of life, discounted at the appropriate rate (1050) is $126,000. The total amount I allow under this head is $172,440.
[25] Section 28B3(a) of the Civil Liability Act provides that the hourly rate for damages for gratuitous services is not to
Interstate travel
439 The parties are agreed that it is reasonable to allow the plaintiff the cost of airfares for his carer to accompany him to Melbourne once a year for the balance of his life. The reasonable cost of a carer to fly with the plaintiff to Melbourne is $374.78. At a weekly cost of $7.20, the future costs discounted at the appropriate rate, again slightly rounded up, is $7,576 and I allow that amount.
Damages for pain and suffering, loss of amenities etc.
440 I have already set out the injuries suffered by the plaintiff, short details of the treatment received and his present disabilities. He went through a difficult and protracted recovery period. He is very substantially disabled mentally and physically. He has serious cognitive deficits. Much of this is detailed in the section relating to life expectancy. Over time there has been considerable improvements in his mobility although he remains in need of 24 hour care. He has worked hard in his rehabilitation. Much of the material shows a high level of motivation and determination to do as much as he can. Dr Denehey has remarked that he "cannot be commended enough for the progress he has made and his commitment and attitude towards his rehabilitation over many years."
441 Prof Davis summarises the plaintiff's neurological condition as requiring around-the-clock supervision but with fairly minimal assistance with activity such as dressing and showering. His neurological deficits include severe impairment of high mental functioning, organic behavioural changes typical to severe brain injuries (with agitation and outbursts), bulbar dysfunction with particular impact on his speech (severe dysarthria) together with asymmetric quadraparesis. In evidence, the plaintiff could estimate the number of times he had fallen over and described how he is now able to mobilise with the walking stick. He said he now stutters quite badly every now and again, adding, "I hate stuttering, trust me. I hate it so bad".
442 In Dr Denehey's view the plaintiff has limited insight into his cognitive difficulties. In evidence, he was able to say that he has been told things about his pre-injury life but he cannot remember. He said he cannot remember names and has great difficulty retaining information given to him. He is aware that his situation and his behaviour have alienated his daughter and he is very keen to reconcile with her.
443 When asked about his brain, after some non-responsive attempts at answering the question, he
mentioned that it was all swollen when he was hit, adding, "… my brain's on the bed for – I was in a
coma for two weeks, I can't remember, my mind was on the bed, my brain was, yeah, and there is that
scary horror in there. I can't remember anything else." He is generally aware that his brain does not
work as it did beforehand.73 No 33/2023
444 Obviously, all his previous recreational pursuits are now denied to him apart from watching AFL games on the television and the proposed annual trip to Melbourne to watch a game. He maintains an ability to engage with his family, and enjoys doing that. He does things in the share home such as jigsaw puzzles and using Lego, and is sometimes taken on outings to things he enjoys such as car racing.
445 The plaintiff was a relatively young man when he was injured. He will have to cope with his disabilities and changed life for some three decades hence. I take into account his present circumstances but also that his disabilities might be mitigated to an extent by more pro-active care, and his enjoyment of life might improve because of the provision I have made for his housing and future care. I bear in mind that the question is fair and reasonable compensation for the injuries received and the disabilities caused, having regard to the degree to which economic uncertainty has been removed by awards under other heads of damage. In my view an appropriate award under this head is $350,000.
Summary of items
446
Loss of earning capacity (past & future) $1,542,519.30 Interest on past aspect of loss of earning capacity $26,524.42 Past medical expenses $38,868.32 Future medical expenses $287,877.25 Special damages $2,065,721.50 Aids and equipment $28,765 Housing $652.695 Future attendant care $8,500,000 Griffiths v Kerkemeyer damages $172,440 Interstate travel $7,576 Pain and suffering, loss of amenities $350,000 TOTAL $13,672,986.79
Administration costs
447 In accordance with Nicholson v Nicholson (1994) 35 NSWLR 308 and Shellharbour City Council v Rigby [2006] NSWCA 308 at [288]-[292] (and, I would respectfully say, with fairness and common sense) the figure for damages has to be reduced for contributory negligence before administration costs are considered. After applying the 20% reduction, the amount is $10,938,389.43. The plaintiff accepts that the amount of the "special damages" will not be managed, and that sum is to be excluded for the purposes of the calculation. The amount to be considered for management is therefore $8,872,667.93.
| 448 | The Public Trustee is the administrator of the plaintiff's estate pursuant to an order made by the Guardianship and Administration Board on 3 February 2021. That order expires on 2 February 2024 |
74 No 33/2023
but the parties are agreed I proceed on the assumption that the order will be renewed, and continue to be renewed. I have an exhibit entitled "Cost of Investment Management Factors" from Cumpston Sarjeant, consulting actuaries. It sets out the fund management fees of (among others) the Public Trustee based on their online fees and charges, which, I assume, are in accordance with reg 6 and schedule 1 of the Public Trustee Regulations 2019.
449 I was told the tables in the exhibit factor in "fund management costs" as allowed in Gray (by her tutor Gray) v Richards [2014] HCA 40, 253 CLR 660. The tables are a little crude in that they show fund amount increases in $5 million increments and duration increments of 20 years. Using the 3% discount rate as set out in the exhibit, I have taken the proportionate amount of the figure for $10 million for a period slightly more than the result of the addition of the 20 and 40 year amounts, divided by two; $1,750,000. On those calculations, the amount for administration costs is $1,552,250. That amount must then be added to the total damages as reduced for contributory negligence: $10,938,389.43.
Final outcome
450 Rounding up the result very slightly, I order that judgment be entered for the plaintiff Public Trustee against the first and fourth defendants for the sum of $12,490,640 for damages and interest.*
| *Note: |
| On 20 September 2023 I ordered that judgment be entered for the Public Trustee against the first and fourth defendants for the sum of $12,520,240 for damages and interest. I published my reasons to the parties. At the same time, I directed that the order lay in Court for seven days pending submissions from the parties about any arithmetical errors I had made including my choice of multipliers, the method of finalising the judgment figure, or any similar matter that could be properly be dealt with before formal judgment was entered. |
| Within the seven day period, the solicitors for the first and fourth defendants notified the court of two errors in my calculations. Those errors related to the interest payable on the past aspect of loss of earning capacity, and to the cost of housing. The plaintiff's solicitors were agreed as to the correct calculations, and I record my gratitude to the parties' legal advisors for their assistance. |
| On 29 September 2023, I amended the order made on 20 September 2023 by substituting the |
| amount of $12,490,640 for the previous judgment sum. These reasons – published on 29 September – |
| have been revised to incorporate the changes made to the particular calculations and amounts, and to the consequent calculation of the final judgment figure. The affected paragraphs were [369], [372], [410], [432] and, of course, [446]-[450]. |
| it as "Meecham". Whatever the pronunciation, the correct spelling – as shown by a statutory declaration of his in evidence – is Meaclem. |
for the purposes of the discussion. I will also refer to conduct that constitutes a serious offence as "criminal conduct".
Young CJ in Eq disagreed; he allowed the appeal in part and ordered there be judgment for the plaintiff subject to a reduction for contributory negligence of 50% in lieu of the 25% ordered by the trial judge.
serious offence within the meaning of the section.
and Damages) Act 2003 (NT) s 10(2)
of Police [2000] AC 360 at 382; Standard Chartered Bank v Pakistan Shipping Corporation [2003] 1 AC 959 at 969. The second limb relates to plaintiffs and the conduct of a plaintiff cannot be "fault" unless it gives rise to a defence of contributory negligence at common law.
any combination totalling that figure, in any of the TasPlan documents, and observe the difference is of no consequence.
that Ms Curtain's instructions directed her to consider what was reasonable rather than ideal in the way expressed by
Barwick CJ in Arthur Robinson at 662 (above).
weeknight figure which should offset the higher rate that applies to a public holiday should the event happen on one of
those days.
exceed 1/40th of adult average weekly earnings. The sum of $40 per hour appears to be close to that amount.
- AGLC
- Public Trustee as Administrator of the Estate of Matthew Leonard v; Atileo [2023] TASSC 33
- Case
- [2023] TASSC 33
- Decision Date
CaseChat Overview and Summary
The court examined the defence of self-defence, noting that the defendant bears the onus of proving such a defence. The court considered whether Atileo had demonstrated that he acted in response to an immediate and unlawful threat from Matthew Leonard and that his actions were proportionate to the threat perceived. In reaching its decision, the court applied the principles established in relevant case law, which detail the criteria for establishing self-defence. The court concluded that Atileo had not met the necessary threshold to successfully invoke self-defence as a defence to the trespass claim. The court found that Atileo's actions were not justified under the circumstances, leading to a determination in favour of the plaintiff.
The Supreme Court found that Atileo's defence of self-defence was insufficient. Consequently, Atileo's actions were deemed unlawful, and he was held liable for the trespass to the person of Matthew Leonard. The court provided detailed reasoning for its decision, highlighting the specific failings in Atileo's evidence and arguments. The final orders of the court required Atileo to compensate the Public Trustee for the damages incurred due to the trespass. The court did not grant Atileo any relief from liability, thereby affirming the plaintiff's claim.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.