Ross Brown v Drummoyne Sports Club Ltd

[2007] NSWDC 170

CITATION:	Ross Brown v Drummoyne Sports Club Ltd [2007] NSWDC 170 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	19/09/06 -21/09/06, 03/11/06, 23/11/06, 12/12/06, 26/02/07-02/03/07
JUDGMENT DATE:	8 March 2007
EX TEMPORE JUDGMENT DATE:	8 March 2007
JURISDICTION:	Civil
JUDGMENT OF:	Phegan DCJ
DECISION:	Verdict and Judgment for the plaintiff in the sum of $72,855.31; Defendant to pay plaintiff's costs on the ordinary basis up to 18 September 2006 and on an indemnity basis after that date subject to costs orders in favour of the defendant made on 21 September 2006
CATCHWORDS:	occupiers liability - act of third party - armed robbery - injury to patron
LEGISLATION CITED:	Civil Liability Act 2002
CASES CITED:	Raimondo v The State of South Australia (1979) 23 ALR 573 Husher v Husher (1999) 197 CLR 138 Modbury Triangle Shopping Centre Pty Limited v Anzil (2000) 205 CLR 254 Proprietors of SP17226 v Drakulic (2000) 55 NSWLR 659 Ashrafi Persian Trading Company v Ashrafinia [2001] NSWCA 243 Makita v Sprowles (2001) 52 NSWLR 705 Cole v South Tweed Heads Rugby Leagues Club [2004] HCA 29 State of New South Wales v Godfrey [2004] NSWCA 113 English v Rogers [2005] NSWCA 327 Spedding v Nobles [2007] NSWCA 29 Wagstaff v Haslam [2007] NSWCA 38
PARTIES:	Ross Brown [Plaintiff] Drummoyne Sports Club Limited [Defendant]
FILE NUMBER(S):	2849/05
COUNSEL:	Mr P Bates [Plaintiff] Mr J Gracie [Defendant]
SOLICITORS:	Consolidated Lawyers [Plaintiff] A S Dunn Lawyers [Defendant]

JUDGMENT

1 HIS HONOUR: The claim for damages against the defendant arose out of an injury which the plaintiff sustained on Wednesday, 10 July 2002.

2 The plaintiff was a social member of the defendant club at an annual fee of $5.50 and took advantage of his membership to spend three or four afternoons each week visiting the club for drinks with friends during the late afternoon, early evening. He was at the time a semi-retired qualified pharmacist and his reduced working hours allowed him the luxury of regular visits to the club, of the sort I have just described.

3 Wednesday evenings at the club were relatively active and drew a larger number of patrons than was the case on other nights of the week because of both the conduct of what was known as a “badge draw”, a draw of a sum of money which accumulated, if there was no winner, at $50 a time, to the point where the jackpot was paid out to a member who happened to be present and whose membership number was drawn from the draw. Wednesday night was also trivia night, and, as was the case on other nights of the week, the restaurant of the premises was also open.

4 On this particular Wednesday evening the evidence was that in the bar area, when the incident occurred in which the plaintiff was injured, there was somewhere between 20 and 30 patrons. It is necessary, in order to put the incident in which the plaintiff was injured into context, to say something about the physical layout of the club premises.

5 The entrance to the club faced a northerly direction. Having said that, I should just interrupt the judgment to say I note on Exhibit 11 that the points of the compass have been reorganised. I was relying on Exhibit A which is a sketch rather than the more detailed drawing of the current layout of the premises. According to Exhibit A the entrance, and therefore the front of the club building, faced more or less in a northerly direction. I will proceed, with regard to the position of other parts of the club, to use that reference point.

6 I see that the alternative suggested in Exhibit 11 and in turn in Exhibit 12 is that the club faced a westerly direction. But on the assumption that the club did face more or less in a northerly direction, the entrance to the club premises was by way of a set of stairs which led from the car park in the front of the building to an entrance foyer, which was accessed through glass doors situated across the front of the foyer area and servicing the landing at the top of the stairs. Those glass doors were operated when unlocked by taking one or other of the hinged doors at the centre of the glassed area by the handle and opening it outwards towards the exterior landing. When the doors were locked, they could not be opened from the outside but could still be operated from the inside with the assistance of a bar across the centre panel of the door which, when pressed down, relieved the bolts which secured the door to the floor of the premises and allowed a person exiting the premises to push the door open and leave.

7 Inside the foyer area there were two further doors, but swing doors which were not capable of being locked, one leading to the left, that is in an easterly direction into the bar area, and I will go on to say something more about the details of that area in a moment. Before those swing doors leading to the bar area was the entrance to the manager’s office which was situated immediately inside the entrance doors on the left, that is on the eastern side of the foyer. Access to the manager’s office was only by way of the foyer and it could not be accessed from inside the bar area which it adjoined. On the right hand, that is the western side, of the entrance foyer was the dining room which was accessed by doors leading from the foyer into that area.

8 The bar area consisted of a number of raised tables around which were high stools designed to service the height of the tables or the bar itself which was situated just to the southern side of where the tables were arranged. There was other seating in the lounge area towards the large bay window on the northern side of the bar area.

9 At the eastern end of the bar area were two rooms, one on the left where poker machines were situated and the other on the right which was the TAB room. Behind the bar, which ran along the southern side of the bar area, were a series of other rooms, the first of which going from east to west was the office in which the safe was situated. I will have something more to say about how the safe itself was designed in a moment.

10 There was then a large storage area and at the western end of the section behind the bar was the cool room, where drinks were stored, and between the cool room itself and the bar area, facing out to the bar itself, was the cold drinks cabinet from which drinks could be removed by the barman for the purpose of serving patrons. On the wall immediately alongside the cold drinks cabinet and between that cabinet and the bar itself, was a whiteboard containing information for patrons and, in particular, and of some relevance to the occasion of the plaintiff’s injury, details of the amount of the badge draw on any particular badge draw night. A passageway led from the bar area, which led to both the dining area and kitchen and to toilets behind the dining area. It is not necessary to pursue this part of the building in any further detail.

11 On the night in question the plaintiff had spent some time, as he did on a quite regular basis, drinking with friends from about 6.45 until close to 8.45. He had made a point of being in the bar area for the purpose of the badge draw, which on that occasion he recalled was won for a sum of $1,950, which would have been advertised on the whiteboard to which I referred.

12 It was the plaintiff’s evidence that he was something of a car enthusiast, but because he was a local resident and came to and from the club on foot he was not actually using a vehicle himself. As he left the premises and made his way through the car park, he saw a particular model of a Mercedes Benz which caught his attention. He had a conversation with a car dealer who he thought might have been responsible for bringing the vehicle to the club and might have been able to give him some more information about it. As it turned out, that was not the case, but the dealer invited the plaintiff to return to the bar with him for a drink, an invitation which the plaintiff, no doubt to his ultimate regret, accepted.

13 He took up a position at the second of the raised tables which I described earlier. He sat on a stool in a position which had him facing the rear of the manager’s office, that is roughly in a north-westerly direction. While he was sitting there, and this was on his estimate about 15 minutes after he had returned to the club and therefore made it approximately 9pm, he heard what he described as a “stampede” in the foyer. Immediately after that three heavily built men dressed in white overalls, matching boots and gloves and with hoods over their heads entered the bar area. The plaintiff, from where he was sitting in the way I have described, looked over his left shoulder towards the swinging doors through which the three intruders had entered, at which point the men were inside the bar area and were shouting “Everybody on the floor” or words to that effect.

14 The plaintiff saw a man standing at the bar at this stage, that is another patron, who it appeared from further evidence was a Mr Norman McIntyre. I will at this point interrupt the account of what happened to the plaintiff to summarise the evidence of Mr McIntyre and of other witnesses in the defendant’s case who were present at the time. I do that partly to give a fuller picture of the actions taken by the three intruders, some of which the plaintiff himself was not in a position to observe, and therefore to give a better indication of their conduct and the effect which their conduct had on those who were present. The accounts of the witnesses shared an overall consistency although each of them observed some particular details which others did not see. Certainly there is no significant inconsistency between any of the accounts that were given except with regard to some details, for example the clothes worn by the intruders. In the case of Mr McIntyre his evidence was not, as the plaintiff’s was, that they were all dressed from head to foot in white. The colours of the clothing were somewhat different as he remembered them but that is a relatively peripheral matter and differences in details of that kind can very often be the consequence of a genuine mistakes in such circumstances.

15 Mr McIntyre’s evidence was tendered by way of a written statement which became Exhibit 23, but he also gave oral evidence. According to Mr McIntyre one man that is one of the three intruders who had broken into the bar area, jumped the bar and another approached him as had been observed by the plaintiff. The intruder who approached Mr McIntyre proceeded to put him in a headlock and pointed a gun at his head. Mr McIntyre instinctively grabbed for the gun which snapped in half when he struck it. It was then obvious to Mr McIntyre that it was some sort of a toy rather than a real firearm.

16 There was then a struggle between the two men who fell to the floor and, after landing blows on Mr McIntyre, the intruder then stood up and continued kicking Mr McIntyre while he was on the ground.

17 In addition to the evidence of Mr McIntyre, there is also the evidence of Mr Elliot Ritchie who was the barman on duty at the time of the incident. Another employee by the name of Ian Logan was also on duty but the evidence is that, despite efforts on the part of the defendant, he could not be traced and therefore was not available to give evidence. There is no adverse inference to be drawn from his failure to do so.

18 According to Mr Ritchie, it was about 9 o’clock. He was serving at the bar although at the particular moment had his back to the bar facing the drinks cabinet. While he still had his back to the bar a man came from behind, this reasonably can be concluded was the person who Mr McIntyre had observed jumping over the bar, shouting “Get down”. Mr Ritchie was aware that there were two other men in the company of the man who jumped the bar, although he was not in a position to closely observe exactly what either of them was doing. The man who jumped the bar asked for money from the till.

19 There were three locations either on or under the bar where cash was kept in the ordinary course of business. The till itself, to which the intruder had specifically referred, held cash for the purpose of bar purchases. There was another drawer underneath the bar itself towards the eastern end where the monies required by patrons using the TAB was kept and another drawer with the corresponding purpose for the supply of money for use in the poker machines.

20 There was, as I noted earlier, the safe in the office immediately behind the bar area between the TAB room and the storage room behind the bar. The way in which the safe, or safes more accurately, were arranged were as follows. There was a large, heavy metal door in the wall of the safe area on the western side of the office which, when opened, revealed yet another and relatively old safe which was operated by a handle. This in turn, contained a smaller safe which was operated by way of a time lock with a time delay of ten minutes. It was only the first of those safes which was open. Mr Ritchie told the intruder that he did not know how to open the smaller safe although that was not true. Nonetheless the smaller safe would not, because of the time lock, have been readily opened and certainly would not have opened during the short period of time the intruders remained on the premises.

21 According to Mr Ritchie, the intruder took a box of change from the larger safe and it was during the course of the entry into the safe that he noticed that the intruder, like the man who had attacked Mr McIntyre, was carrying a plastic gun. However he had, up until that time, believed that it was a real weapon. It was at this point that the man left the bar area and joined the other two and all three of them left the premises as rapidly as they had arrived. They were pursued by two patrons one of which was Mr McIntyre himself, notwithstanding the injuries which he had sustained, but they were not apprehended.

22 By this time others had already phoned the police, including Mr Ian Wiese the club manager. It was Mr Wiese’s evidence that he was on duty that evening, although at the time of the entry of the intruders, he had been inside his office and only came to hear of their entry when he heard what he described as a thump in the bar area. It was sufficiently loud to draw him from his office through the swinging doors into the bar area. When he entered he saw two of the men, one at this stage behind the bar, the man who had attacked Mr Ritchie, and the man holding a gun at Mr McIntyre’s head. Other patrons Mr Wiese observed had at that stage got onto the floor, in response to the direction from the intruders to do so.

23 Realising that he had not been seen by the intruders, he retreated back through the doors and phoned triple 0 in order to call the police. By the time he put his phone down the three intruders had left the premises. On his evidence they had escaped with a total amount of $1,541.80.

24 I return now to the plaintiff’s account of what happened to him, which was not directly observed by any of the other three witnesses to whom I have referred. With regard to the plaintiff’s evidence generally, the plaintiff was a very straightforward and reliable historian who gave most of his evidence without any embellishment, although it has to be said that, when it came to aspects affecting the damages which he might recover, namely the injuries which he sustained and, more importantly, their long term effect, I am satisfied that, to some extent, his evidence was coloured by his psychiatric condition which I will have occasion to refer to in due course and did involve a certain amount of exaggeration. But even in that respect I am not satisfied that this was any deliberate attempt on his part to deceive the Court and generally I found him a truthful and reliable witness and a good historian. He was able to recollect, in some detail, the events surrounding the incident in which he was involved.

25 According to Mr Brown, he saw Mr McIntyre struggling on the ground with one of the intruders and the next thing he experienced was feeling what he described as something poking into his back around about his left rib. He then felt somebody grabbing at his right hand rear pocket where his wallet was kept. He reached around the front of his body with his left hand and felt the wrist of the person who was attempting to get his wallet from his pocket. His response to the attempt to rob him was to swing his right arm back towards where he now had ascertained his assailant was standing and succeeded in hitting the assailant across the face. The consequence of the action taken by the plaintiff and the effect on his assailant was that, first of all, the plaintiff lost balance and his assailant fell against him, with the result that the stool on which the plaintiff was sitting toppled over and the plaintiff fell heavily on the stool which was then lying on its side and the assailant fell on top of the plaintiff.

26 The worst of the fall was felt in the plaintiff’s right hip. He felt a sharp pain in what he described, no doubt from his pharmaceutical expertise and quite correctly, as his ilium. The pain extended from the point of contact where it was particularly acute, down his right leg. The injury to his hip was such that he was not able to get up but he did see, from lying across the stool on the floor, his assailant and the two fellow intruders run back out through the swinging doors into the foyer area through which they had entered.

27 There is no dispute about the immediate consequences as far as the plaintiff’s injury is concerned. The plaintiff returned home and he described how it was extremely difficult for him to move although he did manage, with the help of his wife who came to the club in response to his telephone call, to make his way to the car which was driven by his wife. When they reached home, his wife fetched what he described as a “tool trolley”, which he was able to use as a kind of stretcher and was wheeled into the house on the trolley by his wife.

28 He managed to make his way onto his bed and took some Panadeine Forte, which again through his work as a pharmacist he had on hand, in order to relieve the pain. He was fully dressed and in too much pain and too exhausted at that stage to do any more than remain on his bed. The next day was taken by ambulance to Concord Hospital. He was x-rayed and, as he had correctly diagnosed, the x-ray revealed a comminuted fracture of the right ilium.

29 When he was discharged from Concord Hospital, he was provided with a walking frame, which he continued to use for some three weeks after his return home, and crutches which he needed to use for another six weeks after that. He was off work for a total of 13 weeks during his convalescence and returned to work on 6 October 2002.

30 As far as the injury is concerned and the relevance of that to any damages which the plaintiff might be entitled to recover, I will take that up in more detail in due course.

31 First of all, I will review the history of these proceedings which arose out of that incident and, as I indicated earlier, in which the plaintiff seeks to recover damages from the defendant. The proceedings were commenced by way of a Statement of Claim on 11 July 2005, in which the plaintiff alleged both negligence and breach of contract on the part of the defendant, giving rise to his injury. The particulars of the breach of duty and negligence were essentially in the same terms as the alleged breach of implied terms of the contract and, in that sense, the two causes of action were interchangeable and I have treated them as such for the purpose of this judgment. In the defence subsequently filed by the defendant, liability was denied in both contract and tort and contributory negligence was pleaded.

32 When the matter came before me for hearing there were three days taken up between 19 and 21 September of last year, at which point the proceedings were interrupted, in part to allow the plaintiff to amend the particulars of breach and to obtain some further expert opinion. One particular reason for leave being granted was that it had become apparent, in the course of the evidence, that a significant part of the plaintiff’s case based on the existing expert evidence relied on allegations concerning the state of the external lighting of the premises, both in the entrance area and the steps leading to the entrance and in the car park. It became clear that the plaintiff’s case in that regard would not succeed, particularly in view of expert evidence in a report prepared at the request of the defendant.

33 In that respect, costs orders were made in the defendant’s favour for time which had been thrown away on that aspect of the case and the matter was stood over and was resumed on 26 February of this year. The case occupied five more days of evidence and ultimately submissions, at the conclusion of which the matter was stood over for judgment.

34 One other relevant aspect of the evidence which, for fairly obvious reasons, becomes a matter of some significance on the question of breach of duty, is evidence of other incidents involving theft or attempted theft and/or break in of the defendant’s premises. In May 2002 there was an attempted break in after the club had been closed to patrons but while the barman on duty, a man by the name of Nathan Barko, was still inside the bar area closing down the bar. The evidence, and in this particular respect I note its hearsay character and therefore I do not attach any weight to it for that reason, but it does assist to put this incident into some sort of context. According to an account given by Mr Barko to others, including Mr Wiese the manager, Mr Barko saw on the CCTV monitor, which I will have more to say about in due course, three men standing at what were then the locked glass doors at the entrance to the premises, attempting to break in.

35 What can be said without any reliance on hearsay evidence is that Mr Wiese, who was not there at the time, was able to give evidence that when he came to the premises following the incident on the next day, there was a crack in the glass of one of the entrance doors consistent with an attempt to break the door down. However, there had been no break in and the reasonable inference from that evidence is that the attempt, was observed by Mr Barko, was unsuccessful.

36 Following that incident there were two other incidents in June 2002, that is still preceding the incident in which the plaintiff was injured, both of which occurred not only after closing hours but well into the night after all the staff had left the premises. On these occasions a similar modus operandi had been used to break into the premises involving the intruder cutting a hole in the glass of the entrance door, at a point where it was then possible for the intruder to put the intruder’s hand through the hole and to take hold of the bar which served to unlock the door. In this way the intruder was able to let him or herself in and on the first occasion proceeded, as Mr Wiese put it, “ to clean out five poker machines and make away with the proceeds”.

37 On the second occasion the entry was achieved by the same method but nothing was actually taken.

38 There was another incident, on this occasion well after the incident in which the plaintiff was injured, indeed four years after in July 2006, in which entry was gained by actually kicking in the locked glass doors of the entrance to the premises. Mr Wiese, in describing the aftermath explained how the doors had been forcefully kicked to the point where the bolts which held the doors locked had, again to use his words, “jumped out”, thereby allowing the intruders to break into the premises and rob the premises. Mr Wiese gave further evidence that, on this occasion, no-one suffered any personal injury.

39 The plaintiff’s case against the defendant was ultimately, and relatively belatedly, redefined in amended particulars which were filed pursuant to the leave which had been granted when the proceedings had been interrupted. It is necessary, in order to give a clear indication of the nature of the plaintiff’s case as it was ultimately defined, to record those amended particulars verbatim which applied, for reasons I explained earlier, to both the count in negligence and the count for breach of contract:

(a) Failure to lock front entrance doors after dark.
(b) Failure to have a servant or agent in the foyer area to monitor access to the clubhouse via the front entrance and to check identity and regulate access of persons into the clubhouse.

(c) Failure to have an effective system of using the CCT/VCR recording system so that the bar service staff or other servants or agents of the defendant could monitor at all times access to the clubhouse via its front entrance and to check the identity and regulate access of persons into the clubhouse and, more particularly:

(i) failure to be able to view the monitor adequately or at all while serving at the bar without interrupting bar service;

(ii) having to monitor at various times linked only to a live feed from the bar service area to a recording camera angled inside the bar rather than to a separate recording camera in the foyer that was angled to view access to the clubhouse via the main entrance;

(iii) failure to have the angle of the foyer recording camera located so that it covered the entire width of approach via the front stairs (leaving a portion of the stairs and the main entrance not covered by any live feed);

(iv) having an effective CCT/VCR recording system in place rather than one which had broken down since Monday 8 July 2002 and which remained unrepaired as at 10 July 2002.

(d) Failure to have a method of locking the main entrance doors from the bar service area.

(e) Failure to upgrade security measures (as outlined in the foregoing particulars) following robbery and break in incidents at the same club in May and June 2002, together with other information received by the defendant’s manager, Mr Ian Wiese, by May and June 2002, to the effect that criminals were targeting registered clubs in the vicinity of the Drummoyne local area, and also taking account of the typical level of patronage and cash in the clubhouse on Wednesday evenings in July 2002 (in the winter months of the football season).

A further particular was added by way of a later amendment:

(f) Failure to have a properly qualified person install, design and implement the CCT/VCR that was used at the defendant club as at 10 July 2002.

40 Given the nature of the allegations against the defendant, both parties relied on expert evidence and I will at this stage say something generally about the evidence of both the plaintiff’s and defendant’s experts.

41 In doing so, it will be possible to refer back to some of the allegations in the particulars which I have just recorded for the purpose of putting them to one side, both because on the expert and other evidence, they do not in the end prove to be of any assistance to the plaintiff.

42 Particular (e), that is the reference to the failure to upgrade security measures following the incidents in May and June of 2002, does not stand apart from the other measures stated in the particulars but is really by way of general background to the alleged failure on the part of the defendant to exercise reasonable care. It is an entirely different allegation from those contained in the other particulars. Even if that particular is made out, it does not establish any breach of duty of care per se without proof of a breach of one or other of the matters particularised.

43 The plaintiff’s expert was Mr Richard Jennings. There were three of his reports in evidence respectively marked Exhibits E, F and G and dated 16 December 2004, 18 November 2006 and 13 February 2007.

44 Mr Jennings was an appropriately qualified person to give expert evidence on the matters particularised and in that respect I refer briefly to the history given in Mr Jennings’ first report outlining his qualifications. They included 12 years as a detective in Scotland Yard followed by a period of 10 years in the investigation and security industry when he came to Australia.

45 Taking each of the three reports in order, the first report of 16 December was the report in which considerable emphasis was given to alleged failures on the part of the defendant to adequately light the entrance area and the car park. That aspect of the case, as I explained earlier, fell away after the first three days of hearing and much of that first report therefore is of no particular relevance to the ultimate resolution of the case.

46 The second report of 18 November 2006 gave particular emphasis to the CCTV system which plays a significant role in the amended particulars. The system which was in place consisted of two cameras, one located in the foyer area and concentrating and directed towards the entrance doors and the area immediately on either side of those doors. The other camera was located in the bar area and directed to part of the public section of the bar.

47 The monitor, which displayed the film from the two cameras, was situated above head height just to the left of the taps on the bar facing the service area of the bar, so that it could be seen by the person working as a barman as Mr Ritchie had been on the night of the plaintiff’s injury. The difficulty with the location of the screen, and this was not in the end a matter of any real difference of opinion between any of the witnesses, was that it could only be seen by a person working at the bar if the person stood back from the bar and looked up at the screen. In other words if required interruption of the ordinary work that the bar person was engaged in. It was not, for that reason alone irrespective of where the cameras were directed, an effective monitor in the strict sense of that term because it did not provide an easy means from behind the bar area to keep a watch on what was happening in another part of the club.

48 A more important point is that, even if the TV screen had been located in an area more easily seen by a bar person working in the ordinary course of their duties, it could still not have served as a useful monitor. The nature of the work of the bar person, which not only included the constant serving of patrons across the bar but also moving about in the bar and lounge area, tidying up, collecting empty glasses and other chores of that kind, would make it impossible for any constant vigilance to be maintained, however conveniently the monitor was located.

49 The conclusion which almost inevitably follows from that evidence is that the only useful monitoring purpose which the CCTV system could serve was to provide an opportunity for the person working behind the bar to look at what was happening in another part of the club, upon that person’s attention being drawn to some atypical activity in that area. For example, if there was a large amount of noise in the foyer, sufficient to attract the attention of the bar person, they could then look at the monitor in order to see what was happening in the foyer. Secondly, it had the quite different purpose, possibly the main reason for its initial installation. That was to provide a means of recording, by way of video, activities which were not under direct observation for the purpose of subsequent investigation of incidents in the club which had been recorded on the camera and could assist in identifying unauthorised entrants.

50 It follows from those observations that the case based on either the location of the monitor, its efficiency or any other related matter provides no basis for any claim against the defendant by the plaintiff. As a consequence of that, very much of the second report of Mr Jennings falls away for reasons similar to those which affected his first report. It also renders irrelevant to the outcome of this case all of those particulars contained under the heading (c) and, by association, (d) as well. Particular (d) referred to the failure to have a method of locking the main entrance doors from the bar service area. If the CCTV system could not provide a means of constant monitoring, there would be insufficient time for a bar person to lock doors against intruders.

51 At this point I will also comment on particular (f), that is the alleged failure to have a properly qualified person install, design and implement the CCTV system. The uncontroverted evidence was that the system had been installed by an employee of the defendant, a Mr Simpson, with the assistance of Mr Wiese. That evidence did establish that the system was not installed by a properly qualified person. But it is a matter of peripheral importance, given my findings with regard to the relevance of the system itself. It also means that much of the evidence of Mr Simpson ceases to have any particular importance in this case.

52 I would however, while referring to his evidence, make two comments. First, there were reasons for doubting some of his assertions in view of demonstrated inconsistencies in his evidence and certainly some flaws in his recollection. On the other hand, his evidence does assist in acquiring some understanding of how the system worked in view of the fact that he was responsible for its installation. His evidence was corroborated by other witnesses, that although the system now has a multiple screen which allows a person observing the monitor to see what is being taken by the cameras in more than one location, and more particularly in the two relevant locations at the same time, this was not the case in July 2002. At that time it was necessary, in order to activate the monitor with regard to any particular camera, to switch it to that source. If, for example, a person on duty wanted to observe what was happening in the foyer area, it was necessary to switch the monitor over to that camera. But again, those matters cease to be of any particular significance as far as the outcome of this case is concerned for reasons I have already explained.

53 Because much of the content of the first two reports of Mr Jennings dealt with matters which ultimately proved to be of no significance to the outcome of the case, there was not a great deal by way of written opinion on Mr Jennings’ part that furthered the plaintiff’s case except in a very general way. His third report, that of 13 February 2007, was primarily by way of a reply to the earlier report of the defendant’s expert Mr David Crossley, of NSG Expert Opinion Services, dated 9 June 2006 and a supplementary report of 1 February 2007, both of which were in evidence as Exhibit 29.

54 Before I turn to the evidence of Mr Crossley I will make some further general comment about the evidence of Mr Jennings. Apart from the fact that a very substantial proportion of his written opinion was overtaken by evidence which rendered it irrelevant to the ultimate outcome, there were also more general problems with Mr Jennings’ evidence which are a matter for some concern and which certainly deny the plaintiff any real assistance from Mr Jennings as an expert.

55 First of all it has to be said that his methodology, notwithstanding his quite extensive experience, could only be described as slipshod. He failed to pursue matters of detail in order to substantiate conclusions from observations that he made of the premises and, in some instances, he proved to be inaccurate in the observations which he recorded. I will offer one illustration of that without going into too much detail.

56 One of the bases on which he alleged that inadequate precautions had been taken by the defendant in securing the premises was his conclusion that there was no advertisement in any appropriately conspicuous place of the fact, for example, that the safe and the money in the smaller safe was secured by way of a time lock, thereby deterring any potential robber, who would need to be in and out of the premises quickly, from attempting any robbery. Contrary to that assertion, there was in evidence a sign in the form of a transfer adhering to the doors of the premises, both the main entrance and the other entrance for disabled patrons on the north eastern corner of the bar area. The sign was octagonal in shape with a red background and white lettering which was, I have to say from my own observation, readily seen by anyone entering either of those doors. It read in large capital letters “WARNING” and then followed the following words:

“All cash on these premises is protected by time delay locks”.

57 I have to say that was something of an exaggeration because all of the money that was kept in the drawers and the till was not protected by time delay locks, nor was the money in the larger safe, as was graphically illustrated by the “success” of the robbery on the evening of the plaintiff’s injury. But nonetheless, in terms of a warning it was, by virtue of its exaggeration, if anything a greater deterrent than a more accurate warning would have been. However, the significance of the notice is not so much its content and how accurately it represented the situation, but the fact that Mr Jennings simply got it wrong.

58 Secondly the presentation of the reports, and this became even more acute in his oral evidence, displayed a tendency to provide opinions which were very much ad hoc and not grounded in any kind of relevant direct experience or other sources of expert opinion. Again, I offer just one illustration.

59 When, in the course of his oral evidence, Mr Jennings was questioned about the possible deterrent effect of the locking of the entrance doors, Mr Jennings’ evidence was that there was no point in locking the main entrance doors which had been the subject of forced entry on other occasions. The appropriate doors to secure, according to Mr Jennings, were the internal doors that led from the foyer area to the dining area on one side and the bar area on the other.

60 The ad hoc nature of this opinion was graphically exposed by the evidence of not only Mr Crossley, the defendant’s expert, but by Mr Wiese the defendant’s manager, who I should say I found to be a generally frank and reliable witness who, quite frequently, gave answers that were not in any way designed to enhance the defendant’s case. With regard to Mr Jennings’ suggestion, what Mr Wiese had to say was very convincing. He was dismissive of the suggestion that the internal doors should have been the doors secured by locks. He made the point that that would have involved a very substantial expenditure on the part of the club because the whole system would have had to be replaced. The swinging doors which were in place would be incapable of any effective locking and a totally different and very expensive construction similar to that which was already in place at the main entrance, would have had to have been used.

61 The additional point, which was made in particular by Mr Crossley, was that locating the locked doors in the situation suggested by Mr Jennings would have been entirely ineffective as a means of preventing forced entry. By that time, as Mr Crossley quite sensibly observed, the intruders would be inside the premises. They would certainly, in July 2002, have had direct access to the manager’s office, if nowhere else. Also they would have been beyond the direct view of the CCTV camera because they would, having gained entry through the main doors, and moved to the swinging doors, have not been any longer in view. In those circumstances and for other reasons, Mr Crossley was of the view that such a measure would have been entirely misdirected and ineffective.

62 Another, and in some ways perhaps more serious, problem with Mr Jennings’ evidence was that there were a number of instances in which he appeared to assume the role of advocate rather than an expert engaged to assist the Court. This was most graphically illustrated by two communications which were in evidence between Mr Jennings and the solicitors for the plaintiff and, in referring to these communications, can I make it very clear that this does not in any way reflect on the solicitors. These were entirely matters of Mr Jennings’ own initiative and was not in response to anything put to him or suggested to him by the solicitors.

63 I do not propose to go into these communications in detail but I will say this. In one of them a fax marked to the solicitor directly responsible for this matter, Ms Assaker, and marked “very urgent” in mid-September 2006 contains the following statement:

“Please find attached note about the new reports forwarded to me”.

64 This is a reference to the reports inter alia of Mr Crossley and these are the significant words:

“They will be useful for counsel in cross-examination”.

65 I doubt whether it is necessary for me to make any further comment about that statement. It is certainly not a proper statement from an expert to those acting for a party in court proceedings and certainly takes on a role which is quite unrelated to the proper role of the expert.

66 The other communication is a much more lengthy one in the form of a letter faxed on or about the same date and addressed to the solicitor, in which a detailed critique of the defendant’s experts, and that included not only Mr Crossley but also Dr Gordon Watson. Dr Watson was the lighting expert who had been initially engaged by the defendant but whose report ultimately became of no relevance in the proceedings following the amended particulars. Mr Jennings questioned amongst other things, in a very personal way, the qualifications of both experts.

67 This tendency was also evident in his oral evidence, and was consistent with the frequently ad hoc nature of his response to questions. His answers, rather than grounded in appropriate expertise and based on relevant expert sources, gave the appearance of someone who was looking for an answer that would advance the plaintiff’s case without a great deal of thought.

68 The consequence of all of those features of Mr Jennings’ evidence is, as I foreshadowed, that, even on those matters which survived as material to the outcome of this case, his opinion was of very limited, if any, assistance to the plaintiff.

69 However, I formed a very different conclusion of Mr Crossley as an expert. He did not show the same flaws in his approach to his role as an expert as those I have identified in the case of Mr Jennings. His presentation, both in his written reports and in the witness box, was of a much more professional nature than Mr Jennings. He argued his conclusions in an appropriate way and relied on expert sources, as well as his own experience as an expert. He paid much greater attention to matters of detail.

70 However, having said that, and having relieved Mr Crossley of any general criticism of his approach to his expert responsibilities, his report manifested two underlying features which in my view compromised the conclusions which he drew that were directly relevant to liability. First of all there was what can only be described as his preoccupation with the proposition that nothing can be done to stop a sufficiently determined robber from committing a robbery. I am not suggesting that there is not some foundation for that proposition, in fact I will come back to that in due course. But it was so dominant in his report that it compromised his conclusions on matters more directly relevant to the question that had to be resolved in this case, and that is whether any measures might have been sufficient to reduce the risk of personal injury to someone such as the plaintiff as distinct from the commission of a robbery.

71 Secondly was his equally persistent reference to the conclusion that, in his view, the plaintiff essentially brought his injury on himself. Had the plaintiff simply co-operated with his assailant and done nothing to resist, and certainly not struck him as the plaintiff did, then more likely than not nothing would have been done to injure the plaintiff and the worst that would have happened, presumably, would have been that his wallet been stolen. This emanated from an underlying attachment on Mr Crossley’s part to a proposition which, of itself, is not necessarily unfounded but which he allowed to comprehensively influence the conclusions in his report, namely, that one of the underlying characteristics of armed robbers is the desire to control. A corollary of that desire to control is that a person who is confronted by an armed robber is not likely to bring any harm to themselves if they allow the robber to believe that the robber is in control of the situation by co-operating and not resisting.

72 As I said, I do not suggest, and I will come back to this point in a moment, that that is necessarily an unfounded proposition. In fact it was corroborated by other evidence including evidence, perhaps somewhat surprisingly, from Mr Jennings. But the problem is that the report was replete with repeated references to this particular factor along with the repeated assertion that a sufficiently determined robber cannot be stopped. Putting those two propositions together, it is not easy to find in the report a clearly reasoned conclusion which effectively answers the plaintiff’s claim in every respect. However, it has to be said, and I say this in fairness to Mr Crossley, that that preoccupations which I detected in the written report were put aside by Mr Crossley in the witness box. When Mr Crossley was confronted with more specific questions about particular measures that may or may not have had some effect in either deterring or delaying the intervention and ultimate injury to the plaintiff, he presented a much more balanced and, perhaps paradoxically, more helpful position as far as the plaintiff was concerned. He was prepared, consistent with his role as an expert, to concede certain matters, admittedly with some qualifications, that were of some assistance to the plaintiff.

73 Given his overall presentation as an expert witness, the end result was that Mr Crossley’s evidence was more help to the plaintiff than Mr Jennings and I do not say that with any criticism of Mr Crossley, nor do I suggest that Mr Crossley was not an appropriate expert for the defendant to have briefed. He ultimately fulfilled his role as an expert in the proper way.

74 Before I come back to those matters which go to the surviving aspects of the particulars on which the plaintiff’s case was ultimately argued, I acknowledge that, notwithstanding the general comments I made about the expert reports and, in particular, the critical remarks I have had to say about Mr Jennings, there were a number of general observations, relevant to the background to this case and which had some bearing on liability, which were common ground between the two experts.

75 First of all was the historical fact that in the middle of 2002 there had been, in the area in which the defendant club was situated, a noticeable rise in armed robberies and, accompanying that, clubs such as the defendant club had become the targets of armed robbers because, amongst other things, of their perceived vulnerability. There was therefore a basis for at least some heightened awareness at the time of the likelihood that clubs such as the defendant club would fall victim to armed robbery.

76 Secondly, as I have already noted, the experts shared the view of the importance in the mind of a typical armed robber of the need to control. This is a matter referred to in both of the experts’ reports and on which there was no real difference between them.

77 Thirdly, despite the conspicuous emphasis given to this by Mr Crossley in his report and, as I have suggested, perhaps a little too much emphasis, Mr Jennings also agreed with the view that there was a limit to manageable and affordable security measures to deal with prospective armed robbery and that a group of sufficiently determined and aggressive armed robbers would normally be able to bridge any readily available security.

78 Against that background I now turn to the question of whether, on the evidence which survived and on the case ultimately argued on behalf of the plaintiff, there is a case against the defendant. I acknowledge that the relevant law in this area was very extensively canvassed by both counsel, in the case of Mr Gracie for the defendant in a written summary and in the case of both counsel in the course of their oral submissions. Because there is some limitation on the time available for delivering this judgment, I am not doing justice to the very extensive treatment of the relevant case law by both counsel but I will attempt to deal with the most important aspects of the case law that bear directly on the outcome of this particular case.

79 The initial question is whether, in circumstances of this kind, the law supports the existence of any duty of care whatsoever on the part of a defendant such as the defendant club. It was the case put on behalf of the defendant that, as a consequence in particular of the High Court decision in Modbury Triangle Shopping Centre Pty Limited v Anzil (2000) 205 CLR 254, there is no duty of care on a person in occupation of premises to take measures to protect another person, even if that person is lawfully on the defendant’s premises, against injury caused by the criminal conduct of others over whom the occupier has no immediate control or no other reason in law for having any control arising out of some special relationship between the parties. The general proposition cautioning against imposing a duty in such circumstances has been reaffirmed in a number of later decisions such as the High Court decision in Cole v South Tweed Heads Rugby Leagues Club [2004] HCA 29 and other cases at the state level such as Ashrafi Persian Trading Company v Ashrafinia [2001] NSWCA 243 and The State of New South Wales v Godfrey [2004] NSWCA 113. However, as was submitted by Mr Bates, counsel for the plaintiff, even the general statement of principle in Modbury itself admits of some qualification, although it is clearly emphasised in that judgment and in the cases which have followed that exceptions can be made only in the most extreme case. However, there are now authorities which have canvassed that possibility and some of these were referred to in the course of submissions. I do not propose to address the facts of those cases or what was said in them in detail. However, I have given careful attention to the judgments and find, in them support for the proposition that in appropriate circumstances exceptions can be found to the general principle against liability. I will place on record the cases that were referred to in this context. First of all there was the decision in Proprietors of Strata Plan 17226 v Drakulic (2000) 55 NSWLR 659, decision of the New South Wales Court of Appeal. Other more recent decisions of that Court were: English v Rogers [2005] NSWCA 327; Wagstaff v Haslam [2007] NSWCA 28 and Spedding v Nobles [2007] NSWCA 29.

80 In accepting the general relevance of those cases, I recognise that it is possible to distinguish the facts of this case from those in which the Courts have been prepared to make exceptions. I acknowledge that those cases do not assist the plaintiff in this case in that respect. For example, this was not a case where the plaintiff was an employee of the defendant and therefore was under a more onerous standard of care than might otherwise have arisen. Secondly, this is not a case of licensed premises, in the sense in which that term is generally understood, where the responsibilities of the licensee of such premises may, for various reasons, be seen as more onerous than might be appropriate in the case of an operator of a club such as the defendant in this case. I am referring to licensed premises in the sense of premises such as hotels and other similar commercial operations.

81 Putting those differences aside, for an exception to the Modbury rule to be made, there must be a high degree of risk and that the imposition of a duty must not be unduly onerous on the defendant in the face of such a risk.

82 I am satisfied, for reasons I will go on to elaborate, that those criteria are met in this case. That brings me to a point where there is a very real overlap between what is strictly a question of duty of care on the one hand, and the question of whether there has been a breach of such duty on the facts of any particular case. It could be said that the criteria which have been put forward as entitling a plaintiff to an exception to the Modbury rule are criteria that go to whether a breach of duty has occurred in the particular case. But they are also criteria which form the basis of an exception to the Modbury rule against any duty of care. I find it very difficult to treat those matters as relevant to one to the exclusion of the other.

83 There is one other matter of general principle which needs to be addressed at this point before I come to those criteria in more detail on the evidence in this case, and that is a matter which arises from the expert opinions of both Mr Jennings and Mr Crossley. In order to establish a breach of duty it is not necessary for a plaintiff to show that the measures suggested by the plaintiff, that the defendant failed to undertake, would have entirely eliminated the risk. The evidence of both experts is that that is impossible in circumstances of this kind. However, on the authorities it is not necessary. I cite one authority in that regard, that of Raimondo v The State of South Australia (1979) 23 ALR 573, in which it was there said that it was sufficient to establish liability in such a case if measures reasonably available would have “significantly reduced the risk”. It is that test that I adopt in addressing the evidence in this case.

84 I also reiterate what I noted earlier in the context of the expert reports. The question I have to determine is not whether the measures reasonably available would have prevented a robbery, but whether they would have significantly reduced the risk of personal injury to the plaintiff.

85 At this stage, I will restate the particulars that have survived the process so far:

(a) Failure to lock the front entrance doors after dark.

(b) Failure to have a servant or agent in the foyer area to monitor access to the clubhouse via the front entrance and to check identity and regulate access of persons into the clubhouse.

86 It was those two alternatives that were pressed in counsel’s final submissions and it is those therefore that I will address in detail.

87 With regard to locking the doors, it is not necessary to hold the plaintiff to the words “after dark”. What is more important and the basis on which most of the evidence proceeded, is that there was a point of time on a weekday evening, and on a Wednesday evening when patronage was somewhat higher than on other nights of the week, when notwithstanding the popularity of the various activities in the club, most patrons would have arrived and be inside the club premises. Most were there to take part in the various activities which were held in the early hours of the evening and to use the restaurant. After that time, the number of patrons arriving reduced dramatically.

88 The time, on Mr Wiese’s evidence at which that point could be confidently struck was 8pm, that is, approximately an hour before the break in and injury to the plaintiff. After that time in what I have already commended was his very frank presentation in the witness box, Mr Wiese acknowledged that it would not be particularly difficult for someone on duty, whether it was the barperson or himself with relatively easy access of the front doors once they were locked to let in patrons who arrived from time to time. That would not seriously disrupt the other commitments of staff members after 8 o’clock.

89 As far as the locking of the doors themselves there was no cost directly involved in that process at all. The doors were designed to lock so as to exclude entry from the outside but to permit exit as I described earlier. In other words, even if the club still had, at 8 o’clock, a large number of patrons using the club facilities, all of those patrons could leave without having to call upon any member of staff to assist them because the doors could be opened easily from the inside and then would automatically close and lock after the patron had left.

90 There was a point made in this context by counsel for the defendant that that very process would provide an opportunity for a sufficiently vigilant intruder to gain entry. The intruder or intruders, would only have to wait for someone to leave and open the door and then be able to force their way in. Alternatively, such persons could wait for the occasional late arriver and, once the door was opened for them, they could make their way through the open door before it could be closed. However, in both instances, by the very nature of the means of opening the door, other persons, either patron or staff or both, would be on hand. This would itself be an obstacle to easy entry, even though it does not eliminate the possibility of entry. If the matter is approached from the basis of significant reduction of the risk, the possibility of entry may arise but as a matter of commonsense, entry would be likely to be impeded and delayed. While this does not exclude entry the locked doors would act as a significant reduction of risk.

91 However, there is more to this aspect of the plaintiff’s case than just the possibility of locking the doors as a relatively inexpensive and relatively effective means of at least delaying forced entry. There are further questions, which were canvassed in the evidence and addressed in submissions, relevant to whether the risk of what subsequently happened could be significantly reduced with the exercise of reasonable care. As the experts agreed, nothing would stop a sufficiently determined robber from getting in. Further the questions then arise with regard to what happens after that.

92 The plaintiff’s case in response to those questions was essentially this. What was important about the locked door was first of all its role as a delaying factor. It would stop the speedy and immediate entry of the sort that occurred on the night the plaintiff was injured; it would also prevent undetected entry because, the argument ran, the role of the CCTV monitor would come into play if entry had to be forced through a locked door, even if entry had been gained by taking advantage of the door being opened by some other person. One way or the other there would be some delay and some activity which would alert others on the premises and, in particular, other staff of the defendant to turn their attention to what was then happening in the foyer.

93 What would then be possible is, at the very least, and this is where the distinction between the plaintiff’s personal injury and a robbery of the premises becomes particularly important, that the person on duty, whether the manager, the barperson or some other person with access to the monitor or direct access to the foyer area and in a position to observe the entry of the intruders, would be able to issue a warning to patrons. This would be a relatively simple statement to the effect that the premises were the subject of a forced entry and that patrons should not, under any circumstances, resist an approach from any of the intruders.

94 The submission was that such an instruction would have been an effective way of averting the plaintiff’s injury, had such a system been in place. It would have been not only effective but an almost entirely costless measure. Such a measure would not therefore impose on the defendant any unreasonable burden. That is a very relevant factor in the case of a defendant such as the defendant club in this case. I do not propose to take up the very detailed evidence which was tendered in this particular respect because, in my view, it is incontrovertible that this was a club of limited financial means. Its purposes were generally charitable and not for profit. It would not be reasonable to ask such a club to commit itself to substantial expenditure in order to enhance its security for the purpose of protecting someone such as the plaintiff. I have no difficulty in accepting that general proposition and, therefore, accept that the defendant could only be asked to adopt measures that were relatively costless.

95 As to the series of actions which would have been needed to reduce the risk of the injury, further submissions were made by defendant’s counsel respect to the effect that the evidence simply did not support a conclusion of the kind that I have foreshadowed. It was submitted, for example, that there was no evidence of exactly what should have been said by a staff member to patrons faced with that situation; nor whether the instructions could have been effectively conveyed to patrons in the relevant areas sufficiently quickly; nor whether patrons such as the plaintiff would necessarily have taken any notice of them; particularly this plaintiff who, along with Mr McIntyre, demonstrated a determination not to surrender. It was submitted that this was all evidence which could have been elicited, most appropriately, from an expert to provide a proper foundation for such a case against the defendant. There was no such evidence and I acknowledge that. I also acknowledge that that is a weakness in the plaintiff’s case and further reflection on the thoroughness of the approach of the plaintiff’s expert, Mr Jennings, who did not turn his attention to any of these matters in formulating what he considered to be the appropriate measures to secure the plaintiff’s safety.

96 However, I am not satisfied, having acknowledged that, that these are matters which cannot be resolved on the basis of common experience without the assistance of expert evidence. It is, in my view, more likely than not that if such a procedure as I have described had been followed it would have, in the words of the decision in Raimondo, significantly reduced the risk of injury to the plaintiff. It would be more likely than not that what happened to the plaintiff would have been averted.

97 I find some support for that conclusion in the evidence of both Mr Wiese and Mr Ritchie. Mr Wiese said that he instructed staff, faced with a situation of this kind, to co-operate with intruders and as he put it “don’t be a hero”. In other words, the management of the defendant club was alert to the appropriate response to forced entry of this kind. Mr Ritchie, although he denied any memory of any such instructions being given to him, nonetheless gave evidence that his reason for not resisting was the fact that at first, when he believed that a gun was being pointed at him, he thought discretion to be the better part of valour and that it was appropriate for him to simply do whatever the assailant instructed him to do, including handing over money and getting down on the floor when he was told to do so.

98 So that that evidence does suggest that in the mind of those employed by the defendant, there was nothing, unusual in the suggestion that the proper response to such a break in was to co-operate. If, therefore, a system had been in place which enabled some warning to be given of a forced entry, then it would have been a relatively easy matter for such instructions to have been passed on to patrons.

99 I have already acknowledged that it might be argued that the resistance of both the plaintiff and Mr McIntyre would indicate that they might have been difficult to persuade from taking the measures that they individually took. However, the contrary argument is that the very fact that both of them suffered quite serious physical injury because of their failure to co-operate, only underlines the importance of particular instructions being issued in order to avert, as far as possible, personal injury to any potential victim.

100 The decision in Makita v Sprowles (2001) 52 NSWLR 705, which does not require detailed exposition, leaves room in appropriate cases for the Court to decide such matters without the assistance of expert opinion where such matters are not exclusively in the knowledge of an expert. This in my view is such a case. I only add, as I foreshadowed earlier, that to a limited extent there is some support in Mr Crossley’s evidence in the witness box for the conclusions I have drawn. Mr Crossley conceded that while locked doors would not keep a determined robber out, they would certainly impede entry and cause some delay. Secondly, his emphasis on the need to co-operate underlines the importance of such an instructions being given and for time to be available for such an instruction to be given, which would be a consequence of delayed entry caused by the locked doors.

101 I therefore find that there was a breach of duty of care on the part of the defendant club in failing to secure the entrance doors between 8pm and 9pm on the night on which the plaintiff was injured. Such a precaution, for reasons I have already explained, would have significantly reduced the risk of injury to the plaintiff.

102 It is not, in those circumstances, necessary to take the matter any further as far as liability is concerned but I will say this. The finding of a breach of duty is also reinforced by the history which I have recorded earlier in the judgment. This was not an incident which occurred in isolation. It is not a case driven entirely with the benefit of hindsight. It is a case in which forced entry occurred within two months of a sequence of other events which, combined with the general knowledge which should have been available to the club of the rise in robberies of premises such as those occupied by the defendant, should have galvanised the defendant’s mind to consider additional security measures, particularly measures which would have cost nothing.

103 That leaves me to make at least some very brief observations about the alternative basis for the plaintiff’s case as ultimately argued, namely the failure to have someone on duty in the foyer area in order to monitor entry and exclude anyone who was not a patron or other person with a lawful reason for entering the premises.

104 First of all, it should be said that the effectiveness of this measure has to be doubted, because of the evidence given by both experts about the attitude of those engaged in robbery in company. It is not, in my view, clearly established on the evidence, and in fact there is considerable doubt raised on the evidence, that a person on duty would not have been as much a provocation as a deterrent to a group of prospective robbers. But even if for it is assumed that such a person’s presence would have been an effective means of delaying entry and therefore providing a similar opportunity as a locked door would provide, to alert those inside the premises to the impending robbery, it certainly is not a measure which could have been implemented without cost. Given the fact that it is not necessary to decide this in order to determine the outcome of the case, I merely note that the case against the defendant in this regard is exposed to the additional argument which did not apply to the locking of the doors, that it might have been an unreasonable imposition in terms of cost. The plaintiff’s submission was that, on the evidence, this would not have involved more than an amount slightly in excess of $50 a night, which was well within the means of the defendant club, to employ a person for three hours for this purpose. Nonetheless, it does complicate the plaintiff’s task in establishing a case on this basis and, for those reasons I could not have as confidently reached a conclusion had that been the only ground on which the plaintiff’s case could succeed.

105 By way of preface to what I propose to say on the subject of damages, there was a substantial amount of evidence, but, on my assessment the injury sustained by the plaintiff was a relatively discrete one and this is not a complex case from a medical point of view. It is not necessary, in those circumstances, to review the medical evidence in detail. Secondly, for reasons which I will explain in due course, it is not necessary to undertake some of the very detailed calculation of damages which was undertaken on behalf of the plaintiff. While I commend those acting on the plaintiff’s behalf for the assistance which that detailed calculation provided as it turns out, some of that is unnecessary.

106 I begin, very briefly, with the plaintiff’s personal history, both before and after the injury. The plaintiff was born on 1 July 1938, which makes him now 68 years of age. As I mentioned earlier, he qualified as a pharmacist, but, by the time of his injury, had ceased full time work and was working at a pharmacy known as Gardiner’s Pharmacy in Church Street, North Parramatta. He worked there on a part time basis and was paid by the hour, working something in excess of 20 hours a week. He saw himself as, to use his own term as “semi retired”.

107 Two other aspects of the plaintiff’s history prior to the accident are of some relevance. First of all, while working as a part-time pharmacist in 1989 in Chipping Norton, he was the victim of an armed hold up in which a sawn off shotgun was used. A year or two before the incident in this case, when he was already working at Gardiner’s Pharmacy, when the person holding up the pharmacy had attacked a female employee and Mr Brown had intervened in order to protect her. He suffered an injury to his left arm in doing so, although it did not have any permanent effect. However, the incident did have some psychological effect. It made him unusually vigilant about his safety at work to the point where he armed himself with a machete which he kept hidden under the counter of the pharmacy while he was on duty.

108 This history goes some way to explaining his response to the attempt to steal his wallet on the night he was injured in the matter giving rise to these proceedings. It also goes some way to explaining the psychological consequences of that incident.

109 The other matter of relevance in his medical history was that in 1996 he was diagnosed with hypertension and atrial fibrillation which was treated by both medication and an exercise program which, on his evidence, had been extremely effective in keeping the symptoms of that condition at bay from that time up to the time of his current injury.

110 I have already recorded that on the morning following his injury on 10 July 2002 he was taken by ambulance to the emergency department of Concord Repatriation General Hospital where an x-ray diagnosed the comminuted fracture of his ilium. He was discharged but he continued to receive treatment as an outpatient at that hospital for some period of time after discharge. As I also noted earlier, he spent 13 weeks in convalescence and it was only at the end of that 13 week period that he finally returned to work part time and at the same level as he had worked in the pharmacy before he was injured.

111 He did subsequently cut back on his hours and his evidence was that this was partly a consequence of the inability work at the same level as he had done before his hip injury, particularly because he found it difficult to work two days in a row. Most of his work since he semi retired was at a weekend and he quite often worked on Saturdays and Sundays. That became particularly difficult because, even after he had made a significant recovery, the residual problems with his hip which included the onset of pain after prolonged periods of standing or walking and which made it difficult for him to negotiate steps without some assistance, all combined to leave him in a very exhausted state and in some pain at the end of a day’s work. It was, therefore, particularly difficult to go back to work the following day.

112 However, there was also other evidence, and I will come back to this in due course, that following his injury and following the period where he went back to the same number of hours of work that he had performed before he was injured, the pharmacy changed hands. Following a revamping of the staffing of the pharmacy under its new owners, it became more difficult for the plaintiff to maintain his previous level of part-time employment. On that evidence, although it remained a matter of some doubt, he was not able to maintain the same level of work at that particular pharmacy irrespective of the effect of his injury.

113 Apart from the residual physical effects, which have never entirely resolved, the plaintiff also suffered psychiatric consequences of his injury. These were, as was the pain and physical incapacity, particularly acute in the period immediately following the incident, but they have never entirely left him. He has suffered quite graphic nightmares and there have been times when he has had visions, whether he is asleep or awake, of people breaking into his room and threatening to attack him. The anxiety which this incident has heightened, given his earlier experiences of robberies when working in the pharmacy, has made him especially uneasy and quite anxious when he is at work.

114 As far as the medical evidence is concerned, there is no argument that, first of all, he did suffer a serious fracture to the right ilium and for a period of time this would have been both a significant disability as well as the source of very considerable pain.

115 There are in evidence reports from orthopaedic surgeons on that aspect of his injuries. In Exhibit D, which contained the relevant medical reports on which the plaintiff relied, is a report of Dr Habib of 21 November 2005 in which Dr Habib, apart from accepting the earlier history and recording the radiological evidence as well as the treatment which the plaintiff had undergone, diagnosed a “moderately severe residual symptom” which was likely to be permanent. Professor Nade, on the other hand, whose report appears in those relied on by the defendant (part of Exhibit 30), reaches a conclusion that the condition of the plaintiff in a physical sense has now plateaued, but does not agree with Dr Habib’s prognosis Professor Nade’s report is almost eighteen months after that of Dr Habib and may be a consequence of further improvement not expected by Dr Habib. Professor Nade expressed the view that there was no significant long-term impairment, that there might be some pain with movement, but that any significant pain would have resolved after the first few months immediately following the injury, that any residual pain would only be the consequence of some overactivity which could be avoided by appropriate precautions on the part of the plaintiff.

116 In fairness to the plaintiff, it has to be said that that Professor Nade’s diagnosis does not differ greatly from the plaintiff’s own evidence. Most of the pain he now suffers is a consequence of overuse of the hip through prolonged standing and/or walking and of difficulties which he has in undertaking certain activities. In that regard one matter of some particular relevance, in view of the diagnosis of atrial fibrillation in 1996, is the fact that the program of exercise which involved jogging as a means of keeping the symptoms of that condition at bay has had to be abandoned entirely. As a consequence for the purpose of treating that condition, the plaintiff now has to rely entirely on medication and not any effective exercise program.

117 Turning to the psychological and psychiatric aspects of the injury, the plaintiff was placed in the care of Dr Benjamin, a treating psychiatrist, whose reports dated 24 March 2003 and 29 November 2005 are part of Exhibit D. There was also in evidence the medico-legal opinion of Dr Selwyn Smith of 18 August 2003, a report which was prepared for the purpose of the plaintiff’s application for victims compensation, in which he was successful. A report prepared by a psychologist, Miss Susan Huxley, for the same purpose and dated 16 August 2003 was also in evidence. There was, in the defendant’s case, the reports of a psychiatrist, a Dr Derek Lovell, dated 19 January 2006 and 23 August 2006.

118 All of the psychiatrists whose reports were in evidence endorsed the diagnosis of Dr Benjamin, the treating specialist, of an adjustment disorder with depressed mood, a diagnosis which, referring to something I said very early in the judgment, goes some way to explaining why the plaintiff presented on this aspect of the case in a somewhat dramatised way given the fact that he was relatively taciturn witness. When it came to the description of his injury and its aftermath, he presented in a way consistent with a person who has been adversely affected by the experience and therefore, if anything, inclined to, if not exaggerate, be preoccupied with those consequences both physical and psychiatric.

119 In that respect Dr Benjamin also diagnosed, although that is not a diagnosis shared by the other psychiatrists, of chronic pain disorder which would even further explain such preoccupation. It is also generally agreed that, the condition has now stabilised and that it is capable of control with an appropriate regime of drugs which include the drug prescribed by Dr Benjamin which the plaintiff is still using.

120 On that evidence, I now turn to the actual assessment of damages. As far as general damages are concerned, the matter is governed by the parameters set down by the Civil Liability Act which I have had no occasion to refer to that Act up to this point, in view of the fact that I have proceeded on the basis that there is nothing in the Act which disturbs the ordinary application of common law principles to the question of liability to this case. I also note at this stage that the original reliance in the pleadings on contributory negligence and the evidence of Mr Crossley in that respect have no relevance on the outcome because that particular aspect of the defendant’s case was abandoned in the course of the hearing. I commend the defendant for taking that position. It seems to me that there was very good reason for doing so given the intuitive nature of the plaintiff’s response to the threat which presented itself. It would have been an extremely difficult task to establish contributory negligence notwithstanding the views of Mr Crossley.

121 Furthermore, any related defence that might have arisen under the Civil Liability Act did not have to be considered.

122 The only relevance of the Act was the extent to which it might regulate the damages that would otherwise be recoverable and that is particularly relevant to general damages of the provisions of s 16. It was submitted that taking account of both the physical and psychological consequences, general damages should be assessed at twenty-three per cent of the most extreme case. I accept that as a proper assessment of that aspect of the plaintiff’s loss. His psychiatric condition, which is not the subject of any deliberate and systematic exaggeration on the plaintiff’s part, has had a quite disturbing and permanent effect of the plaintiff even though there has been a significant resolution of its most serious consequences following the incident. Twenty-three per cent of the most extreme case in those circumstances, in my view, is not unreasonable and that translates into an award of $21,500.

123 Past out-of-pocket expenses I have no reason in the circumstances to interfere with and there was mathematical agreement on those figures between the parties at $7,487.88. Future treatment, it was submitted, should be assessed at $10,000 based on the need for, inter alia, monthly visits to the plaintiff’s general practitioner in order to, amongst other things, maintain the prescription of the medication which he continues to take both to alleviate the pain in his hip and, more importantly, to control both his heart condition, which is now partly a consequence of the incident, and his psychiatric condition which is a consequence of the incident.

124 I do not accept that it is necessary to go to a GP every month for that purpose and I make two observations in that regard. One, it would not be necessary, even if there was no other purpose for visiting the GP, to go every month in order to maintain a regime of prescriptive medicine, particularly since the plaintiff is a pharmacist. I am not advocating that Mr Brown should act illegally, but the point is that in a position to obtain from a medical practitioner prescriptions which would carry him beyond a month at a time. Secondly, and perhaps even more importantly, a man of his age - he is now sixty-eight - can be expected to make occasional visits to his general practitioner for ordinary purposes of review and, given his heart condition, reasonably frequent visits.

125 When all of those matters are taken into account, I cannot accept the suggestion that a significant sum should be awarded in order to support monthly GP consultations. In those circumstances, and taking account of the continuing need for expenditure on the various medications which are a consequence of the injury, half the amount sought, in my view, would be an appropriate one. I accordingly award the sum of $5,000 for future medical and related expenses.

126 I come to what in the plaintiff’s case was the major item in the damages claimed, namely, past and future economic loss. I begin by dealing with the discrete thirteen-week period about which there is no real dispute. This was a period when the plaintiff was not in a condition to return to work and his loss during that period should be assessed on essentially the basis proposed in the plaintiff’s detailed submissions, that is, on the basis of twenty-five hours a week at $35 an hour, which was the level at which the plaintiff was working immediately prior to his injury.

127 I put to one side the evidence from the plaintiff’s tax returns and the resulting argument which arose in the course of submissions concerning the appropriate basis for calculating economic loss in view of the fact that the plaintiff had placed between himself and his employer a trust into which his wages were systematically paid. This diverted the salary into investments for the purpose of superannuation. I regard that process as a matter which neither inflates nor reduces the damages that are assessable on the basis of the actual wages paid by the pharmacy to the plaintiff by way of wages. That is the figure on which the calculations have been based and which I accept is the appropriate one. I have in taking that approach taken account of the general observations of the High Court in the decision in Husher v Husher (1999) 197 CLR 138.

128 I do not accept the proposition put by counsel for the defendant, Mr Gracie, that the diversion of the funds with the prospective enhancement of the plaintiff’s ultimate financial position through the benefits of superannuation is a matter which should be used to reduce what should otherwise be recovered, in particular, for damages for past economic loss such as the thirteen-week period to which I am currently referring. I accept the very helpful calculations which I referred to earlier in the sum of $8,867.43 which represents the net income loss for that discrete period.

129 It is, in my view, appropriate to approach the rest of the plaintiff’s lost earnings as essentially future loss, although some of it clearly now falls into the past. The point is that the plaintiff demonstrated by his own return to work at the end of the thirteen week period that, prima facie, he was capable of resuming a level of employment comparable to that which he had undertaken prior to his injury.

130 With regard to his subsequent reduction in work hours, I have already observed there is considerable uncertainty as to whether that is a result forced on the plaintiff because of his injury or a combination of choice, given his age, and of necessity independent of his injury, given the re-working of the schedule of those employed at the pharmacy after the change of ownership.

131 In those circumstances, I am not satisfied that damages for lost earning capacity for the remaining period should be based on any proven reduction in that capacity. The plaintiff is sixty eight and on his own evidence he intends to finish work when he turns seventy, although there was some earlier evidence that his original intention was to work until he was seventy-five. Even if that intention were revived, it has to be measured off against the actual age of the plaintiff and the fact that given his heart condition there may be intervening circumstances which would have, if not prevented his continuing work, certainly reduced the amount of work which he was capable of undertaking from the time he turned seventy.

132 When all of those matters are taken into account, it is my view that the most that the plaintiff can recover is a relatively modest sum by way of a buffer or cushion calculated in the way advocated by the High Court because of the impossibility of quantifying with any precision the loss to the plaintiff from the point of time that he returned to work following his convalescence. The appropriate amount is a sum of $30,000.

133 That, on my calculation leads to a total amount of damages of $72,855.31 and, subject to any need for the application of the slip rule, I enter a judgment in the plaintiff’s favour in that amount. That would in ordinary circumstances lead to the further order that the defendant pay the plaintiff’s costs. Mr Dunn, I do not know whether there is any reason why you wish either to make any submissions yourself or to have the matter stood over for that purpose.

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01/11/2007 - Words added "I cannot accept" - Paragraph(s) 125