Sinclair v Caloundra Sub-Branch RSL Services Club Inc
[2001] QDC 196
•24/08/2001
DISTRICT COURT OF QUEENSLAND
CITATION: Sinclair v. Caloundra Sub-Branch RSL Services Club Inc
[2001] QDC 196PARTIES: MATTHEW JOHN SINCLAIR (Plaintiff)
v.
CALOUNDRA SUB-BRANCH RSL SERVICES CLUB
INC (Defendant)FILE NO/S: D317/99 DIVISION: PROCEEDING: Trial ORIGINATING District Court Maroochydore COURT: DELIVERED ON: 24 August 2001 DELIVERED AT: Brisbane HEARING DATE: 28, 29 September 2000; 21 December 2000; 26 April 2001 JUDGE: McGill DCJ ORDER: Judgment that the defendant pay the plaintiff $10,428. CATCHWORDS: TRESPASS – To the person – whether more force used than
reasonably necessary – whether contributory negligence
available – Criminal Code s.277CRIMINAL LAW – assault – defences – prevention of repetition of insult – whether necessary to show loss of self control – Criminal Code s.270 Battiato v. Lagana [1992] 2 Qd.R. 234 – applied
White v. Connolly [1927] St.R.Qd. 75 - applied
R v. Prow [1990] 1 Qd.R. 64 – cited
Stingel v. R (1990) 171 CLR 312 – cited
Horkin v. North Melbourne Football Club Social Club [1983]
VR 153 – followed
Fontin v. Katapodis (1962) 108 CLR 177 – followed
Hackshaw v. Shaw (1984) 155 CLR 614 – distinguished
Kirkwood v. Bishop (Plaint 4695/88, Robin DCJ, 6.2.92,
unreported) – followedBriginshaw v. Briginshaw (1938) 60 CLR 336 – applied followed COUNSEL: M. Grant-Taylor SC for the plaintiff
K. B. Varley for the defendantSOLICITORS: Boyce Garrick for the plaintiff
Ebsworth & Ebsworth for the defendant
This is an action for assault. The original claim filed on 1 September 1999 sought damages for personal injuries which were alleged in the statement of claim to have been due to the negligence and/or breach of statutory duty by the defendant. In an amended claim and statement of claim filed 13 October 2000, for which leave was given at the commencement of the trial (p.2), an alternative claim for damages for assault was added. In the written submissions delivered on 6 February 2001, the plaintiff abandoned reliance on any cause of action in negligence or breach of statutory duty, but submitted that the defendant was liable for assault and battery.
Essentially the plaintiff alleges that while he was outside the defendant’s club in the early hours of 5 April 1998, he was grabbed by an employee of the defendant, punched in the face twice, and then picked up by that employee and another employee and thrown onto the road outside the club. The defendant admits that there was some non-consensual physical contact between an employee of the defendant and the plaintiff, but said that this was no more than a control hold placed on the plaintiff by a security guard who removed the plaintiff from the defendant’s premises and released him, whereupon the plaintiff dropped to the ground. The plaintiff alleges that in the incident he suffered various injuries, particularly to his back; the defendant disputes the proposition that the plaintiff suffered any injury on this occasion. The defendant submitted that no more than reasonable force had been used to remove the plaintiff from the defendant’s premises in circumstances where the plaintiff had been asked to leave and had refused to do so. It is appropriate that the conflict in these versions be resolved, although it was submitted on behalf of the plaintiff that even on the defendant’s version there had been an unlawful assault, and that the defendant was liable on either version.
Background
The defendant operates a licensed club situated at West Terrace, Caloundra, with a range of facilities trading from 9 a.m. to 2 a.m., seven days a week: Ex 15. The main entrance of the club (shown from the outside in Ex. 15) leads through automatic sliding glass doors into an entrance foyer; there is a reception desk on one side and also a small semi-circular desk in the middle where visitors can sign in. There was at the relevant time a security video system in operation at the club, by which a video tape was made, derived from a number of cameras, one of which was located in the foyer behind this small desk pointing towards the main entrance. Unfortunately, it did not produce a continuous video tape of that scene; the system in use involved recording, at intervals of a little under 2 seconds, of images recorded by each camera. It is possible to extract a tape of the images produced by a particular camera, but the effect is like seeing a series of still photographs projected about every two seconds. Things which happened slowly are recorded reasonably well, but things that happened quickly can easily occur completely between consecutive images. A series of these images is presented separately as Exhibit 1, and illustrates the general appearance of the foyer, although it is somewhat distorted by the wide angle lens used.
There were two surveillance video tapes made available to me. The first, Exhibit 13, shows three particular incidents which occurred in the foyer, but does not show anything after the point where the group of relevant people moved out through the main glass doors. In the course of the trial, I expressed some curiosity about seeing more of the surveillance video[1] and, as a consequence, after the trial a longer video, covering the period from about 6 p.m. till 2 a.m., was provided: Exhibit 23. This covers a wider period, and is in some respects clearer, although it still does not show anything of what happened when any actual assault took place, after the party moved out of the foyer. There are, however, still some gaps, of up to about half a minute, in this tape, and other periods where the timing of the scenes recorded does not appear to be regular, so it is not something which can safely be treated as a complete record of everything that happened in that foyer that evening. In any case, the images on the tape are at times not particularly clear, so that it is sometimes difficult to identify with confidence particular individuals. Nevertheless, the surveillance video is of great assistance where something is shown in it.
[1] P.167 and see pp 195-199, 201-2.
Travel to the club
It was not disputed that the plaintiff was adversely affected by alcohol during the evening in question, although the plaintiff said that any alcohol he had taken was consumed prior to his arrival at the defendant’s premises[2], and there was no evidence to the contrary. The plaintiff at the relevant time lived with his mother and sister in a block of units in which there also lived a Ms Cobby, and in the afternoon and evening there was a party in her unit to celebrate the first birthday of her daughter. The plaintiff and his mother were at the party, as was a Ms. Prendergast (a friend of Ms. Cobby) and a Mr. Hancock, and his fiancee[3].
[2] Plaintiff p.13; supported by Mrs Till p.100 and Jasmine Till p.149.
[3] Plaintiff p.29; Mrs Till p.112; Mr. Hancock p.259; Ms. Cobby p.284; Ms. Prendergast p.278.
The plaintiff said that he left this party to go to a beach party (p.10), taking with him a bottle of Bourbon: p.29. Mr. Hancock however said that he took the plaintiff with the plaintiff’s mother and sister to the RSL Club, but the plaintiff had left the club later: p.259. The plaintiff denied this: p.34. The plaintiff’s mother and sister denied that they had travelled to the club with Mr. Hancock, and said that they travelled in a courtesy bus provided by the club[4], together with Ms. Cobby and Ms. Prendergast. Ms. Cobby (p.284, 285, 288) and Ms. Prendergast (p.278, 280) agreed that they had travelled on the courtesy bus, but said that they went with other people and that they had joined up with the plaintiff who had apparently travelled with Mr. Hancock, along with his mother and sister, when they arrived at the club. They (and Mr. Hancock) said he subsequently left the club with Ms. Prendergast’s brother to go to the other party: p. 279, 283, 286, 260. The plaintiff’s sister said (p.148) that Ms. Cobby had taken the baby to the club and that she had been minding it there, and Mr. Hancock (p.261) also thought that the baby was there; both Ms. Cobby (p.288) and Ms. Prendergast (p.278) denied that the baby had been taken there that night.
[4] Mrs. Till p.98, 112; Jasmine Till p.148, 160.
I mention these matters not because they are of particular relevance but because they are issues which can be resolved with reasonable confidence with the assistance of the surveillance video, and because they illustrate the conflicts between the various witnesses as to what happened that night. The surveillance video is not always clear, but I am satisfied that it shows that at about 9.50 p.m. the plaintiff’s mother and sister arrived at the club, together with two or three other people who may have been the others who came on the courtesy bus, but there is no sign of a baby, and no sign of Mr. Hancock who was that evening wearing a distinctive red shirt. He appears in this shirt at about 11.04 p.m. when the plaintiff and three other teenagers arrived at the club and waited in the foyer while Mr. Hancock came out to allow them to come in[5]. Mr. Hancock was a member of the club at the relevant time. The plaintiff’s solicitors after seeing the long video tape submitted that Mr. Hancock and his fiancée are shown arriving (without the plaintiff and his family) at about 9.23 p.m., although that part of the video is not sufficiently clear for me to identify Mr. Hancock positively. But there is no one who might have been Mr. Hancock in the foyer of the club anywhere near the time when the plaintiff’s mother and sister arrived, and I am satisfied that he did not, on this occasion[6], take them to the club. I accept that they went on the courtesy bus, and that the plaintiff did not go to the club either with them or with Mr. Hancock.
[5] Plaintiff p.12; Mr. Hancock p.261.
[6] Mr. Hancock said that he had taken them there on 4 or 5 occasions, and was “pretty certain” he did so this time: p.266.
The timing of the video tape suggests that the party at Ms. Cobby’s unit had broken up about 9 p.m. and that suggests that the plaintiff had left that unit to go to the other party by 9 p.m[7]. He would therefore have been at the party and in a position to consume whatever alcohol he had consumed for about two hours, or more, on that evening, before he arrived at the club.
[7] He said at about 7 p.m.: p.33. That was probably no more accurate than any of the other time estimates given for events that evening, by him and others.
The plaintiff said (p.30) in evidence that he and others had finished the bottle of Bourbon that he had taken to the party, and initially said (p.11) that he drank three drinks of Bourbon and coke there, although he later agreed (p.86) that he and three others had shared the bottle, so he might have drunk one quarter of the bottle. He denied (p.91) that he had told police two days later that he had drunk half a bottle, as appears in the record of the police investigation of the matter (Exhibit 3 and see p.110), although the statement that the plaintiff had had half a bottle of bourbon also appears in the hospital records: Exhibit 4. The plaintiff at the time was less than a month short of his 17th birthday (p.7); he said that he had previously had more to drink at parties than he had had on this occasion: p.31.
The surveillance video had been discovered by the defendant, and had been made available to the plaintiff’s solicitors, and the video had certainly been available to the plaintiff prior to the time when he gave his evidence. It is therefore unsurprising that his evidence about what he did, in the foyer at least, closely corresponds with what appears in the video. The video shows that he arrived with three friends about 11.04 p.m, and Mr. Hancock came out to get them. The security officer employed at the club, who as the person who later assaulted the plaintiff, said that he thought the plaintiff had arrived earlier in the evening with a group including adults: p.241. That is consistent with a statement he made in June 1998 (Exhibit 22) but it is not supported by the video tape. He said this was at about 10.00 p.m., about two or three hours before the assault, which occurred a little after 1.00 a.m., so a two hour period would have been correct, and the plaintiff did arrive with three other teenagers and entered the club in the presence of Mr. Hancock, so this may have been a reference to that occasion as well. If it is not, the incident does not receive any support from the video tape, and I am not persuaded that the plaintiff was at the club earlier on 4 April 1998 than when he arrived at about 11.04 p.m[8].
[8] See also Jasmine Till p.154.
When the plaintiff and his friends arrived, he sat with his mother and sister and the others who were in this party: p.12. Mr. Hancock said the plaintiff appeared to have been drinking (p.261) and Ms. Cobby, Ms. Prendergast and the plaintiff’s sister all described the plaintiff as drunk when he arrived[9]. Mr. Hancock, Ms. Cobby, and Ms. Prendergast all said they left prior to the plaintiff’s leaving[10]. At 11.26 p.m. there is a glimpse of someone in a red shirt on the video and this might be Mr. Hancock leaving. At about 24 minutes past midnight the plaintiff is shown going to the reception desk and returning; he said that he went to ask about the courtesy bus so that they could go home: p.14.
[9] Ms. Cobby p.286; Ms. Prendergast p.279; Jasmine Till p.160.
[10] Mr. Hancock p. 262; Ms. Cobby p.286; Ms. Prendergast p.279; I accept that Mr. Hancock left before the plaintiff, as the plaintiff conceded: p.41 (contra Mrs. Till p.128).
The move to leave the club – incident in the foyer
The plaintiff, his mother and his sister all said[11] that the sister had wanted to hear the last song played by the band, and (apart from the plaintiff) that the plaintiff and his mother had begun to move to the entrance with Ms. Prendergast, who however then went back to fetch the plaintiff’s sister. The defendant’s duty manager who was the person in charge of the club at the relevant time, Mr. Spaul, said that his attention was first drawn to the plaintiff when he saw him moving towards the foyer with his arm around the shoulders of two women: p.203. This evidence was supported by the evidence of Mr. Murray, the security guard (p.242) although by the time the plaintiff came within range of the video camera, the only other woman with him was his mother, who had his arm around her waist[12]. However, two men in white shirts, apparently Mr. Spaul and Mr. Murray, are with the plaintiff and his mother from the time they first appear in the video, and if Ms. Prendergast had been accompanying the plaintiff and his mother towards the exit at one point, this may have been the other woman seen by Mr. Spaul and Mr. Murray. There was not another woman who went out the exit just after the plaintiff and his mother came into video range.
[11] Plaintiff p.14; Mrs. Till p.100; Jasmine Till p.149.
[12] She said however that the plaintiff had been “cuddling” her and Ms. Prendergast: p.128-9.
Apart from Mr. Spaul and Mr. Murray, there was a male reception attendant, wearing a white shirt and blue waistcoat, who was also in the vicinity, although he stood a little way apart from the group while they were in the foyer. This was Mr. Ryan, and his recollection was only of the plaintiff being supported by his mother (p.185) although that may have been because his attention was not drawn to the plaintiff until after Mr. Spaul began to speak to him, by which time the other woman had moved away[13]. Overall, I accept that the plaintiff did have his arms around his mother and another woman as he approached the foyer. Both Mr. Spaul (p.203) and Mr. Murray (p.232) thought the plaintiff was affected by alcohol, and, because he appeared underage, Mr. Spaul was concerned that he had been drinking while on the club premises: Exhibit 16.
[13] The evidence of Ms. Hill, a receptionist who was behind the reception desk was similar: p.272. The same explanation may apply.
It is clear from the video that the only people who initially came up to the plaintiff and his mother were the duty manager and one security officer: see Exhibit 1. The plaintiff said that he was confronted by four people at this point (p.15) and the original statement of claim referred to the duty manager and four security guards (para. 5) although the plaintiff said that that was not what he had told his solicitor: p.27. Dr. Tomlinson, who saw the plaintiff for the purposes of a report in 1999 recorded a history of being confronted by four bouncers and the manager (Exhibit 6), but the plaintiff denied that he had told Dr. Tomlinson that: p.87. Mr. Murray was the only security officer employed by the club at that time[14]; however, Mr. Ryan, who was then working as a receptionist (p.185) was standing in the general vicinity of the other two for most of the time while they were in the foyer, and walked out of the foyer with them when they moved outside. It appears from the video that there was at least one other male employee similarly dressed present that evening, but he was not with the group in the foyer at any time.
[14] Mr. Spaul p.202; Mr. Murray p.229; Mr. Ryan p.186. I accept this evidence.
According to Mr. Spaul he asked how old the plaintiff was and the plaintiff’s mother replied he was 18: p.203. However, Mr. Spaul signed a follow up report prepared on 30 April 1998 which said that the plaintiff responded at this point that he was not 18: Exhibit 16. Mr. Spaul was not able to explain this discrepancy in cross-examination: p.220. The plaintiff denied that he had been asked whether he was 18 (p.69) but his mother said that he had been asked how old he was: p.101. Both said[15] that the manager had asked if he had been drinking on the premises and had been told no, although he had been drinking elsewhere.
[15] Plaintiff p. 14, 67, 72; Mrs. Till p.129.
The plaintiff said that he was asked for identification and that he produced his learners permit and handed it over, it was looked at and handed back: p.15. His mother also said he was asked for identification: p.130. It was common ground that Mr. Spaul had asked for identification, and in his evidence he said that he asked for that after the plaintiff’s mother had claimed that he was 18, and that some identification was produced but that the mother then took exception to this and the document was snatched back by the plaintiff: p.203. He also said that he had asked the plaintiff’s mother whether she was a member of the club and she claimed that she was and appeared to search for, but ultimately did not produce, a membership card: p.203.
In his statement made in June 1998, Mr. Spaul has the first of these two incidents, the request to the mother to produce the membership card, coming first: Exhibit 17. The plaintiff and his mother both said[16] that there was a request for the mother to produce some evidence of club membership and that she had produced a receipt which was functioning as temporary proof of membership. When she did so, Mr. Spaul had taken this and torn it up, and then said that she was not a member now. No such incident appears on the video, but they said that this occurred outside, in connection with a request to use the courtesy bus. I shall come to that incident later.
[16] The plaintiff p. 15, 16: Mrs. Till p.131.
Evidently Mr. Spaul was concerned about the plaintiff being in such a state on licensed premises, and complained about his coming into the club when he was intoxicated, and asked him not to do it again: Exhibit 17. The plaintiff’s mother took exception to these remarks, and became irate and abusive. The plaintiff conceded that she became irate and was swearing at the men: p.70. Mrs. Till said she very much doubted that she was swearing: p.105. Mr. Spaul said that they became abusive and aggressive: p.204. Mr. Murray also recalled that there was abuse (p.243) and Mr. Ryan (p.185-7) and Ms. Hill (p.271), the female receptionist who was behind the counter at the time, recalled coarse language and swearing from the plaintiff and his mother to Mr. Spaul. The plaintiff and his mother were asked to leave: p.204.
It is apparent from the video (Exhibit 23) that there was initially some conversation while the party was to the left of the central desk, with Mr. Spaul between the plaintiff and the door, from 1.04.20 to 1.05.07, when the plaintiff and his mother moved between the duty manager and the desk towards the door, then turned and faced the duty manager, and the conversation continued at this point for almost a minute. During this conversation at 1.05.32 a.m. the plaintiff’s sister, Jasmine, walked past the group towards the door, then turned and came and stood near her mother. At 1.05.50 a.m. she went outside the door, where she was visible outside for a while before she disappeared[17], while the others moved away from the desk but more to the left rather than towards the door, and the conversation continued. This is all clearly contrary to Mrs. Till’s evidence that she and the plaintiff were not allowed to leave: p.131. At one point during cross-examination Mrs. Till said that the reason they had not left the club at that point was because they had not been allowed to use the courtesy bus: p.132. I do not accept that there was any discussion about the courtesy bus at this point; I am satisfied that that happened later, outside.
[17] She said she waited outside the doors for a while, then moved away a few metres: p.163.
Eventually at 1.07.30 a.m. the group moved outside, with the plaintiff’s mother going first, followed by the plaintiff walking with someone from the club in a white shirt, presumably Mr. Murray, but with no indication of any physical contact between them at that point[18], and with the other club employee in a white shirt, presumably Mr. Spaul, walking out beside Mr. Ryan. During the period while they were in the foyer after the plaintiff and his mother moved past the duty manager, there was obviously nothing to prevent them from simply walking out of the club, but the plaintiff’s mother can be seen gesticulating from time to time and that is consistent with her then being aggressive and abusive towards, in particular, Mr. Spaul. The video was also consistent with Mr. Spaul and Mr. Murray trying to encourage them to leave the club and their resisting this at the time.
[18] The plaintiff said there was none while they were inside: p.25.
I find that after the initial conversation Mrs. Till in particular became aggressive, abusive and uncooperative, and that they were resisting attempts to get them to leave. Mr. Spaul said that he asked them to leave: p.203-4. I accept that this occurred while they were inside. Some point was made about the evidence of Mr. Spaul that he did not see Jasmine Till inside the club: p.217. Clearly she was standing with the group for a short time, but I think it is understandable that at that stage Mr. Spaul would have been concentrating on the others, particularly Mrs. Till, and would not have noticed her. Ms. Hill at reception recalled seeing a child there at one point: p.271. Indeed, the video in this respect is also inconsistent with the evidence of Jasmine Till, who said that there were four guys from the club there, and that she just walked straight past the group in the foyer: p. 150, p.162.
It is apparent from the video that the group remained not far outside the front doors for a time, but after about three minutes they moved out of sight completely. The plaintiff said that while they were outside they were asked to leave, his mother had said that they were wanting to use the courtesy bus (p.16) and the people from the club said that they could not use it. He said that when they were outside his mother produced the membership receipt which Mr. Spaul tore up: p.16. The evidence of Mrs. Till (p.131) and Jasmine Till (p.164) was to the same effect. The plaintiff said that as a result of this incident his mother became upset and became loud. Mr. Spaul said that he refused to allow them to use the courtesy bus because of the behaviour, particularly the swearing (p.205, 216) and Mr. Murray also said that they were not allowed to use the courtesy bus because of their threats of abuse: p.233. I find that they were intending to use the courtesy bus, and that they were not allowed to do so. Jasmine Till said that outside they were all arguing with raised voices, and that one of the club employees had come to her and said that everything would be all right: p.150. Both Mr. Spaul (p.207) and Mr. Ryan (p.192) denied that they had seen or spoken to a child outside that evening; Mr. Murray said that he saw a child (he thought a boy) outside near him at one stage: p.244.
The assault – the plaintiff and his witnesses
The plaintiff said that he thought at this point his sister had walked away to the pathway at the front, presumably to the kerb, then he told his mother to go and see if she was alright, and the duty manager then said to his mother “Go to the entrance of the premises, to the gutter where you belong”: p.16. He had responded “You can’t talk to my mother that way” and that they were leaving anyway, and that his mother had walked away towards his sister leaving him facing four members of the club. He then said to the duty manager “If I ever see you down the street away from the Caloundra RSL I would be inclined to punch you in the face”: p.17. There was a short pause after which he was approached aggressively by one of the bouncers who grabbed him in the throat, swung him into a headlock, hit him twice on the side of the face and then called to someone else after which he was lifted off the ground and thrown by the person holding him in the headlock and someone else grasping him around the legs. He was thrown towards the road in front of the entrance to the club and landed in the gutter just past the pathway on his back: p.17. He landed on his lower back, just above his tailbone: p.18.
Mrs. Till said that Mr. Spaul had said to her “Go and stand in the gutter. That’s where you belong”: p.101. She said that she subsequently went to walk across to the phone box across the road, but also that she went to go to Jasmine: p.101. Jasmine had said that Mrs. Till went across to the phone box (p.150) and that she did not go with her: p.164. The plaintiff in cross-examination agreed that at one stage his mother had gone across the road to use the telephone: p.43. Mr. Spaul also said that Mrs. Till went over to the phone box: p.205. I am satisfied that Mrs. Till did go across the road to the phone box, and Jasmine Till had earlier moved away from the entrance of the club to the footpath, and that left the plaintiff where there had been the earlier argument about the use of the courtesy bus.
The plaintiff admitted that then he was still on the club premises (although out of the building) and that he had been told to leave: p.73. The plaintiff’s initial description in evidence in chief of this incident did not sound to me as though he had been moved any distance while he was held in the headlock before he was thrown, but in cross-examination he agreed that after he was placed in the headlock he was walked towards the gutter: p.77. There were more details of just how this occurred given in cross-examination: p.78. He was being held by the first person in a headlock when he was picked up by someone else that he cannot identify, the first person then let him out of the headlock and grabbed him round his chest and shoulders and threw him side on with his right side low to the ground: p.79. However, he also said that his right side was facing the sky and that he had landed flat on his back: p.79.
Jasmine Till said that she saw one of the men grab her brother in a headlock and then the young one who had spoken to her went over and grabbed his legs, they swung him once and threw him in the air and he landed on his back in the gutter: p.151-2. She denied that he had just fallen to the ground: p.165. Mrs. Till said that she heard her daughter call out to her and saw the plaintiff airborne and that he landed in the gutter on his back: p.102. Under cross-examination she said that she saw his head bounce off the lip of the gutter and that his back went right down on the gutter: p.114.
The assault – the defence witnesses
According to Mr. Spaul, the plaintiff was abusive and aggressive outside and made various threats, and refused to leave notwithstanding that he was asked to leave on a number of occasions: Exhibit 17. He said that eventually there was a particularly obnoxious threat made[19] after which he told Mr. Murray, the security officer, to get the plaintiff off the property: p.205. Mr. Murray put the plaintiff in an arm lock, put his right hand around the neck and his other arm around him and walked him five or six metres to the gutter: p.205, 221-2. Initially he said that Mr. Murray then pushed him away (p.205) but later he said that there was no push at all and Mr. Murray just released him and told him to go: p.222. Once he was released, the plaintiff fell on to the bitumen on his backside (p.205), a little to the side, and then went over on to the right side on the ground: p.223. At one point he suggested that the plaintiff had gone down because he had fallen off the gutter straight on to the ground: p.222. Mr. Murray said that when he was instructed to remove the plaintiff he put him in a neck restraint[20], escorted him on to the road and placed him on the surface in a controlled way: p.236. The plaintiff ended up sitting there almost cross-legged, with only his backside touching the ground: p.239. They denied that the plaintiff had been punched, or picked up and thrown in the gutter[21]. Mr. Ryan said he did not see the incident, as he went inside after they had been asked several times to leave: p.189.
[19] “I’ll rip your head off and shit down your throat”: p.205; see also Mr. Murray p.234; Mr. Ryan p.187.
[20] Which he said was different from a headlock: p.246.
[21] Mr. Spaul: punches p.206; throw p.223; Mr. Murray: punches p.236; throw p.236, 251.
How many club employees were present?
The defendant submitted that the plaintiff’s account involved the security officer and another club employee, that is other than the duty manager, having lifted the plaintiff, and there was not another club employee outside at the time. There are two difficulties with this approach. The first is that the longer video does not show Mr. Ryan returning particularly earlier than the others. He is not visible again in the foyer on the video until about 1.22 a.m., which must have been after the incident occurred. Although the video did not pick up his return through the front door, I think it unlikely that he would have been back inside for any great length of time before he was visible standing in the foyer.
The other difficulty is that the longer video also shows that there was another man dressed similarly to Mr. Ryan working at the club and from time to time in the foyer that evening. He does not appear in the video at the time of the incident in the foyer, or for some time after they move outside, but he is visible in the foyer at about 1.09.20 a.m. and just after that someone who might have been Mr. Spaul comes into the foyer from outside and then they go outside together. This person in the waistcoat can be seen standing at the back of the group outside the door until the group moves away from the door at about 1.10. a.m. Presumably this is the point at which the plaintiff was moved to the kerb, but it is not possible to see in the video any indication of what happened when he reached it, although there would certainly have been another person in a club uniform there available to pick up his legs.
Presumably the incident happened just after this, as two men in white shirts, apparently Mr. Spaul and Mr. Murray, are seen coming into the club about 1.12.30 a.m., although they go back out again shortly. One man in a waistcoat is seen coming in at 1.22.50 a.m., and another comes in at 1.22.20 a.m. Mr. Spaul and Mr. Murray are both back inside by 1.31 a.m. In these circumstances I am not prepared to accept that Mr. Ryan was inside when the incident occurred. I am also satisfied that at least two club employees wearing white shirts and waistcoats were outside with Mr. Spaul and Mr. Murray at the relevant time. Mr. Ryan said that no one else from the club would have been working outside the front door that night: p.191. However, Mr. Murray said that the courtesy bus driver was outside, he was also in uniform but that he did not get involved in the incident: p.223.
Subsequent events at the club
What the plaintiff recalled after that was getting up and the police arriving, his mother screaming and carrying on, and being asked to get into the police car, and saying that he would rather walk: p.18. He said that he was not immediately conscious of pain, and not sore when he got up: p.83. Mr. Spaul said that the plaintiff jumped straight up and continued abusing them, and did not appear injured: p.206. Mrs. Till also said that the plaintiff got up again and that he seemed alright at the time: p.102. The police arrived soon after this, having been called by someone at the club. Mr. Murray said that he called out to Ms. Hill to call the police (p.236). Mr. Spaul said that he asked someone at reception to call the police (p.206) and Ms. Hill said that she called the police at his request: p.271. The plaintiff said that while they were outside the duty manager told one of the club staff to call the police and that person then left: p.76. On the video at 1.08.30 someone in a white shirt (i.e., Mr. Spaul or Mr. Murray) came from the outside just inside the door and then went back out again, and that could have been the occasion when instructions were given to call the police[22]. I would in the circumstances expect that such a decision would be taken by Mr. Spaul if he were present, and I prefer the evidence of Mr. Spaul and Ms. Hill in relation to this.
[22] Jasmine Till said that Mr. Spaul went and rang the police: p.152.
Two police cars arrived with two or more police officers (p.44), one of whom was Sergeant Brown who gave evidence that when he arrived the plaintiff was standing up and moving around actively and swearing: p. 106. He did not appear injured, although he was upset and agitated, and he and his mother appeared to be affected by alcohol: p.107. He saw no injury to the plaintiff’s face. On the other hand, Mr. Murray said that after the plaintiff got up he was quiet and calm and different from before: p.251-2. Neither the plaintiff nor his mother complained to police that evening that there had been an assault (p.107)[23] although a complaint of assault was subsequently made to the police: Exhibit 3.
[23] Contra Mrs. Till p.113, but see plaintiff p.38.
Sergeant Ryan offered to take Mrs. Till and her children home in his car, and Mrs. Till and Jasmine accepted and got into the car, but the plaintiff declined this offer and walked off up the road: p.18. The other witnesses also said that the plaintiff had declined the offer and walked away, except for Mr. Murray who said that at one stage he saw the plaintiff running as he went past the hospital: p.236, 252. The plaintiff said that he collapsed at the first street he came to due to pain in his lower back and because his right knee gave way[24]. The police car containing the plaintiff’s mother and sister had in fact followed the plaintiff along the road; Mrs. Till also said that the plaintiff “went to the ground” (p.102), and Jasmine Till said that he collapsed on the ground: p.153. Sergeant Brown said that to the best of his recollection the plaintiff was standing up when he came to him, and the plaintiff just got into the police car: p.108. Mrs. Till and Jasmine however said that they got into the back seat, and that he was at that stage complaining about his back: p.102, p.117, p.155. He was taken to the Caloundra Hospital which was nearby; he had in fact walked past the hospital to the point where he was picked up by the police car: p.108. I think it unlikely that he would have been taken to the hospital at that point unless there was apparently something wrong with him. The police file, Exhibit 3, records that he was taken to hospital after complaining of a back injury.
[24] P. 18 and see p.61, p.83.
At the hospital
The plaintiff was taken to the casualty department where he was agitated, yelling and screaming and swearing, and appeared to be moving around freely: p.109. Sergeant Brown left soon after that. Mr. Cummings was the nurse on duty at the time, and he said that the plaintiff walked in and did not appear to be distressed in his walk: p.181. Mr. Cummings (p.180) took the history which was recorded in the hospital notes: Exhibit 4. This states “Thrown out from RSL by security guards, landed in gutter on his back. Got up after incident and starting walking home – felt weak right leg and then collapsed.” According to this record, he arrived at the hospital at 1.30 a.m. Mr. Cummings found the plaintiff uncooperative, abusive and apparently drunk, and his mother was also abusive; he said he could not get near the plaintiff to carry out an assessment: p.180.
The doctor on duty, Dr. Dick, was notified and saw the plaintiff at 2.10 a.m. Both he and his mother appeared to have been drinking, and the notes in the history recorded that he had had “half a bottle of bourbon tonight”: Exhibit 4. Dr. Dick described him as “very intoxicated”: p.175. The history recorded there was
“Bouncers confronted [him] regarding drinking on the premises which he denies. Bouncers have asked him to leave. He asked them to make him leave. They physically removed him. Allegedly punched him once to the face. He then with his family in attendance argued with the bouncers. The police arrived and offered the family and him a lift home. He said he would walk. Got about 300 metres away before he collapsed.”
Dr. Dick could not find any facial injury to the plaintiff, but he did notice a small abrasion on the left posterior iliac spine region, that is the lower back area: p.170. This is to the left of the S1 vertebrae over part of the pelvis, bony prominence prone to grazing in a fall: p.174. Such an injury could be suffered if one fell over and landed on one’s lower back, although not if one simply sat down: p.176.
The plaintiff was rolling around and complaining of severe pain but would not allow the doctor to examine him, and did not behave in a way characteristic of people suffering back pain[25] who usually lie still: p.170. Both the plaintiff and his mother were abusive and swearing. Ultimately the plaintiff refused treatment (p.181) and demanded to leave, and a taxi was ordered: Exhibit 4. The plaintiff agreed that he refused treatment at the hospital and that he wanted to go home, because he said they were all so upset: p.46. Mrs. Till said that at one point the plaintiff started to crawl out of the hospital saying he wanted to go home, and she called for a taxi: p.120. Mr. Cummings agreed at one point during cross- examination that the plaintiff had tried to crawl out of the hospital: p.183.
[25] p. 170; Mr. Cummings expressed the same opinion: p.182.
They went home in a taxi, but there was some difficulty getting the plaintiff out of the taxi, he said because of his back and his knee: p.47. Mrs. Till said that she got the plaintiff out of the taxi with the assistance of the driver and Jasmine: p.104. Later in cross-examination she agreed that Ms. Prendergast and some friends of hers had assisted and helped get the plaintiff out of the taxi (p.123) and Ms. Prendergast also said that some of her friends got him out of the taxi and put him on the concrete: p.280. Ms. Cobby gave similar evidence: p.286-7. An ambulance was summoned, and arrived in the care of Mr. McGurk who completed a written report: Exhibit 2. According to that report[26], when he arrived the plaintiff was lying on the concrete complaining of back pain; he had no obvious injury and appeared intoxicated as did his mother, both of whom were complaining about the treatment at the hospital. Mrs. Till said that she wanted the ambulance to take the plaintiff to the Nambour Hospital but the ambulance man refused: p.153.
[26] See also p.297.
On an examination by Mr. McGurk the plaintiff appeared to have full use of his limbs, but he was placed on a stretcher into the ambulance and taken back to the Caloundra Hospital. He returned to the hospital at 3.45 a.m.: p.178. The plaintiff went to sleep shortly after he arrived back at the hospital (p.171) and remained asleep when he was admitted to the ward: Exhibit 4. His mother remained aggressive and abusive to hospital staff, and Mr. Hancock was called by Ms. Cobby and asked to go to the hospital to persuade her to leave: p.262.
According to Dr. Dick, the next morning x-rays were taken which showed no abnormality, apart from some indication of a congenital condition of the spine: p.172. The plaintiff was walking normally with no obvious distress: p.173. The doctor could not recall if there was any complaint of pain from the plaintiff at that stage. The plaintiff said that he was then complaining of pain: p.60.
Dr. Mortimer
| [40] | The plaintiff saw his own GP, Doctor Mortimer, on 7 April 1998 and according to the doctor’s notes (Exhibit 5) the history given was: |
“Assaulted 4.4.98 at RSL. Beaten up by four bouncers. Witnessed by mother. Punched left zygoma. Head in lock – picked up and thrown in gutter. Knocked out. Poor recollection of events – from being thrown to being in hospital. Complains of lower back pain. No headaches.”
On examination he was tender over the lumbo-sacral area, on the left zygoma, and there was a bruise over the left temple scalp. The doctor sought to obtain x-rays from the hospital; it does not appear that there was any follow up at that stage. Dr. Mortimer also recorded a visit on 8 September 1988 where there was a complaint of continued pain in the thoracic spine since beating at RSL: Exhibit 5. The plaintiff accepted that it was not correct to say that he was beaten up by four bouncers: p.61. There was also nothing in the evidence to suggest that he was knocked out in the incident.
On 6 April the plaintiff and his mother went to the police station and made a complaint of assault at the club: p.109. The plaintiff then did not have any visible injuries. The plaintiff said that the pain in his lower back had continued since the incident, as had pain in his right knee: p.22. He had also suffered a graze to his left shoulder in the incident. The pain is continuing in his back and knee; there is not much pain from movement but it becomes very stiff and painful to move if he remains in one position for too long: p.20. He said he had had no back trouble prior to this occasion (p.9) and had suffered no other injury to his back: p.19. The plaintiff said he went to a chiropractor in June 1999, not having been able to afford it earlier: p.86. His mother said she massaged his back at times when it was in spasm: p.105. The pain is not made worse by any particular activity[27], and he can walk or run for short periods: p.20. He said he had only surfed once since the incident and had been on a skateboard only once to roll down a driveway: p.67. Exhibit 5 records a visit to Dr. Mortimer on 3 June 1998 which includes a reference “skateboards and surfs”.
Medico-legal reports
[27] This is contrary to what he told the doctors: Exhibits 6, 8, 12.
The plaintiff was seen on 22 November 1999 by Dr. Tomlinson, a neurosurgeon, for the purposes of a medico-legal report: Exhibit 6. He gave an account which was broadly consistent with what he said at the trial, except that he referred to his having been drinking at 4 p.m. and being confronted by “four bouncers and a manager” as he was leaving. At the time of the examination he was complaining of constant low back ache aggravated by lifting and bending, with reduced tolerance for sitting and standing, and discomfort if he walked for long distances. There was also discomfort in the right hip and right knee, intermittent aching and swelling in the right knee. He was troubled by headaches, but not by facial numbness or neck pain, and the problem with the left shoulder had gone away. Examination also revealed a healed abrasion over the point of the left shoulder which was tender posteriorly. There was some mild restriction of lumbar motion (p.144), and a bit of laxity in the knee: p.144. There were also abrasions to the left elbow and the left wrist: p.145. Dr. Tomlinson sought additional imaging before providing an opinion.
There were x-rays taken on 11 January 2000 and an MR scan of the lumbar spine and right knee, and an ultra sound of the left shoulder, on the basis of which Dr. Tomlinson prepared a further report: Exhibit 7. The imaging did not indicate any evidence of fracture or dislocation, and Dr. Tomlinson diagnosed a chronic soft tissue injury to the lumbar spine which he thought was a permanent partial disability of 10% of the whole body. The MRI did reveal a mild broad base left post lateral L5/S1 disc bulge which Dr. Tomlinson regarded as a bit unusual for a young person, and consistent with having been caused by trauma on this occasion: p.146.
The plaintiff was seen by Dr. Curtis, an orthopedic surgeon, on 18 April 2000 for the purposes of a report: Exhibit 8. The report noted that the plaintiff had a pre- existing problem with the right knee which required arthroscopy on two occasions with initial good relief[28]. The history refers to being thrown to the ground by two bouncers at the RSL Club and landing flat on his back, attempting to get up but falling down again afterwards. There were complaints of continuing pain situated centrally across the lower lumbar region of the spine. It was present constantly and was aggravated by periods of prolonged immobilization, or by repeated bending, stretching, lifting, carrying heavy objects. He was at times woken by pain at night. He applied liniment to the back and took panadol tablets on most days, but there was no other treatment. He also complained of some restriction of movement of the neck, pain in the left shoulder with a clicking sensation when extending the arm behind him, some restriction in the left shoulder, and discomfort and swelling in the right knee after prolonged walking, and some other difficulties with the right knee.
[28] The plaintiff acknowledged that he had had prior operations on this knee, but said that they had eventually fixed the problem: p.9.
On examination there was a full range of movement of the left shoulder but with clicking on abduction and some tenderness to pressure. There was a full range of movement of the right knee and no abnormality apart from some tenderness. There was some restriction of movement of the lumbar spine and a slight deformity with mild lumbar scoliosis. X-rays did not show any abnormality apart from the scoliosis of the lumbar spine, but the MRI examination in January 2000 revealed a “minimal” disc bulge at L5/S1 and some abnormality of the right knee.
Dr. Curtis thought that the plaintiff had suffered a discal injury to the lower lumbar region of the spine which was permanent and gave rise to some 2.5% impairment of the whole person, and would be managed conservatively. He could not find any abnormality in the left shoulder, and could not account for the symptoms. With regard to the right knee, there was a 2.5% impairment in the right leg which was permanent but he would attribute this to a pre-existing disorder which at most suffered temporary aggravation from the assault. In his opinion the plaintiff would be unable to perform heavy manual labouring tasks, but would be able to perform suitable light work, avoiding activities which would strain the lower spine. Dr. Curtis was overseas at the time of the trial, and his report was admitted without cross-examination.
The plaintiff was seen by Dr. Morgan, an orthopedic surgeon, on 25 June 2000 for the purposes of a report at the request of the defendant’s solicitors: Exhibit 12. The history given to Dr. Morgan was similar to that given in evidence, although there is reference to having lost consciousness for up to five minutes, which is clearly inconsistent with the evidence from the people present. There were complaints of constant lumbar pain at the L4/5 level, the pain being made worse by sitting and standing, bending and twisting. There were problems with the right knee after prolonged walking, and some clicking in the left shoulder with movement, but no left shoulder pain.
On examination the lumbar spine produced a greatly restricted flexion and extension, which Dr. Morgan thought was a product of conscious limitation by the plaintiff. It was much less flexion that that recorded by Dr. Tomlinson, for example (20° compared with 70°), and Dr. Curtis reported 75% flexion. Dr. Morgan did not elicit any clicking from the left shoulder, he thought there was 1.5 centimetres of right quadricep muscle wasting. A number of tests designed to demonstrate inconsistency or overreaction were strongly positive.
Dr. Morgan thought that the MRI of the lumbar spine showed “some very slight asymmetry of a disc posteriorly but no specific evidence of any protrusion and definitely no compromise of any neural elements”: Exhibit 12. Dr. Morgan thought that the condition of the right knee was consistent with the pre-existing problems. There may have been some minor temporary aggravation of the problems with the right knee, and some minor problems in the left shoulder which had apparently settled. Dr. Morgan thought it unlikely that the manoeuvre described would have deranged a previously normal spinal column, and did not think that the changes noted in the MRI were linked to the particular incident. He thought that these changes produced 1-2% loss of overall bodily function. He thought the only restriction on his ability to work was that arising from the right knee joint; the plaintiff did not require any orthopedic attention and should resume a normal outdoor recreational life style.
Under cross-examination (p.53) Dr. Morgan enlarged on the reasons why he did not think that the condition of the disc he saw in the MRI scan, which the other doctors referred to as a bulge, was attributable to this incident: the plain x-rays were normal, and if the force applied was sufficiently great to disrupt a previously normal disc, then he would also have expected to see disruption to the bony end plate and probably the vertebral body, and the mechanism described is one which was unlikely to disrupt a previously normal pristine disc, especially in a spine so young. The changes seen in the x-rays could not be dated to this particular incident (p.52), and they could be physiological changes which occurred progressively with time rather than with trauma: p.53. Had there been a significant injury to the disc at the time, Dr. Morgan would have expected him to require a good deal more in the way of treatment at the time, and he would have expected to see by January 2000 quite significant change to the disc, more than appeared in the MRI scan.
The matter was complicated by the fact there is not necessarily a correlation between symptoms and something which appears on an MRI scan: p.53. A person may have some back problem which is asymptomatic, or a person may have genuine back pain without any detectable abnormality: p.54. Dr. Morgan would not say the plaintiff did not suffer any pain, but he thought it was not linked to the MRI scan finding: p.55. Dr. Morgan thought that the worst the plaintiff could have suffered in such circumstances would be a musculoligamentus strain injury, a soft tissue injury which he would expect to proceed to a complete resolution in someone his age: p.55. He thought it highly unlikely that he would remain symptomatic from one incident in the absence of any objective damage. Dr. Morgan thought the plaintiff’s condition was less severe than he was portraying: p.56. Dr. Morgan also found it suspicious that there was a specific symptom of back pain which had remained unchanged for a period of two or three years, which he regarded as almost unheard of in relation to the lumbar spine: p.57.
The medical evidence therefore is not of great assistance in resolving the question of what happened outside the club. Dr. Tomlinson’s essentially uncritical analysis of the plaintiff is that he has an injury which is consistent with the account given by him, which involves some objectively detectable condition of the spine which is otherwise unusual in a person his age. The condition is also present at about the same level as the abrasion noted by Dr. Dick. Such an abrasion could be caused by falling on one’s back provided that there was some curling up. If a person is being held up and supported round the shoulders and around the legs, then I would expect some sagging in the middle and some of that sag might be preserved during the throw so that the middle hits the ground first. I do not want to speculate about the mechanism of such an incident; it is sufficient to say that it is not something that strikes me as obviously inconsistent with the presence of the abrasion.
On the other hand, there is Dr. Morgan’s opinion that one would not expect such an incident to produce an injury to an otherwise healthy disc without also producing some injury to the bone structure. That is consistent with common experience with circumstances under which disc injuries arise in matters which come to court; they are characteristically associated with some bending or twisting of the spine, or both, apart from the direct application of force. Even the whiplash injury to the neck is associated with movement of the neck relative to the body as a result of the application of force, rather than the direct application of force to the neck. For these reasons the opinions expressed by Dr. Morgan, about the injury not really fitting the mechanism described, appear reasonable. This is not an issue addressed in detail by Dr. Tomlinson, although I think it is fair to say that he did in substance express the opinion that the injury could have been caused in this way.
The difficulty for me is that although the doctors have assumed a version of the mechanism favorable to the plaintiff and have commented on the significance of such an incident in the context of their later examination, I have to resolve an issue about whether such an incident occurred. Dr. Morgan’s opinion was to the effect that a person could have the condition revealed in the MRI without such an incident as the plaintiff described, indeed he thought that would probably be the explanation for it, and that proposition was not contradicted by Dr. Tomlinson. Even the abrasion is not necessarily of any great significance; the plaintiff might have suffered the abrasion any time, for example, when he collapsed after walking some distance along the road away from the club, or even if he fell to the ground in the way described by Mr. Spaul after being released by Mr. Murray at the kerb.
It is also not necessarily very helpful for the plaintiff to point to his evidence that he had a sore back after this incident and it has remained sore ever since. That depends on the reliability of the plaintiff’s evidence; if the plaintiff’s evidence about the symptoms is unreliable, then it is of no particular assistance to me in determining whether he suffered any particular injury, and therefore in determining how it was suffered. Indeed, if he had some unusual pre-existing condition of the disc at this level, it might have become symptomatic as a result of the incident described by Mr. Spaul. Overall, I do not think that the medical evidence is of any real assistance in resolving the question of what actually happened outside the club.
The plaintiff’s credibility
There was a sustained attack on the plaintiff’s credibility in the course of submissions on behalf of the first defendant. He was criticized for his evidence that there were four persons who confronted him in the foyer (p.15) and were involved in the attack (p.17), when it is clear that there were only two persons involved in the confrontation in the foyer. There was however a third person, Mr. Ryan, who was close to them at that time, and the video tape, apart from showing that there was only one security officer and one duty manager outside at the time when the plaintiff was finally removed, shows that there were at least two other club employees present, Mr. Ryan and another male similarly attired, and possibly another person if there was also a bus driver out there. It also follows that I cannot accept the submission that there was not another employee present who would be able to pick up the plaintiff by the legs; there were at least two, either of whom could have done so.
I should also say that I am satisfied on all the evidence the plaintiff was substantially adversely affected by alcohol on that night, indeed was quite drunk, and that would have greatly impaired his ability subsequently to give an account of what occurred with any degree of accuracy. The plaintiff has not given a consistent account of the incident on the various occasions when he has spoken to various people about it, although he has consistently said that he was lifted up by someone else by his legs and then thrown to the ground. Reference was also made to the plaintiff’s lack of frankness about the extent to which he consumed alcohol that night; I think there is some significance in that feature. I accept the plaintiff did tell both Dr. Dick and the police officer that he had consumed half a bottle of bourbon that evening and that is probably the best indication of the actual level of consumption, although I would not treat even that figure as particularly precise.
It was submitted that the plaintiff’s evidence was inconsistent with that of Mr. Hancock and the two young women, but in the light of the video tape it is clear that their evidence in this regard, which puts the plaintiff at the RSL Club earlier in the evening, was incorrect. The plaintiff’s estimates of times have been unreliable at times, but that is not unusual and is probably best explained by the amount of alcohol he had taken. Reference was made to the failure to complain that night to the police, but there was a complaint to the hospital fairly soon afterwards when they arrived there, and it may be that the significance of what had happened to the plaintiff was not immediately apparent to him, possible because the alcohol was masking any back pain he had initially. As well neither he not his mother would have been thinking clearly at that time, because they were drunk.
Reference was made to the absence of any physical injuries to the head or face, which is the consistent evidence of the police officer, the ambulance man, the nurse and the doctor at the hospital. The plaintiff did complain about being punched in the face when he saw Dr. Dick: Exhibit 4. If there had been any visible redness, swelling or bruising, I would have expected Dr. Dick to note it in what is otherwise a fairly thorough note of the incident. The absence of any visible sign of a punch to the face at that stage, or indeed the following morning, suggests either that there was no such punch (or punches) or that any punches were mild ones. The bruise seen by Dr. Mortimer (Exhibit 5) is not in the right place.
Various people who saw the plaintiff after the incident did not think there was anything much wrong with him. That is consistent with his not having suffered a significant injury to his back at that stage, although the matter may be complicated by the effect of alcohol on him. That could well have been masking the pain to some extend and subsequently reducing the extent to which he was responding rationally to such pain as he had. For that reason I am a little cautious about the assessment of various people that the plaintiff appeared to be uninjured in the period after the accident, at least so far as back injury is concerned. I think the principle feature governing the plaintiff’s appearance and behaviour in that period was the effect of the alcohol he had taken, both in terms of masking symptoms and in producing unreasonable, indeed aggressive and abusive, behaviour, which may well have made it more difficult to detect any indication of back injury which might otherwise have been present. In addition, the various people would have been distracted by the behaviour of his mother. All of these factors justify treating with caution the evidence that there was no apparent injury to his back at that time.
On the whole I prefer Dr. Morgan’s approach, although it does not necessarily follow that the plaintiff has nothing wrong with his back attributable to this incident. I reject the proposition that the plaintiff simply went from a normal healthy back to one which had a disc bulge causing a permanent disability of the order of 10%, or even 2½%, of the whole person. I am also cautious about the extent to which the back is continuing to be a real problem for the plaintiff. He was able to work for some time as a steward at Hyatt Coolum, admittedly not full time, and he left not because of back pain but because there was too much traveling involved. There is also the consideration that I am not prepared to accept the plaintiff’s evidence generally, and I am wary of his evidence of continuing unchanging pain.
In these circumstances, in my opinion, I should be quite moderate in the assessment of damages, particularly in relation to the future. It follows from Dr. Morgan’s evidence that the plaintiff may have had back problems anyway. I am not persuaded that his back is as bad as he says it is. I am not persuaded that he suffered any permanent injury to his back on this occasion, or that his pain has ever been more than mild or occasionally moderate.
Both Dr. Curtis and Dr. Morgan are of the view that the plaintiff suffered no more than temporary aggravation to the pre-existing condition of the right knee, the effect of which has dissipated. The circumstance that the plaintiff has had some problems with the right knee means that he would have been unsuited to heavy labouring work anyway. That is a relevant consideration in relation to economic loss. The plaintiff had some initial problems with the shoulder but they cleared up fairly rapidly. Although there have at times been some complaints of headaches, there were none when he saw Dr. Mortimer on 7 April: Exhibit 5. I am not persuaded that the plaintiff suffered any headaches as a result of this incident, nor do I accept that he had any particular problems with his face or neck. There is no evidence that the abrasion to the back was other than superficial and temporary.
In all the circumstances I assess general damages in the sum of $7,000, of which I attribute $5,000 to the past. That part will carry interest of 2% per annum for three and one third years.
Special damages in respect of pharmaceuticals and travelling expenses were admitted (as to quantum) in the sum of $325: p.284. I will allow interest at 4% on the figure of $325 for 3 years. Apart from that, a claim was made for past medical expenses in respect to certain amounts set out in Exhibit 11. A list of these is provided in the written submissions on behalf of the plaintiff and in the light of the contents of Exhibit 5, I am prepared to accept that the amounts claimed in respect of Dr. Paton, Dr. Chong Wah and those amounts in respect of Dr. Mortimer for 7 April, 3 June and 8 September 1998 are recoverable. Exhibit 5 indicates that the x- ray on 14 December 1988 was associated with another incident, so the amount claimed for Dr. Marginson is not recoverable. The amount claimed for Dr. Mortimer of 31 March 1988 is not recoverable as this was prior to the incident, Dr. Mortimer’s attendances on 25 September and 1 and 8 October 1988 were related to tonsillitis, and the records do not reveal an attendance on Dr. Mortimer on 8 December 1998. The amount recoverable for medical expenses therefore is $192.20.
A claim was made for aggravated and exemplary damages on the ground the plaintiff felt frightened at the time, was shamed and humiliated (p.38) by what had happened to him, and that he was embarrassed (p.96) by the fact that the incident had occurred in front of the RSL Club were guests were watching. I am not prepared to accept the plaintiff’s evidence that he was ashamed, humiliated or embarrassed at the time, in view of his drunken state and his aggressive, offensive behaviour prior to the incident. I do not accept that he would have felt anything other than discomfiture and some degree of frustration at having come out the worst from the short exchange. I do not consider that it is appropriate in the circumstances of this case, and in light of the plaintiff’s behaviour, to award aggravated damages. I also do not consider that this is an appropriate case for the award of exemplary damages. The plaintiff’s behaviour is a relevant consideration here, and amply justified the use of reasonable force. The fact that the defendant’s employees went too far does not justify an award of exemplary damages. In addition, there is authority that exemplary damages are not awarded against a defendant employer who is only vicariously liable: Kirkwood v. Bishop (Plaint 4695/88, Robin DCJ, 6.2.92, unreported). Exemplary damages are therefore not appropriate.
There would have been a period after early April 1998 when the plaintiff would have been deterred from seeking employment by the immediate effects of his injuries, but obviously that period had expired by the time he attained the position at Coolum, and it would not be appropriate, in the light of his employment history at other times, to assume that but for this accident he would have been in employment for the whole of this period. He has lost the chance that he would have otherwise have obtained some employment during this period, which in the light of his employment history generally is appropriately quantified in a modest amount. Apart from that, to the extent that there were some lingering symptoms properly attributable to the injury, it is very difficult to see how these have in practice adversely affected the plaintiff’s employment.
Since the incident he has had much the same sort of jobs as he had before the incident, and if anything his employment history has improved. Some very small global allowance should be made for the possibility that the plaintiff may have been deterred from attempting to obtain other employment because of concerns about the effect of that employment on his back or the aggravated condition of the knee, but I am not persuaded that the evidence justifies anything more than that by way of past economic loss. Given that the plaintiff would not have been doing heavy work anyway in the future because of the problem with his right knee, and in the light of his employment history generally, and as I am not persuaded that the plaintiff suffered any permanent injury, it is not appropriate to make any allowance for future economic loss. The amount I will allow for past loss is $2,500, which will not carry interest because at all relevant times the plaintiff was in receipt of Social Service benefits: Exhibit 9.
Summary
Assessment of damages is therefore summarized as follows:
A: Damages for pain, suffering and loss of amenities $7,000.00 B: Interest on $5,000 at 2% for 3 1/3 years $ 333.00 C: Past economic loss $2,500.00 D: Special Damages $ 517.00 E: Interest on $325 at 8% for 3 years $ 78.00
Total: $10,428.00
There will therefore be judgment that the defendant pay the plaintiff $10,428 which includes $411 by way of interest. I will circulate these reasons and hear submissions in relation to costs.
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