T. Wagstaff v Haslam

[2006] NSWSC 294

CITATION:	T. Wagstaff v Haslam & Anor [2006] NSWSC 294
HEARING DATE(S):	13-15, 20-23 February, 6-7 March 2006
JUDGMENT DATE :	21 April 2006
JURISDICTION:	Common Law
JUDGMENT OF:	Studdert J
DECISION:	Verdict and judgment for the plaintiff in the sum of $227,598. Costs reserved
LEGISLATION CITED:	Civil Liability Act 2002 Factories Shops and Industries Act Liquor Act 1982 Liquor Ordinance 1975 (ACT)
CASES CITED:	Abela v Giew (1965) 65 SR (NSW) 485 Chapman v Hearse (1961) 106 CLR 112 Chordas v Bryant (Wellington) Pty Limited (1988) 28 FCR 91 Gee v NWQ Management Pty Limited [2002] NSWCA 77 Lanahmede Pty Limited v Koch [2004] SASC 204 Malec v J.C. Hutton Pty Limited (1990) 169 CLR 638 Modbury Triangle Shopping Centre Pty Limited v Anzil (2000) 205 CLR 254 Oxlade v Gosbridge Pty Limited (unreported, NSWCA, 18 December 1998) The Proprietors of Strata Plan 17226 & Anor v Drakulic (2002) 55 NSWLR 659 Pyrenees Shire Council v Day (1998) 192 CLR 330 Sovar v Henry Lane Pty Limited (1967) 116 CLR 397 Starks v RSM Security Pty Limited (2004) ATP 81-763 TAB Limited v Atlis [2004] NSWCA 322 Wagstaff v Haslam & Anor [2006] NSWSC 295
PARTIES:	Teresa Anne Wagstaff (Plaintiff) Anthony James Haslam (1st Defendant) D & D Haslam Pty Limited (2nd Defendant)
FILE NUMBER(S):	SC 20218/04
COUNSEL:	R.W. Seton SC/J. Reimer (Plaintiff) G. Parker (Defendants)
SOLICITORS:	Walsh & Associates (Plaintiff) Ebsworth & Ebsworth (Defendants)
LOWER COURT DATE OF DECISION:	02/13/2006

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

STUDDERT J

Friday 21 April 2006

20218/04 TERESA ANNE WAGSTAFF v ANTHONY JAMES HASLAM & ANOR

JUDGMENT

1 HIS HONOUR: Teresa Anne Wagstaff is claiming damages from the first defendant, Anthony James Haslam, and from the second defendant, D. & D. Haslam Pty Limited, arising out of events at the Greenhouse Tavern on 3 May 2000. The plaintiff visited the Greenhouse Tavern on the evening of 3 May 2000 to have a drink with her husband after work. The plaintiff’s husband, who also brings a claim against the defendants, became involved in an altercation in the tavern, and was assaulted. It is the plaintiff Teresa Wagstaff’s case that she went to her husband’s aid, and in consequence of what happened suffered injury, both physical and mental.

2 Liability has been strenuously contested, and additionally there has been a very real contest about the nature and extent of any injury the plaintiff suffered.

3 The first defendant has been sued as the licensee of the Greenhouse Tavern and the second defendant has been sued as the occupier of the tavern. The status of the defendants has been admitted for the purposes of these proceedings and also for the proceedings brought by the plaintiff’s husband.

The incident at the tavern

4 The plaintiff and her husband were regular patrons of the Greenhouse Tavern. It was an establishment conveniently located in relation to where the plaintiff and her husband lived. As at May 2000 the plaintiff’s husband was conducting a takeaway chicken shop business nearby and worked long hours in it. This plaintiff assisted her husband for several hours per day in the chicken shop business. The arrangement on the evening in question was that the two should meet at the tavern at approximately 9.00 pm.

5 Mrs Wagstaff gave evidence that she arrived at the tavern at about 9.05 pm and went to the poker machine section in the sports bar, an area the location of which is shown on a sketch plan, Exhibit E. She said that she sat there to await her husband’s arrival. When Mr Wagstaff arrived, he purchased a drink for himself and his wife and took the drinks to her. When he met with his wife, Mr Wagstaff was laughing, and he informed his wife that it was “a boys’ joke” which he had been sharing. After the drinks were finished, Mr Wagstaff went to the main bar to buy another drink and whilst he was away Mrs Wagstaff changed positions to reach another poker machine which she intended to play. There she noticed that there were three men to her right playing another poker machine. Her husband came back to her with the second round of drinks. He took up a position behind the plaintiff and then she heard somebody say, “Get fucked” in an angry voice. The plaintiff stood up and went to a point beside her husband and observed one of the three men, a man with a red face and red hair who continued to swear at her husband. She noticed he had bloodshot eyes and that he was slurring his speech.

6 Mrs Wagstaff spoke to her husband, saying “He is just drunk, Gerry, let’s go home”. Her husband responded to the man with the red hair, “I didn’t mean it, mate. I am sorry. I am sorry, it was a joke.” As he spoke, Mr Wagstaff had his hands up, with palms open.

7 The red haired man was within arm’s length of her husband. He called Mrs Wagstaff “a fucking bitch”, and said to her “I’m not drunk”. He then smashed a glass and held it to Mrs Wagstaff’s face and to her husband’s face, calling them both “fuckwits”.

8 The barman approached and tried to get the broken glass from the red headed man, who said, “I can pick up my own fucking broken glass”. The barman took the glass from this man and took it to the bar counter and then returned to where the plaintiff and her husband and the red headed man were.

9 Eventually, after the red haired man continued his abuse, Mrs Wagstaff heard her husband say, “Piss off, you are drunk”, and Mr Wagstaff then turned to leave. One of the two companions of the red headed man, and this companion had blond hair, thereupon approached Mr Wagstaff and punched him across the head, knocking him to the ground. Mrs Wagstaff said she went running for help.

10 There were two barmaids behind the bar. They informed her there was nobody else there. Mrs Wagstaff said she asked others for help, but it was not forthcoming. When she returned to her husband, the barman, Jay, was pulling the blond headed man off her husband. The third man, who had been at the poker machines with the red headed man and the blond man, pulled Mr Wagstaff up, having put a headlock on him, pushing his neck forward.

11 At this stage there was a brief lull in proceedings and Mrs Wagstaff heard her husband say, “Let me go, let me go, I am not fighting, I am not fighting.” Jay released the blond headed man who approached Mr Wagstaff and whilst he was still held punched him in the stomach. Mr Wagstaff’s captor released him and the blond headed man grabbed Mr Wagstaff by his ponytail, swung him around and back onto the floor. Two other men jumped on top of Mr Wagstaff.

12 According to Mrs Wagstaff, she feared that her husband was going to die. He was on the ground with his hands behind his back, his ponytail was being twisted and his head with it, and there were the other men, as well as the blond, on top of her husband. According to Mrs Wagstaff, fearing for her husband’s wellbeing, she approached the blond headed man and kicked him hard in the buttocks on six occasions and once in the testicles. In the course of doing so, Mrs Wagstaff put her foot through the front of her shoe.

13 What Mrs Wagstaff did was effective to secure her husband’s release from the blond headed man, who stood up seeking to find out who had kicked him. He punched a bystander but was then told that it was Mrs Wagstaff who had kicked him and he started to pursue her. Mrs Wagstaff ran to the ladies’ toilet and sought refuge inside, placing her back up against the door and her feet on the toilet bowl. There the plaintiff remained until one of the barmaids came into the toilet area to tell her that it was safe to come out.

14 When Mrs Wagstaff came out, she saw that the police had arrived. She noticed that her husband had blood dripping from his face and a cut on his forehead.

15 I accept that the account given by Mrs Wagstaff as above reviewed was a truthful account and I accept that it is a reasonably accurate account of what happened.

16 Mr Wagstaff gave an account broadly consistent with that of his wife and I accept also that his account was an account honestly given. I do not propose to review the detail of his account but where it added to his wife’s account, I refer to it. He said that his first noticed the group of three men, including the blond headed man, the red headed man and the third older man who later put the headlock on him, when he was bringing the first drink across to his wife. He overhead one of the men saying something he considered to be “a bit outrageous”. He said in passing to one of them, “That sounded a bit sus, I wonder what’s going on there.” Later, when he was returning with the second drink for his wife, he again spoke to the three men, inviting them to tell him the joke. It was this second intervention by Mr Wagstaff which led to the behaviour of the red headed man in swearing at him, breaking the glass and then holding it in front of him. Thereafter, Mr Wagstaff’s account of what occurred is consistent with that of his wife. Ultimately, when he was unable to placate the red headed man, Mr Wagstaff decided to leave and said to the red headed man: “Fuck off, idiot, you’re pissed.” When he said this, Mr Wagstaff put his hand to his nose and made a gesture. This conduct by Mr Wagstaff was immediately followed by the attack upon him by the blond headed man.

17 Mr Wagstaff, when he was last released, heard the blond headed man asking bystanders “Who laid the boot in?”, and then saw the blond man pursuing his wife, but he was arrested in that pursuit by a patron.

18 Later, upon the arrival of the police, he saw the police speaking to the blond headed man outside the hotel, and Mr Wagstaff told the police he wanted the blond headed man charged.

19 The bar manager, Jay Hislop, was not called, but upon being satisfied that he was not available, I admitted into evidence the statement he made to the police. That statement bears dated 12 June 2000 and, omitting formal parts, reads:

“2. I am 27 years of age.
3. I am presently employed as a bar manager. I work at the licensed premises known as the Greenhouse Tavern, Coffs Harbour. I have been working at the Tavern for about 16 months, however I have been working in the industry for about 10 years.
4. About 9pm, Wednesday 3 May 2000, I was working at the Tavern. There [were] about 20 people in the main bar area. A number of these person[s] were consuming drinks, playing the poker machines and talking. Two males, one being 5’2 had a pony tail and the other taller, 5’10 short hair. They had been in the Tavern since early afternoon consuming beer then later on they had scotches.
5. The bloke with the short hair was buying drinks for the other bloke and himself. They were in the pool room when I went in to clean up. From my observations, I saw that they had [had] enough to drink. [A] Short time later, the bloke with the short hair came to the bar to buy another round. I informed [him] that this was [their] last drinks because [of] [their] actions in the pool room. I formed the opinion that they were moderately [a]ffected by alcohol.
6. After they had grabbed [their] drinks, they went into the poker machine area where they met up with a third person who was playing the poker machines.
7. I was behind the bar when I heard a glass smash. I left the bar and went to the poker machine area. When I got there, I saw two people I know, Gerry and Therese [sic] and the two blokes. I started to pick up the glass from the ground. The bloke with the pony-tail had picked up the main piece of the broken glass. I said, ‘I’ll take that for you.’ He said, ‘Don’t you think I’m fucking capable to do it myself.’ The male wouldn’t give the glass to me.
8. Gerry and the pony-tail bloke were having words. I convinced the bloke to give me the glass. I didn’t see [it] to be a full on argument at this point of time, so I left the area and went and put the glass on the bar, which was about 5 metres away. I returned straight away.
9. I said to both Gerry and the pony tail bloke, ‘Calm down. What’s the problem?’ They wouldn’t listen, they were still arguing with each other. Therese [sic] was saying to Gerry, ‘Lets go.’ Gerry has turned away and started to walk to the far end of the poker machine area. The pony-tail bloke was still mouthing off, taunting Gerry. Gerry turned around and put his finger to his nose and said in jest, ‘Fuck off idiot’, turned and walked away.
10. The short hair guy who was standing on the left hand side Gerry, has run at Gerry and swung a punch, like a hay bailer missing Gerry’s head. The punched missed but he tackled Gerry to the ground. The blonde hair bloke started to punch Gerry about the head. Gerry was trying to get up, pushing the bloke but he couldn’t get up.
11. The third guy who was playing the poker machines, had grab[bed] Gerry by both arms, pulling them back so Gerry couldn’t defend himself. The short haired guy was still punching Gerry. I had grabbed the short hair bloke in the same way, by grabbing his arms and pulling them back so he couldn’t hit Gerry.
12. They started to calm down. Gerry was still trying to break free, he [was] saying ‘Let me go, I don’t want to fight.’ Gerry had calmed right down. The bloke I was holding said, ‘Its ok, ok.’ so I let him go. Gerry said to the bloke, ‘Why did you do that, I wasn’t talking to you?’ The bloke with the pony-tail was winding his mate back up, taunting Gerry and calling Therese [sic], ‘That fucking bitch started it.’
13. By this time, a couple of the locals had come around and backed me up. The short haired guy grabbed Gerry’s pony-tail, when I yelled out to a staff member ‘Call the Police’. The short haired bloke has pulled Gerry down on to the ground and started to punch him about the face with closed fists. I saw him hit Gerry a number of times. Gerry[’s] face was looking at the floor, and the short hair bloke was power punching him.
14. I placed my left foot near his right elbow to stop him from punching Gerry. I said to the bloke, ‘Stop it now.’ I said this several times. The bloke playing the poker machines had joined in trying to separate the two. A couple of the locals were also trying to break it up.
15. A short time after this, the short haired bloke was pulled off Gerry. He stood up and said, ‘Who was laying the fucking boot in?’ He kept repeating this over and over again. He turned to one of the locals, …who had pulled him off Gerry and punched him with a closed fist to the face. …has grabbed him around the throat with one hand and said, ‘Calm down. It wasn’t me.’
16. …and the short haired bloke had a scuffle near the poker machines. One of the locals, …came over to me and asked me who I wanted out. I told him all of them. He helped me to move the pony-tail and the short hair bloke to the front door.
17. I said to these blokes, ‘Don’t come back in.’ The two blokes stayed outside mouthing off. A short time later, the police arrived and I spoke to them about what had happened.”

20 The only other evidence bearing on the issue of liability came from two patrons in the hotel called in the case for the defendants.

21 Robert Wear attended the tavern on 3 May 2000 with his friend, John Gett. Mr Wear said that he arrived there between 6.30 pm and 7.00 pm. He and John Gett were sitting drinking beside the poker machine room. He said that at about nine o’clock he was walking back from the bar and he noticed a scuffle on the ground involving “a couple of blokes and a lady”. One of the bar managers came over and he said he and some other person separated the two men who were wrestling on the ground. In his assessment the whole episode was over very quickly. He said the police came “and that was the end of it”. Mr Wear had not heard any yelling or swearing before he first saw the men on the ground.

22 John Gett recalls that he was sitting at a table with Mr Wear and this was between the bar and the entrance to the poker machine area. His recollection was that his attention was first attracted to the altercation when one of the barmaids said, “Where’s Jay? There’s a fight.” He said that he got up and walked over and pushed the men apart. His recollection was that there were four people involved in the fight:

“There was one guy on the ground. The other guys were just in a bit of a huddle. I didn’t see any punches thrown or anything like. Just push and shove.”

23 Mr Gett said he did not know what Jay did, but he also said that Jay “just sort of pushed them apart too”. He said the police arrived no more than five minutes after the barmaid first attracted his attention to the altercation.

24 Accepting as I do the evidence given by the plaintiff and her husband, it is apparent that neither Mr Wear nor Mr Gett saw what was happening from the outset and whilst I do not doubt the truthfulness of either of these two witnesses, I do not find their evidence of real assistance. It is plain that neither of these men heard or saw what led up to the assault upon Mr Wagstaff, and neither man had either a clear or a complete recollection of the incident.

25 Mrs Wagstaff said that from the time the red headed man started to abuse her husband until her husband turned to leave and was attacked by the blond headed man, a period of less than ten minutes but more than five minutes elapsed (T 38). Later (at T 93), Mrs Wagstaff said that the period was “at least five to seven minutes”. There was an interval of one minute, according to Mrs Wagstaff (T 45), during which Mr Hislop was holding the blond man and Mr Wagstaff was being held by the third man before the blond man was released and proceeded to punch Mr Wagstaff.

26 Mr Wagstaff said that it seemed like fifteen minutes but that in reality it was somewhere between five and ten minutes between the time that the red headed man first swore at him and the time that Mr Wagstaff made the gesture and turned his back immediately before the blond headed man first punched him (T 156). Mr Wagstaff repeated that estimate of a time lapse of five to ten minutes in cross examination (T 311). Mr Wagstaff’s estimate was that the first assault took about five minutes; there was then a period of separation of about three to four minutes; and then there was the second attack (T 316).

27 Neither Mrs Wagstaff nor her husband could be expected to be precise about the estimates of time that they gave and which I have reviewed above, but their estimates are consistent the one with the other and I find on balance that from the time that the red headed man first abused Mr Wagstaff to the time that the incident was over in its entirety a period of approximately fifteen minutes elapsed.

The issue of liability

28 It is necessary to determine whether the defendants owed to the plaintiff a duty of care in the circumstances of this case, and, if so, whether there was a breach of such duty as was owed resulting in harm to the plaintiff.

29 Mr Parker relied upon Modbury Triangle Shopping Centre Pty Limited v Anzil (2000) 205 CLR 254 as support for the submission he advanced that the licensee and occupier of licensed premises do not owe a general duty of care to prevent persons upon the premises suffering harm as a result of the criminal conduct of other patrons. In Modbury, an employee of a tenant of a shop in a shopping complex was attacked by criminals when he was walking to his car in the complex carpark after the floodlights illuminating it had been turned off. In that case, it was held on appeal to the High Court that the occupier’s duty did not extend to take reasonable care to prevent injury to the injured employee such as resulted from the criminal behaviour of his assailants. No such duty arose absent some special relationship.

30 However, Modbury leaves open the possibility of liability in an occupier of premises who fails to control access to or continued presence upon premises. In his judgment Hayne J said (at [111]-[112]:

“[111] In those cases where a duty to control the conduct of a third party has been held to exist, the party who owed the duty has had power to assert control over that third party. A gaoler may owe a prisoner a duty to take reasonable care to prevent assault by fellow prisoners. If that is so, it is because the gaoler can assert authority over those other prisoners (cf Howard v Jarvis (1958) 98 CLR 177; Hall v Whatmore [1961] VR 225). Similarly, a parent may be liable to another for the misconduct of a child because the parent is expected to be able to control the child (Smith v Leurs (1945) 70 CLR 256 at 262, per Dixon J.).
[112] The occupier of land has power to control who enters and remains on the land and has power to control the state or condition of the land. It is these powers of control which establish the relationship between occupier and entrant "which of itself suffices to give rise to a duty ... to take reasonable care to avoid a foreseeable risk of injury" (Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488, per Mason, Wilson, Deane and Dawson JJ.) to the entrant. It is the existence of these powers which lies behind both the particular conclusion in Hargrave v Goldman ((1963) 110 CLR 40; affirmed on appeal Goldman v Hargrave (1966) 115 CLR 458; [1967] 1 AC 645) that occupiers of land owe a duty to take reasonable care in respect of fire or other hazards originating on the land and general statements, of the kind made by Lord Nicholls of Birkenhead in his dissenting speech in Stovin v Wise ([1996] AC 923 at 931), that ‘[t]he right to occupy can reasonably be regarded as carrying obligations as well as rights’.”

31 And, later, his Honour said at [117]:

“[117] Established principle provides the answer to the present problem because it reveals that there is no duty to control the criminal conduct of others except in very restricted circumstances. Being an occupier of land should not be added to those exceptional cases, at least where the complaint that is made by the plaintiff is not about the occupier failing to control access to or continued presence on the premises (cf Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91; Public Transport Corporation v Sartori [1997] 1 VR 168). I would wish to reserve for consideration in a case in which they are raised the questions that are presented by a complaint of that last kind.”

32 Reference was made by Hayne J (at [117]) to Chordas v Bryant (Wellington) Pty Limited (1988) 28 FCR 91, a case in which Davies, Kelly and Neaves JJ recognised a duty in the manager of an hotel to take reasonable care for his patrons. Their Honours said (at p 99):

“If cause is shown which requires that a patron be closely supervised or ejected or that another patron be warned, the manager should take whatever be the appropriate step in the interests of the safety of his patrons.”

33 In The Proprietors of Strata Plan 17226 & Anor v Drakulic (2002) 55 NSWLR 659 at [65], Heydon JA referred to the judgment of Hayne J as identifying a possible category of liability in an occupier (see Heydon JA’s judgment in particular at [65]).

34 In Oxlade v Gosbridge Pty Limited (unreported, NSWCA, 18 December 1998) the Court of Appeal, by majority, ruled that an hotelier owed a duty to protect a hotel patron in the carpark adjacent to the hotel at closing time. This case, of course, was decided before Modbury but Mason P, with whom Shepherd AJA agreed, referred to the imposition of a duty of care on the manager of an hotel in this passage (at p 2):

“It is exceptional for the law to impose a duty to exercise care in controlling a third party to prevent the third party doing damage to another (see generally Smith v Leurs (1945) 70 CLR 256). But a duty to exercise reasonable care to protect patrons has been imposed upon the manager of a hotel as regards intoxicated or dangerous customers. Whatever the outer limits of such duty, it encompasses the protection of a patron while he or she is on or departing from the licensed premises (see Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91).”

35 In TAB Limited v Atlis [2004] NSWCA 322 it was held that the manager of a TAB agency owed a duty of care to take reasonable steps to prevent injury to TAB patrons from the activities of two entrants who were visibly affected by alcohol and who were rowdy and offensive. Ipp JA, with whom Beazley JA agreed, considered that the facts fell squarely within the possible exception to the rule referred to by Hayne JA in Modbury: see the judgment of Ipp JA at [36]-[37]. Ipp JA went on to say at [39]-[40]:

“39 Foreseeability of harm is an important factor in this context. It is very much to the point that, by the time Mr Youngman spoke to the two men, he realised that their activities on the claimants’ premises constituted a risk of injury to the other patrons.
40 In my view, the circumstances were such as to give rise to the imposition of a duty on the claimants to take reasonable steps to prevent injury to the TAB patrons from the activities of the two men. This conclusion is simply the product of the concept of reasonableness: see Tame v State of New South Wales (2002) 211 CLR 317 per Gleeson CJ at 330, [8].”

36 In Lanahmede Pty Limited v Koch [2004] SASC 204 it was considered that the occupier and operator of the hotel in which a patron was injured owed a duty "to protect patrons from offensive and disorderly conduct and to maintain adequate practices to deal with any incident arising by reason of intoxication or offensive or disorderly behaviour" (the judgment of Grey J (at [34]), with whom the other members of the court agreed). Hence, a patron assisting in the removal of an intoxicated and unruly patron was found to be owed a duty of care by the hotel occupier. Bleby J said as to the existence of the duty (at [2]):

"There can be no doubt that Lanahmede was under a common law duty of care to its patrons. The content of that duty of care must be informed by the fact that patrons will, from time to time, become affected by liquor and may become subject to aggressive, disorderly or offensive behaviour. The duty extends to taking steps to ensure that reasonable precautions are taken to ensure the safety from physical harm of those who may become so affected, as well as those who may be affected by such conduct of others."

37 The Liquor Act 1982 (NSW) imposes responsibilities upon a licensee which call for consideration in this case. Section 2A of the Liquor Act expresses as a primary object of the statute

“Liquor harm minimisation, that is, the minimisation of harm associated with misuse and abuse of alcohol (such as harm arising from violence and other antisocial behaviour)”.

38 Section 103 of the Liquor Act provides:

"(1) A licensee or his employee may…turn out, or cause to be turned out of the licensed premises any person:
(a) who is then intoxicated…
(3A) For the purposes of subsection (1)…such reasonable degree of force as may be necessary may be used to turn a person out of licensed premises.
(4) Where a member of the police force is requested by a licensee to turn out, or assist in turning out, of the licensed premises a person whom the licensee is entitled under subsection (1)…to turn out of the premises, it is the duty of the member of the police force to comply with the request and he or she may, for that purpose, use such reasonable degree of force as may be necessary."

39 In his submissions directed at s 103, Mr Parker submitted that the section created no duty, but only the power for a licensee or his employee "to turn out or cause to be turned out". He cited Starks v RSM Security Pty Limited (2004) ATP 81-763 in support of this submission. Starks was a case in which a patron sued the owner and the licensee of a hotel as well as the company which provided a security officer. The patron was assaulted by the security officer. The case is not directly in point, but Beazley JA, with whom the other members of the court agreed, said as to s 103 of the Liquor Act (at [41]):

"Section 103…not only aids the licensee in the performance of its obligations in the control of licensed premises, it authorises action that might otherwise be unlawful, such as the forceful ejection of an intoxicated person from the premises."

40 Clearly, that is the effect of s 103, but I consider that the existence of the section is by no means irrelevant in considering whether there existed a duty of care towards the plaintiff in the present case, and the further issue as to whether there was a breach of duty.

41 Mr Parker also referred to Gee v NWQ Management Pty Limited [2002] NSWCA 77, another case in which a plaintiff sued for injuries sustained when he was forcibly removed from a hotel. Mr Parker cited this case for the proposition that the effect of s 101 and of s 103 of the Liquor Act was to impose a non delegable duty for the purposes of the Liquor Act, but not for the purpose of the law of tort. In his judgment in Gee, Mason P said as much (at [15]):

"The other point concerns the argument based on ss 101 and 103 of the Liquor Act 1982. It is true that those provisions do impose on the licensee statutory obligations controlling how he or she is to administer the premises and making it plain that those obligations are non-delegable for the purposes of the Liquor Act . But I do not think it follows that they are non-delegable for the purposes of the law of tort."

42 However, it by no means follows from the decision in this case that s 103 can assume no relevance when considering the issue of the existence of a duty of care and the further issue of the breach of a duty care in a particular case. Indeed, the President's remarks indicate otherwise.

43 I move on to s 125 of the Liquor Act.

44 Section 125 of the Liquor Act provides:

“(1) A licensee shall not…
(b) permit intoxication or any indecent violent or quarrelsome conduct on his or her licensed premises.”

45 Section 125(3) provides:

“A person (whether or not he or she is the licensee) shall not, on licensed premises, sell or supply liquor to any person who is at the time in a state of intoxication.”

46 Section 125(4) is in these terms:

“Where a person is intoxicated on licensed premises, the licensee shall be deemed to have permitted intoxication on the licensed premises unless the licensee proves that the licensee and his or her employees took the steps set out in subsection (4A) or all other reasonable steps to prevent intoxication on the licensed premises.”

47 Section 125 (4A) provides:

“For the purposes of subsection (4), the following are the relevant steps:
[that the licensee]
(a) asked the intoxicated person to leave the premises,
(b) contacted, or attempted to contact, a police officer for assistance in removing the person from the premises,
(c) refused to serve the person any alcohol after becoming aware that the person was intoxicated.”

48 It has been submitted that s 125(1)(b) of the Liquor Act gives rise to a statutory cause of action.

49 The considerations relevant to the determination of whether or not a statutory provision gives rise to a cause of action by a person injured were considered by Kitto J in Sovar v Henry Lane Pty Limited (1967) 116 CLR 397. Sovar concerns s 27 of the Factories Shops and Industries Act (NSW), a provision which, along with many other provisions of that statute, has been held to give rise to private causes of action. Kitto J identified relevant considerations (at p 405) as including

“the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law and, generally, the whole range of circumstances relevant upon a question of statutory interpretation.”

50 When consideration is given to the nature, scope and terms of the Liquor Act, in my opinion the conclusion is not justified that the legislature intended to create in s 125 the source of a private cause of action in a person injured by an intoxicated, violent or quarrelsome patron. Section 125 exposes a licensee to liability for a penalty for breach of the section and this, whilst not necessarily determinative, nevertheless supports the conclusion that the section is aimed at general public interest considerations.

51 Counsel have been unable to refer to any authority directly in point, but in Chordas (supra) the Federal Court determined that s 79 of the Liquor Ordinance 1975 (ACT) did not confer a private cause of action upon its breach. That section made it an offence for a licensee to provide liquor to a person concerning whom there were reasonable grounds for believing he was intoxicated.

52 In rejecting the submission that s 79 gave rise to a private right of action, the court, constituted by Davies, Kelly and Neaves JJ said at 102:

“Section 79 appears in an Ordinance which is intended to protect the public interest by regulating the sale of intoxicating liquor, so as to protect those who by over- indulgence or because of youth or mental ill health are at risk from its abuse: see Commissioners of Police v Cartman [1896] 1 QB 655 at 657; Cundy v Le Cocq (1884) 13 QBD 207 at 209 and Luff v Oakley (1986) 82 FLR 91 at 101.
Certainly, a breach of the statute may be used as evidence of a breach of the common law duty of care owed by the hotelkeeper to his patrons: see, for example, Menow v Honsberger (1969) 7 DLR (3d) 494, affirmed on appeal in Jordan House Ltd v Menow (1973) 38 DLR (3d) 105.
However, in Abela v Giew (1965) 65 SR (NSW) 485, it was held that a breach of like regulations, those made under the Motor Traffic Act 1909 (NSW), did not confer any private right of action upon persons injured by reason of a breach thereof. For similar reasons, s 79 does not confer a private right of action for damages resulting from its breach. Section 79 was enacted in the general public interest, not for the protection of persons who may be injured by the conduct of intoxicated persons.”

53 As I see it, similar considerations apply to s 125 and I conclude that it gives rise to no statutory cause of action against the licensee for a patron injured by another patron who behaves violently when intoxicated.

54 It does not follow, however, that the provisions of s 125 are necessarily irrelevant in this case. It seems to me that a breach of a statute may be relevant in an appropriate case as affording evidence of a breach of common law duty, where such duty is held to exist: see Chordas (supra) and Abela v Giew (1965) 65 SR (NSW) 485 at 489. Moreover, the existence of a statutory power can be relevant to a determination as to the existence of a duty of care, such as a duty to control others. Mr Seton submitted that Pyrenees Shire Council v Day (1998) 192 CLR 330 is illustrative of this. The Court was referred to the judgments of Toohey J and Gummow and Kirby JJ.

55 I have come to the conclusion that the defendants did owe to the plaintiff a duty to exercise reasonable care for her safety whilst the plaintiff remained lawfully on the hotel premises during its trading hours. I so conclude having regard to the power which the defendants had to control those who entered upon the hotel premises and to determine who should remain upon the hotel premises. In this regard the statutory powers and obligations of the first defendant as licensee under s 103 and s 125 of the Liquor Act assume some significance. I consider that the defendants owed the plaintiff a duty such as extended to take reasonable measures to safeguard the plaintiff from foreseeable risk of harm from the conduct of intoxicated or unruly patrons on the hotel premises.

56 Were the circumstances such as to give rise to the imposition of a duty on the defendants to take reasonable care to prevent injury to the plaintiff and her husband from the activities of those men who became involved in the altercation with the plaintiff’s husband? It has been submitted on the plaintiff’s behalf that the defendants were negligent in the following respects:

(i) in continuing to serve drinks to the red headed man, the blond headed man and the other patron with them after they had been involved in an earlier incident and at a time when they were affected by intoxicating liquor;

(ii) in failing to have adequate security personnel on duty at the tavern;

(iii) in failing to require the three men to leave at the very latest after the red headed man broke the glass and held it towards the plaintiff and her husband;

(iv) in contravening s 125 of the Liquor Act .

57 Even if the section does not give rise to a statutory cause of action, it is submitted on the plaintiff’s behalf that contravention of the section affords evidence of negligence. It has not been contended that the second defendant is not vicariously liable for the negligence of the first defendant as the licensee of the second defendant’s hotel.

58 The evidence satisfies me on the balance of probabilities that the red headed man and the blond headed man were served drinks when intoxicated.

59 Mrs Wagstaff first noticed the three men when the red headed man started swearing (T 51). She then observed that man to have bloodshot eyes and to be slurring his words. She also noticed that he was staggering (T 51).

60 Mr Wagstaff considered that, at the time of the incident, the blond headed man and the red headed man were well affected by alcohol (T 323). He said they were unstable on their feet and their voices were loud and their speech was slurred. Mr Wagstaff first noticed the instability of the blond man at the time he first encountered him when bringing Mrs Wagstaff her first drink. Mr Wagstaff observed at that time that the blond headed man was unsteady and he held on to a chair for support before staggering back to his companions (T 324). Mr Wagstaff also noticed that the three men in the group were all talking loudly before the incident (T 152).

61 I accept the evidence that Mrs Wagstaff and her husband gave about the sobriety of the two men. Moreover, according to the bar manager, they had each been in the tavern since early afternoon drinking beer and, later, scotch whisky. Mr Hislop was not precise in his statement to the police as to the time that the two men arrived in the hotel but even if by “early afternoon” Mr Hislop was intending to give an approximate time as late as 3.00 pm, it would follow that by the time the altercation commenced the two men had been drinking in the hotel for some six hours. Further, they had been mixing their drinks over that period. Mr Hislop had noted the men in the pool room and, whilst he did not tell the police precisely what was inappropriate about their behaviour in the pool room, he told them afterwards that their next drink was to be their last drink. Although he considered that they had “had enough to drink”, he served them with another round even though he considered them to be affected by liquor.

62 Mrs Wagstaff gave evidence (T 52) that the bar manager gave her husband and herself scotch to drink after the incident. Her recollection was that the bar manager said:

“Words to the effect that those three men had already caused trouble in the bar earlier that night. And he had already told them that that was their last drink when he had walked in. And he apologised and said words to the effect that he just didn’t know what to do.”

63 Having regard to Pt 10 of the Civil Liability Act 2002, and in particular to s 69, I remind myself that an apology is not to be taken as amounting to an admission of fault. Hence, I do not record what Mr Wagstaff recounted as being the substance of the apology that was expressed by the bar manager, nor do I record the substance of the apology which Mr Wagstaff said was conveyed by the first defendant on the day after this incident.

64 Mr Parker submitted that it is a matter for the exercise of a judgment by those conducting licensed premises to determine when a particular patron should be declined service. No doubt it is, but to the knowledge of the bar manager the two men had been drinking since early afternoon. Accepting as I do the evidence of Mr and Mrs Wagstaff as to the state of insobriety of the men, based upon their observations, I am satisfied on the evidence that the two men were well affected by intoxicating liquor at the time the altercation began and that their insobriety should have been obvious to the bar manager and should have influenced him to decline to serve them that last round of drinks just shortly before the altercation commenced. Had he declined service, it is likely the men would have then left the tavern. Otherwise the power to "turn out" was available to be exercised.

65 It was submitted that the security personnel on duty were inadequate. The evidence establishes that there were only three members of staff in the hotel at the time: there were the two barmaids and the bar manager. The licensee and first defendant, when apologising to Mr Wagstaff for what had happened on the day after the accident, explained that the person identified in the evidence as “Neil” had been given permission by the first defendant to go home because he was ill. Neil was identified in the evidence as the security man. The first defendant also absented himself from the hotel.

66 I am satisfied on the evidence that there were still some twenty to thirty patrons in the hotel when the altercation began. No evidence was placed before the Court as to the security measures that ought reasonably to be expected in the hotel by 9.00 pm with that number of patrons. There had been earlier in the evening a period during which topless barmaids were serving patrons and I accept on the evidence that this earlier period was a busy period; but the evidence does not permit me to find that in leaving only the two barmaids and the bar manager on duty, the defendants were behaving unreasonably in the circumstances.

67 This brings me to the submission that the defendants were negligent in failing to require the three men to leave at the very latest after the red headed man broke the glass and brandished it.

68 I reviewed earlier (at para 7) Mrs Wagstaff’s account of what happened when the red headed man broke the glass. I accept, as the witness said, that the remains of the glass were held towards the faces of the plaintiff and her husband. The bar manager came upon the scene, and I am satisfied at the time that he did so, it was foreseeable that both Mrs Wagstaff and Mr Wagstaff were exposed to a risk of injury. Here was an intoxicated patron who was holding a broken glass in his hand in a threatening manner. This man and his companions had been drinking in the hotel for many hours and had earlier misbehaved. Neither of the red headed man’s companions sought to take the glass from him. This was left to the bar manager, and the red headed man was reluctant to surrender the glass to him. In these circumstances, it seems to me immediate action was called for by the bar manager to require the red headed man and his companions to leave the hotel and, if need be, to call upon the police for assistance.

69 I accept that a period of approximately five minutes went by from the commencement of the altercation and the time at which the blond headed man first attacked Mr Wagstaff. This was the period within which I consider the exercise of reasonable care by the bar manager required him to take steps for the removal of the red headed man, the blond headed man and their companion. According to the bar manager in the account he gave to the police, one of the locals gave the bar manager assistance in removing the red headed man and the blond headed man from the hotel when assistance was sought (see para 16 of the statement to the police).

70 Hence, for the reasons stated, I consider the plaintiff has established negligence in the respects referred to in [56] (i) and (iii). I also find there was a contravention of s 125(3) in a failure to take the reasonable steps referred to in s 125(4) and identified in s 125(4A).

71 I consider it more probable than not that had the bar manager acted promptly when the glass was broken, the assault upon Mr Wagstaff would have been avoided.

72 None of the three men assaulted the plaintiff. Any physical harm the plaintiff suffered was in consequence of her going to the defence of her husband. Mr Parker submitted that it was not reasonably foreseeable that the plaintiff would be harmed, referring to Chapman v Hearse (1961) 106 CLR 112, in particular at 120-121. However, that the plaintiff would go to her husband's aid in the event that he was attacked was, in my opinion, reasonably foreseeable, as was the foreseeability of harm to her in consequence of her intervention. I observe that any mental harm suffered by the plaintiff was suffered after the plaintiff witnessed her husband being put in peril by his assailants.

73 In the circumstances, I am satisfied that the first defendant, as the licensee of the tavern, and the second defendant, as the occupier of the tavern, are each liable for the breaches of duty I have found. Any liability to the plaintiff is, of course, dependent upon proof that harm was suffered by her.

74 Section 32 of the Civil Liability Act provides:

"(1) A person ( the defendant ) does not owe a duty of care to another person ( the plaintiff ) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
(2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following:
(a) whether or not the mental harm was suffered as the result of a sudden shock,
(b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril,
(c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril,
(d) whether or not there was a pre-existing relationship between the plaintiff and the defendant.
(3) For the purposes of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff.
(4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff."

75 I am satisfied for the purposes of the section that the defendants ought to have foreseen that in the circumstances of the case a person of normal fortitude might suffer a recognised illness, in this case post traumatic stress disorder, if reasonable care was not taken. I bear in mind that the plaintiff was beside her husband whilst he remained standing and that he was attacked in her sight, leading her reasonably to believe his life was in peril.

76 The plaintiff has not sought to argue that s 3B(1)(a) of the Civil Liability Act 2002 operates here to exclude the application of the provisions of the Act, doubtless because the action against the defendants is brought as an action in negligence. The hearing has proceeded upon the basis that it is necessary to consider the provisions of Pt 3 of the Civil Liability Act 2002. Section 30(3) requires that any damages to be awarded to the plaintiff for pure mental harm are to be reduced “in the same proportion as any reduction in the damages that may be recovered from the defendant by or through the victim on the basis of the contributory negligence of the victim”. Hence, s 30(3) requires adjustment of any damages awarded for pure mental harm to bring into account the contributory negligence of Mr Wagstaff.

77 For reasons stated in his case, Wagstaff v Haslam & Anor [2006] NSWSC 295, I find contributory negligence by Mr Wagstaff calling for a reduction in the damages to which he would otherwise have been entitled by twenty percent.

The assessment of damages

78 At the outset, it is necessary to determine whether the plaintiff did suffer injury in the incident, and, if so, to determine what injury or injuries were sustained.

79 According to Mrs Wagstaff, she experienced pain leaving the hotel and walking to her car on the night of 3 May 2000. Mrs Wagstaff described that pain as "shooting up my spine, from my tail bone to my neck" (T 54). She had a nightmare that night and in the morning was extremely distressed emotionally. Mrs Wagstaff said she was unable to stay at work that day and went home to bed, and the local doctor, Dr Wong, attended on her and gave her a pethidine injection. On 7 May 2000, the plaintiff entered Baringa Private Hospital and was there for eleven days with what she described as excruciating pain in her back. Mrs Wagstaff said she was continuing to have nightmares. Mrs Wagstaff said that she does not remember being discharged from Baringa Hospital and has no recollection of the next twelve months. Her next recollection was of being in the John Hunter Hospital under the care of Dr Mark Davies. After twelve months from the date of the incident, the plaintiff became dependent upon a wheelchair and has continued to use a wheelchair until this day. Mrs Wagstaff attended this Court during the course of the hearing in a wheelchair.

80 The plaintiff now presents as fully disabled with the need for a full time carer. It is Mr Wagstaff who is caring for his wife.

81 Whether the plaintiff has any ongoing disability referable to the accident is very much in issue as the competing submissions as to damages indicate. On the one hand, Mr Parker has submitted that if the plaintiff is entitled to succeed the only compensable injury is a post traumatic stress disorder, and Mr Parker has presented submissions that any damages awarded would be less than $45,000. Mr Reimer has submitted that for the non economic aspects of general damages alone, an award exceeding $200,000 would be warranted, and, amongst the other heads of damage presented, Mr Reimer has advanced a claim for paid assistance in excess of $1 million.

82 As those competing submissions would indicate, this case presents complex medical issues. For instance, the plaintiff gave evidence that she did not remember having low back pain in 1997 and said that the low back pain complained of in these proceedings first presented itself after 3 May 2000 (T 74). That assertion does not accord with the medical evidence and this inconsistency highlights the necessity to examine closely the position as to the plaintiff's mental and physical state prior to May 2000.

83 The plaintiff was born on 26 December 1962, so that she was thirty-seven years of age at the date of the incident and is presently forty-three years old. Mrs Wagstaff married her present husband in 1996 but before that had been in a de facto relationship with him for some seven years, and there is a daughter by that union who was born in 1990. Mrs Wagstaff had previously been married in 1980 but that marriage was dissolved in October 1988. In 1985 the plaintiff had been assaulted by her first husband resulting in a fall and she hit her neck on a table corner. This caused a fracture of laminae of C5 and necessitated a laminectomy procedure involving C5-6 and C6-7.

84 On 21 April 1993 the plaintiff underwent a spinal fusion at C6-C7 at the Ashfield Masonic Hospital and another spinal fusion at C5-C6 was undertaken at the same hospital on 17 January 1995.

85 It is plain that the plaintiff had a number of health problems before the incident at the tavern. In October 1996 she had an operation at the Coffs Harbour Hospital for the removal of an ovarian cyst and adhesions developed necessitating a further operation. The plaintiff had to resign from her employment with the Coffs Harbour City Council in March 1997 after an extended period of sick leave (see Exhibit 2). That document, being a council memorandum from the Administration Manager to the Human Resources Coordinator, recorded:

"As you would be aware [the plaintiff] has had a long history of illness and Council has offered her every assistance with leave, rehabilitation and part time service since 1994."

86 In September 1997 the plaintiff's local doctor, Dr Wong, referred her to Dr McGee-Collett, a neurosurgeon, and in the letter of referral recorded that the plaintiff presented "a long history of pain in the cervical spine and in the lumbar spine since 1985." There was a further referral in April 1999 which included a history of pain around the back and the upper abdomen.

87 Late in 1997 the plaintiff underwent a laparotomy procedure to investigate what were perceived to be bowel complaints. Early in 1998 the plaintiff found a part time position at the Heartsong Healing Centre. The plaintiff was paid no wages there but was given treatment in the form of hypnotherapy, acupuncture, massages and meditation sessions for her complaints.

88 Then in March 1998 the plaintiff went on a disability pension due to persisting problems with her neck and her arm. The plaintiff worked part time as a receptionist at St Augustine's Nursing Home from 6 July 1998 until 12 October 1998 (see Exhibit K) but she has received pension benefits ever since March 1998. Mrs Wagstaff was assisting her husband in his chicken business for several hours per day after leaving St Augustine's until May 2000.

89 In April 1998 Dr McGee-Collett reported to Dr Wong:

"Mrs Wagstaff returned for review today 20 April 1998. The recently performed EMG and nerve conduction studies are entirely normal and the MRI scan of the cervical and thoracic spine regions shows no significant abnormality. Unfortunately there is no surgical treatment I can offer this lady to help her predicament and I have suggested she gets on with her life as best she can. I doubt whether a pain management programme will help her and I have told her that she should become as active and supple as possible and to pursue some exercise. A rehabilitation specialist may help with this latter facet of her treatment. I have had a full and frank discussion with Mrs Wagstaff regarding her condition and I have not made any further follow-up arrangements."

90 In July 1999 Dr Cresswick wrote to Dr Wong at a time after the plaintiff had been discharged from the Seventh Day Adventist Hospital. The plaintiff apparently attended on Dr Cresswick after discharge with worsening pain on the left side in the lower thoracic region. The plaintiff was also complaining of left buttock pain and left lateral thigh pain. Dr Cresswick was concerned about the plaintiff's ongoing narcotic use, and he strongly recommended that the plaintiff be reviewed by a specialist psychiatrist for her depression which was associated with chronic pain syndrome.

91 Medical records subpoenaed from Dr Duguid, now the plaintiff's general practitioner, record many complaints of back pain: see the entries of 7 November 1997, 14 November 1998, 28 January 1999, 29 January 1999, 7 February 1999, 9 February 1999, 17 May 1999, 24 May 1999, 2 June 1999, 8 June 1999, 11 June 1999, 18 June 1999, 17 July 1999, 30 July 1999, 6 January 2000, 8 January 2000 and two dates (obscured) in March 2000. Those same records suggest that the plaintiff was treated at Coffs Harbour Hospital for irritable bowel syndrome on 28 January 2000 and that she was admitted to Baringa Private Hospital in February 2000. The records then show that the plaintiff was given five injections of pethidine over the period March-April 2000. The next injection appears to be that given by Dr Wong on 4 May 2000, that is on the home visit he made on the day after the tavern incident.

92 Dr Wong was the plaintiff's general practitioner when he provided a report dated 25 July 2001 (part of Exhibit L). In that report Dr Wong said the plaintiff had "a long history of chronic pain in the cervical spine and lumbar spine since 1985". Then, in 1996 after a procedure for an ovarian cyst, the plaintiff "continued to experience moderate to severe pain in the abdomen…neck pain, lower back pain and migraine type headaches."

93 What emerges from this review is that the plaintiff had many health problems and her complaints included recurrent back pain and depression. It is evident also that the extent of her use of narcotics concerned Dr Creswick.

94 Unhappily, no doctor has been called in this case who treated the plaintiff for her health problems prior to May 2000. What is clear though is that the plaintiff's problems included cervical and other back problems and that her health was such that she was continually unfit for full time employment for over three years prior to the incident in question.

95 Plainly, the case is one which demands care in determining that the plaintiff is only compensated for the consequences of what happened on 3 May 2000.

96 A large number of medical reports have been tendered in the plaintiff's case, but the reports come from a number of medical fields and there is no specialist orthopaedic expert who has been called in the plaintiff's case or, indeed, who has been qualified to give evidence. There does not appear to have been any orthopaedic specialist who has treated the plaintiff.

97 It is clear that there are psychiatric and psychological features to be considered in this case and, indeed, that they loom large. However, from the point of view of the organic medicine, the high water mark of support for the plaintiff's case is to be found in the reports of Dr Davis. Dr Davis is a general practitioner who has specialised in occupational medicine and injury management since 1974. He has seen the plaintiff on three occasions, not to treat her, but for the purposes of medico-legal assessment. The first assessment was on 3 July 2003, and Dr Davis reported after that assessment:

"As a result of the incident she has not only suffered injury of a myofascial nature in the thoraco lumbar region, which includes aggravation of pre-existing symptoms in the thoracic spine but also significant psychological reaction to injury and fairly clear evidence of post traumatic stress disorder.
I believe that her major factor resulting in functional limitation relates to her poor coping mechanisms and problem solving ability for which she requires intensive cognitive behaviour therapy to assist her to overcome the functional limitation subsequent to her pain.
Overall a combination of the physical and psychological sequelae from the incident render her permanently unfit to return to any form of formalised employment on a part time or permanent basis."

98 The next examination was on 19 November 2004. Following this examination, Dr Davis reported, inter alia (p 4 of report of 25 November 2004):

"Whilst it is again impossible to rule out myofascial trauma having been occasioned to her thoracolumbar spine as a result of throwing herself against the back of the ladies toilet door, I believe that once again her major difficulty now relates to a chronic pain syndrome with significant psychological problems and post traumatic stress disorder."

99 Dr Davis apportioned one-half of the plaintiff's problems to her pre-existing condition.

100 Dr Davis saw the plaintiff again on 28 July 2005. He concluded, following that examination, that the plaintiff

"She presents with a chronic pain syndrome and is not undergoing any counselling which would indicate poor problem solving skills and appreciation of her difficulties.
It is possible that she is even suffering with a conversion reaction although further opinion in that regard should be obtained from an appropriate specialist. Nevertheless, I do that the pain of which she complains is certainly real to her and that as a result she is quite significantly impaired and disadvantaged in all spheres of her life."

101 This time Dr Davis attributed the plaintiff's then current presentation as being "entirely in response to that incident".

102 In evidence before this Court, Dr Davis said that he would not advise the plaintiff to use a wheelchair. Dr Davis agreed in cross examination that the plaintiff's essential problem was a psychological one, but he did not consider that what he perceived to have been the aggravation of the pre-existing condition in the thoracic spine had resolved. He did agree (at T 416) that it strained credibility to suggest that the minor physical events which the plaintiff experienced on 3 May 2000 could lead to the physical debility which the plaintiff presented at trial. However, Dr Davis in cross examination returned to his original assessment that the pre-existing pathology contributed fifty percent towards the plaintiff's present physical debility.

103 The only other doctors called in the plaintiff's case were Dr Cassimatis and Dr Holmes, both of whom are psychiatrists. It will be necessary to consider their evidence presently.

104 I referred earlier to Dr Wong's report of 25 July 2001. In that report, he referred to his attendance on the plaintiff at a home visit on 4 May 2000 when the plaintiff was complaining of severe pain. Dr Wong gave her an injection of pethidine. He opined that the plaintiff had "aggravated her neck and back condition" although he was not specific as to the nature of the further injury, if, indeed, he intended to convey that there was further injury on 3 May 2000.

105 Dr Wong wrote:

"In addition to the past medical condition of severe pain in the neck, lower back and abdomen, which now further exacerbated and more intense, her reported difficulties are consistent with the mental disorders - post traumatic stress disorder, chronic and major depressive disorder."

106 Dr Duguid assumed the plaintiff's care from Dr Wong at a general practitioner level. He wrote on 13 January 2006 that he has been seeing the plaintiff every ten to fourteen days

"for management of her ongoing problems of chronic pain disorder due to soft tissue injuries to the thoracic and lumbar spine, significant depression and post traumatic stress disorder following the incident in May 2000."

107 The only orthopaedic specialists, the benefit of whose opinions the Court has, are orthopaedic specialists who were qualified by the defendants. Dr Silva examined the plaintiff on 22 August 2003. In the opinion of that specialist

"There is no organic orthopaedic basis of her continuing symptoms in the low back and weakness in the legs. She does not require any orthopaedic attention, such as orthopaedic surgery or injections or physiotherapy.
Her psychiatric and psychological problems are another matter."

108 There was no need in Dr Silva's view for the plaintiff to be in a wheelchair.

109 When cross examined, Dr Silva said it was highly unlikely for the mechanism of kicking the man in the hotel to have caused disc injury. Dr Silva saw MRI pictures taken on 26 March 1999 and 7 February 2001. These pictures were normal, showing no disc dehydration or protrusion. Further, Dr Silva regarded it as being highly unlikely for the plaintiff to have suffered significant soft tissue injury when holding her back against the toilet door, and he also considered it to have been highly unlikely that the plaintiff sustained soft tissue injury from the act of kicking her husband's assailant. In Dr Silva's opinion, soft tissue injuries almost always recovered and he would have expected any soft tissue injury, if sustained in May 2000, to resolve in weeks.

110 The defendants also qualified Dr Vote, an orthopaedic surgeon. Dr Vote saw the plaintiff on 2 February 2005. He reported that he found no evidence of organic damage to either her thoracic or lumbar spine, and that, notwithstanding her history and physical presentation, there was no evidence of neurological deficit. Dr Vote wrote:

"Overall, I can find no anatomical or logical explanation for her continued disability in relation to her cervicothoracic spine and the most likely conclusion is that her problems are largely of a conversional or emotional nature."

111 The opinions of Dr Silva and Dr Vote are to the like effect. I prefer their opinions to that of Dr Davis. I found Dr Silva's evidence persuasive and, of course, the opinions of Dr Silva and Dr Vote cannot be reconciled with that of Dr Davis. There is no objective evidence that supports the opinion of Dr Davis, and I am influenced by what Dr Silva said in cross examination as summarised in [109] above. I consider it unlikely on the whole of the evidence that the plaintiff sustained any significant harm to her lower back on 3 May 2000. I do not consider, particularly having regard to the evidence of Dr Silva and Dr Vote, which I accept, that the plaintiff sustained any injury such as would account for persisting symptoms in the lower back and in the cervical spine ever since May 2000.

112 I accept, however, that there was an exacerbation of pain which prompted Dr Wong's house call on 4 May 2000. It is possible that there was some minor soft tissue injury sustained which would have resolved within a short period of time. However, the plaintiff has failed to prove that her ongoing complaints of pain in the spine are due to the incident in May 2000.

113 This brings me to a consideration of the plaintiff's mental state. Both the plaintiff's husband and the plaintiff's daughter noticed changes in the plaintiff from the time of the incident in question. Mr Wagstaff described the changes in the plaintiff's personality as dramatic. He said that she was no longer bubbly and smiling and that she easily became tearful. The plaintiff's daughter, Angela, said that after the incident her mother became negative, that she was always miserable and upset. Before the incident, her mother attended to the home and it was always spotless but after the incident, Angela and her father attended to the house.

114 The plaintiff sought counselling from a psychologist, Ms Tait, in September 2000. Ms Tait obtained a history from the plaintiff that the incident in the tavern had caused the plaintiff an extreme level of distress and that it had affected most areas of her life. She gave a history of experiencing nightmares and flashbacks, and Ms Tait considered that the plaintiff's reported difficulties and her presentation were consistent with the existence of a post traumatic stress disorder and a major depressive disorder. In a follow-up report after further counselling, Ms Tait remained of that opinion.

115 This brings me to the evidence of the psychiatrists to whom I referred earlier.

116 Dr Holmes assessed the plaintiff on two occasions, the first of which was 12 August 2003. He obtained a history at that time that following the tavern incident the plaintiff suffered from nightmares five times per week and that she experienced flashbacks six or seven times per day. Mrs Wagstaff also told the doctor that she had panic attacks and that she has become hyper-vigilant, keeping a bat and a knife under her bed for protection. Dr Holmes opined that the plaintiff was suffering from a post traumatic stress disorder, a major depressive episode and a pain disorder.

117 When Dr Holmes saw the plaintiff for the second time, on 23 May 2005, he formed the opinion that the plaintiff's condition has deteriorated. Her overall condition appeared to Dr Holmes to be significantly worse. He considered that the plaintiff would remain permanently invalided.

118 Dr Holmes was not a treating doctor. He saw the plaintiff but twice and for the purposes of this case. He was dependent upon the history given. He agreed in cross examination that the plaintiff had a pain disorder before the episode at the tavern.

119 Dr Holmes was asked to define what would cause the plaintiff to remain permanently invalided. He gave these answers to these questions (T 458):

" HIS HONOUR: Q. Before we leave Mrs Wagstaff, your concluding expression of opinion in that report that she will remain permanently invalided - by what, doctor?
A. By the total condition, the pain syndrome and the PTSD. It's difficult to unravel them entirely, but particularly the pain syndrome.

PARKER: Q. Sorry, did you say particularly the pain syndrome or not particularly?
A. Yes, more so the pain syndrome.

Q. So it is the pain syndrome that makes her permanently invalided?
A. The PTSD has a major impact on her life, too, in terms of being able to mix in public and do things involving other people. It's greatly restricted, too, but the pain syndrome is the one that prevents further progress, I suppose.

Q. So if the pain syndrome could be remedied, then the psychiatric post traumatic stress disorder could be tackled; is that right?
A. It could be tackled, but the extent to which she would recover from it remains to be seen. Some people do better than others.

Q. And some people recover to a great extent, don't they?
A. Yes, although the longer the interval, generally the poorer the results."

120 Dr Cassimatis saw the plaintiff on one occasion, in June 2005. Once again, he did not see the plaintiff to treat her but to qualify to give evidence in this case. He considered that the event in the tavern caused a severe post traumatic stress disorder with gross avoidant behaviour. Dr Cassimatis wrote on 4 July 2005:

"It is my view that she will improve minimally after the conclusion of the procedure. Procedures of this nature have the unfortunate effect of exacerbating a post traumatic stress disorder. The level of distrust, fear, shame, expectation of failure, and hyper-vigilance has resulted in the more base communications of body language, highlighting that she is a vulnerable and frail person living in fear.
I am anticipate that she will receive long term ongoing supportive psychotherapy for the rest of her life."

121 In his evidence, Dr Cassimatis disclosed that when he referred to the "procedure", he was referring to this court case. The plaintiff described to Dr Cassimatis pain she experienced at the time of the incident, but the doctor said this was a reaction to the pain inflicted upon her husband and it was pain that the plaintiff did not localise.

122 Dr Cassimatis considered it would be difficult to treat the plaintiff's psychological problems because of her excessive narcotic consumption. That consumption was for her pain syndrome, a condition which, in the opinion of Dr Cassimatis, preceded the incident on 3 May 2000.

123 Dr Akkerman made a psychiatric assessment of the plaintiff on behalf of the defendants in January 2004. His opinion at that time was that the plaintiff was suffering from benzodiazepine abuse and opiate abuse, and that the plaintiff was in need of supervision to help her with her drug abuse. Dr Akkerman did not consider that the plaintiff had developed post traumatic stress disorder, major depression or adjustment disorder, or, indeed, any other psychiatric disorder. He opined that the plaintiff's problems were all pre-existing and that the plaintiff was exaggerating.

124 Dr Akkerman re-examined the plaintiff on 15 February 2005. His diagnosis was unchanged. His prognosis was expressed thus:

"Her prognosis has to be very guarded. She is now very much engrossed in the sick role. She believes she is very disturbed. She is not very motivated.
I do not believe there is any permanent impairment. She still needs specialist treatment. The medication she receives is inappropriate and needs to be addressed. This needs to be addressed by a senior psychiatrist with an interest in pain…"

125 Dr Akkerman commented in his earlier report on the plaintiff's dreams and flashbacks being stereotyped. His opinion was that patients who report that their nightmares are always the same "have a high chance of being malingerers". He considered too that the plaintiff was untruthful in some of her responses and that her tearfulness appeared contrived. However, I did not form the impression that the plaintiff set out to deceive this Court and I do not reject the evidence that her husband and her daughter gave concerning the changes in the plaintiff's personality since the incident, although I am satisfied that the plaintiff had very significant health problems before it occurred.

126 The defendants qualified a second psychiatrist, Dr Delaforce. He examined the plaintiff on 19 August 2003. Dr Delaforce diagnosed the following mental disorders:

"(a) Major Depressive Disorder.
(b) Post Traumatic Stress Disorder.
(c) Alcohol Dependence."

127 Dr Delaforce attributed the post traumatic stress disorder to the tavern incident.

128 Mr Parker frankly conceded that he had difficulty in resisting the claim concerning the development of a post traumatic stress disorder. The reality was that the plaintiff had a terrifying experience, seeing what she perceived to be an incident in which her husband's life was threatened.

129 I have had the benefit, of course, of seeing Dr Holmes and Dr Cassimatis give their evidence. I am persuaded by their evidence that the plaintiff has been suffering from a post traumatic stress disorder since the incident in May 2000 and that this condition was brought about by what occurred in the hotel. I also accept that the plaintiff suffers from depression, but the plaintiff had suffered from depression before May 2000 and, absent any satisfactory evidence tracing the course of that disorder prior to May 2000, I am unable to determine whether the incident in that month caused significant aggravation.

130 I do find that the plaintiff had a pain disorder before May 2000 attended by excessive narcotic consumption. Unhappily, the pain disorder and the excessive resort to medication have persisted, but I am unable to attribute these problems to the incident in the tavern.

131 Any perception by the plaintiff of pain in the low back would have been magnified in the plaintiff's perception by her post traumatic stress disorder. I accept the opinion of Dr Holmes to this effect, but I do not find any continuing exacerbation of the pre-existing pain disorder referable to the incident in the hotel. Further, I do not find that the plaintiff suffered an injury to her low back on 3 May 2000 such as could account for the complaints of back pain that the plaintiff continues to make. I find these complaints to be referable to the pre-existing condition.

132 I find on the evidence that the post traumatic stress disorder has been severe.

133 The plaintiff gave evidence (T 57) that when admitted to Baringa Hospital in May 2000 for a period of eleven days she experienced flashbacks and nightmares, and her evidence was that these were continuing whilst she was seen by Ms Tait towards the end of 2000. I accept that this was so. The plaintiff gave evidence that the nightmares and flashbacks continued and that she contemplated suicide because she wanted these experiences to cease. Mr Wagstaff gave evidence (T 189) of a suicide attempt by his wife in December 2002 when she took an overdose of medication and was admitted to hospital at Coffs Harbour.

134 In September 2005 the plaintiff was admitted to the Coffs Harbour Base Hospital having taken an overdose the night before. The plaintiff then tried to stab herself with a knife. Following this attempted suicide, the plaintiff was in Coffs Harbour Base Hospital firstly but was then transferred to Baringa, where she remained for a few months. There the plaintiff was treated by a doctor she described as a specialist, Dr Jenny Jin. Unhappily, the Court has had the benefit of no evidence from this doctor. However, the plaintiff said that the treatment given had been beneficial and the plaintiff's medication had been changed. According to Mrs Wagstaff, she is on more medication now than she was before. Mrs Wagstaff gave evidence of treatment since her last admission to hospital in September last year by a new doctor who she was unable to name, but she said she felt a marked improvement under this doctor's care. Again, unfortunately, there was no evidence from this source. Mrs Wagstaff said that this doctor was helping with the nightmares and flashbacks. Mrs Wagstaff was asked these questions and gave these answers (T 117):

" Q. And the treatment that you got in 2005 was essentially directed to controlling your consumption of the medication?
A. No.

Q. I'm sorry, I thought that's what you told me.
A. No. I said my, my, he was helping with, with the nightmares and flash backs and things like that. That's what he's helping me with.

Q. But I said that I was feeling a lot better since they have increased my medication and changed all my medication. I've been able to get up for half a day instead of being in bed a whole day.

HIS HONOUR: Q. What about the nightmares and flash backs, has there been improvement in that?
A. The nightmares, there has been a substantial improvement because of the tablets that they have given me at night. They knock me out, but during the day I still get the flash backs all the time.

Q. During the day?
A. Yes.

PARKER: Q. But if I can say this, you are receiving benefit from the treatment that you had last year and you're improving, is that right?
A. Yes.

Q. That's your assessment?
A. I believe so.

Q. And it's helped you in the night-time nightmares, is that right.
A. Yes.

Q. Are you going to continue with that treatment?
A. Yes.

Q. Is that right?
A. Yes.

Q. And how often do you see this doctor?
A. It would be once a week.

HIS HONOUR: Q. Is that the psychiatrist you're seeing?
A. It's the psychiatrist.

Q. But you can't think of his name?
A. No, I can't remember his name. But Community Care Options is paying for it at the moment."

135 The medical evidence in the plaintiff's case is unsatisfactory in many respects. It is difficult to determine precisely to what extent each of the three conditions diagnosed by Dr Holmes is contributing to the plaintiff's ongoing situation. I do not find either the chronic pain syndrome or the depression to be compensable, but the post traumatic stress disorder is, and it has a widespread effect on the plaintiff's wellbeing and her lifestyle. Dr Cassimatis considers the prospect of future improvement after this case is over is minimal. Dr Holmes considers that the post traumatic stress disorder cannot be treated without also treating the depression and the pain problem. In his opinion the plaintiff needs to be an inpatient in a pain clinic for a substantial period of time to address all her problems.

136 It is indeed regrettable that it was not until September 2005 that the plaintiff commenced to have psychiatric treatment. Whilst some improvement may well occur, I find on the balance of probabilities that there will be no complete recovery from the post traumatic stress disorder and that the experiences associated with that condition are likely to continue indefinitely. I find those experiences pervade the plaintiff's lifestyle causing flashbacks and making her fearful for her safety in the home. I find that the condition accounts for the fact that the plaintiff has become withdrawn, anxious and antisocial. I also consider it to be probable that the impact of the pain syndrome was magnified by the condition. It simply is not possible to isolate altogether the post traumatic stress disorder and its consequences from either the depression or the pain disorder and other consequences. Dr Holmes wrote in the later of his two reports that since the tavern incident the plaintiff "has been in a vicious cycle in which the PTSD, depression and pain disorder reinforce each other". He also said in his oral evidence that the pre-existing pain disorder was exacerbated by both the post traumatic stress disorder and the depression (T 453).

137 I am satisfied overall that the post traumatic stress disorder caused by the experience on 3 May 2000 has had, and will continue to have, most serious consequences for the plaintiff in her daily life.

138 Assessing as I do the impact of the post traumatic stress disorder as most serious having regard to its overall impact upon the plaintiff's life, I assess the severity of the non economic loss as a proportion of a most extreme case as being thirty percent. Hence, pursuant to the table set out under s 16 of the Civil Liability Act 2002, I propose to award twenty-three percent of the maximum amount payable under s 16(2). The maximum payable under that sub-section is $416,000, and I allow twenty-three percent of that, namely $95,680. This allowance must be reduced to bring into account Mr Wagstaff's contributory negligence.

139 This brings me to the claim for past economic loss. I accept that the plaintiff did not work again in the chicken shop after she went home on 4 May 2000 and Dr Wong made the house call upon her. The business was closed on 28 February 2001, but between the time that the plaintiff last worked in it and the time that the shop closed, Mr Wagstaff engaged additional hired help in the absence of the plaintiff. The cost of replacement staff was $6216.

140 The plaintiff had been in hospital shortly before the incident in May, but the evidence discloses that she was able to assist her husband as at the time of the accident. I accept that the post traumatic stress disorder manifested itself very shortly after the accident and that it did so whilst the plaintiff was in hospital in May 2000. The reports of Ms Tait, the psychologist, record that by 21 September 2000, the plaintiff "presented as a very traumatised person" and Ms Tait recorded a detailed history evidencing the extent of the post traumatic stress disorder in September and November 2000. The plaintiff had a deal of counselling for that condition from Ms Tait and on balance, whilst I do not overlook that the plaintiff had the pre-existing depression and the pre-existing pain syndrome, I consider it to be reasonable to allow the claim made to the date of the closure of the chicken shop business. Hence, I allow $6216 as being the measure of her lost earning capacity during that period.

141 A claim is then made from February 2001 to date for economic loss.

142 I have found it extremely difficult to assess this and other claims of an economic nature because of the very complex medical issues this case presents and the shortcomings in the available medical evidence. In short, the plaintiff has three conditions, only one of which is compensable. To what extent, if at all, is the compensable condition of the post traumatic stress disorder relevant in a causative sense to these various heads of damage?

143 I am satisfied that the post traumatic stress disorder will prevent the plaintiff from pursuing gainful employment. I accept that the plaintiff has, because of the condition, become fearful and withdrawn and that the condition would have prevented her from working up until the present time. I am also satisfied that the condition will probably persist to the extent that she would be unable to work in the future because of it.

144 Mr Reimer submitted that it would be reasonable to allow the plaintiff, in addition to the $3108, a further $48,360 upon the basis of a loss of $186 per week. This is comparable to what the plaintiff was earning at St Augustine's. The plaintiff had not worked at St Augustine's Nursing Home since 12 October 1998 and had only worked there for three months altogether. Nevertheless, I accept that after leaving the nursing home the plaintiff worked several hours per day assisting her husband in the chicken shop and sometimes cooking from home. Mrs Wagstaff also did the books.

145 I do not consider it likely that the plaintiff would have pursued constant part-time employment had the incident in the tavern not occurred. The plaintiff would have had a better chance of doing some work in her husband's business than with an outside employer but the pain syndrome would have hindered her employment prospects.

146 However, to give due recognition to the effect of the post traumatic stress disorder upon any residual ability to work, I propose to allow for the past an allowance of $75 per week. Accordingly, I allow for the past $19,500, in addition to the sum of $6216.

147 Accepting, as I do, that the plaintiff's post traumatic stress disorder will permanently prevent her from pursuing gainful employment, I consider it reasonable to make some allowance for the future. However, without the complication of the post traumatic stress disorder, the chronic pain syndrome would have been expected to progress and very substantially disturb the plaintiff's working capacity, unless effectively treated in the future. I find, for reasons I will shortly state, that the future need for domestic assistance is, on the probabilities, referable to the chronic pain syndrome and its progression. Mr Reimer advanced a claim for loss of earning capacity to the age of sixty. It is possible that the pain syndrome can be effectively treated in the future and that the plaintiff may have been able to do some work but for the post traumatic stress disorder - a chance I regard as not being so low as to be speculative (see Malec v J.C. Hutton Pty Limited (1990) 169 CLR 638 at 643). I propose to take account of this by making a modest allowance of $10,000 for the future.

148 I allow interest on the award for past economic loss in the sum of $6943.

149 A claim is made for lost superannuation benefits. By employing the percentages advanced by Mr Reimer, namely 7.5% on the past and 9% on the future, I allow $1928 for past lost benefits and $900 for the future.

150 The plaintiff next makes a claim for out of pocket expenses. These are set out in Exhibit S. There is a sum of $81,338.58 which is said to be refundable to the various sources identified in the event the plaintiff succeeds in this case. There is no breakdown of these amounts, so that it is not clear if any part of them is referable only to the post traumatic stress disorder. The defendants accept that the sum has been expended for treatment and for travel for treatment purposes.

151 I have been troubled by this claim but influenced for the purposes of considering it by Dr Holmes' conclusion that the post traumatic stress disorder, the depression and the pain disorder reinforce each other, I have concluded on balance that this amount of $81,338.58 should be allowed.

152 For the future, the plaintiff claims the cost of medication at the rate of $40.55 per day. Exhibit S sets out the detail of the medication and the costing. Prima facie, the medication level is extremely high. The plaintiff gave evidence that the medication prescribed had been increased in the course of the successful treatment since September last year. Much of the medication is for pain relief and hence is properly to be attributed to the pain disorder. There has been no real attempt to identify the medication referable to the post traumatic stress disorder. Mr Wagstaff gave evidence identifying the functions of some of the medication. He identified medication for pain relief, indigestion, muscle spasm, sleeping, nerve pain and nausea. It is reasonable to regard the medication to assist sleep and the antidepressant medication as appropriate for the treatment of the post traumatic stress disorder. Hence, I am able to identify from the list Mertazon, an antidepressant, and Zyprexa, a medication to aid sleep. It is reasonable to provide for the cost of this medication indefinitely. Mr Reimer submitted that having regard to the adverse facts affecting the plaintiff's life expectancy, it was reasonable to provide for a life expectancy of thirty-one years, and I accept this submission. Accordingly, I propose to allow for medication the sum of $47 per week, and, by reference to the five percent tables, I arrive at an allowance of $39,188, rounding the calculation off.

153 A claim is made for the cost of future psychiatric care. Dr Holmes considered that the plaintiff would benefit significantly from psychiatric treatment, and I consider that specialist treatment in this field should have commenced a long while ago. When Dr Holmes opined that the plaintiff would benefit from psychiatric treatment, the plaintiff's psychiatric treatment had not begun, but I accept that thus far that treatment Mrs Wagstaff has received since September 2005 has proved to be beneficial and it is reasonable to expect that it will continue to be beneficial. There is no evidence as to the cost of that ongoing treatment, but Dr Holmes has recommended twenty attendances upon a psychiatrist at a cost stated of $230 per attendance. I consider this to be a reasonable requirement to address a compensable need, and accordingly I include the sum of $4600 in my assessment.

154 Dr Holmes also recommends that the plaintiff become an inpatient at a pain clinic and he has recommended the residential course at North Shore Hospital, with an approximate cost of $12,000. I accept, having regard to the evidence of Dr Holmes that in order to better treat the post traumatic stress disorder, there is a need to address the pain disorder, so I consider it reasonable to allow for the clinic attendance as a measure in treating the compensable disorder.

155 A claim is also made for attendances upon a general practitioner. Dr Duguid is seeing the plaintiff every 10-14 days for all her problems and the plaintiff is receiving regular counselling. It is reasonable to make some provision for attendances upon the plaintiff's general practitioner in relation to the post traumatic stress disorder. I allow for monthly visits at $32 per visit, and hence I allow under this head the sum of $6670.

156 This brings me to the claim for the cost of domestic services. The plaintiff gave evidence that before the accident she attended to the house and that contention was supported by Mr Wagstaff and by the plaintiff's daughter. I accept that evidence. According to the plaintiff, she has been unable to do the housework since the accident. She said that her husband spends sixteen hours per week doing housework and in addition Home Care provides two and a half hours per week of services. Mr Wagstaff said that he has helped his wife to shower, to dress and to do her hair. He has also ensured that she takes her medication. In addition, he said he did the cooking and tidied the house. His estimate was that this took some seven hours per day altogether.

157 Angela Wagstaff said that her mother was always working before the accident and that the home was spotless. After the accident, Angela was called upon to do the washing and the wiping-up and general chores, and to help her mother to dress. Her estimate was she spent one and a half hours per day doing housework and that her father did more. Angela left home after her mother's attempted suicide towards the end of 2005.

158 I accept that from the time that this incident in the tavern occurred the plaintiff ceased to attend to the house and that these duties were assumed by her husband, assisted by her daughter. The evidence as to the time that these activities took Mr Wagstaff and his daughter can only be considered to be estimates.

159 Dr Davis expressed the view that absent gratuitous assistance, the plaintiff would require at least twenty-four hours of commercial domestic assistance each week and ten hours per week for personal care. However, Dr Davis also considered that Mr Wagstaff had a need for domestic assistance and quantified that need at twenty hours per week, so that taken together the effect of the recommendations of Dr Davis was that the household needed forty-four hours assistance. That, of course, I do not accept, and it seems to me that the estimates as to care needs expressed by Dr Davis have to be approached with some caution.

160 Dr Duguid, in a short report dated 2 May 2005, having referred to the plaintiff's problems, wrote that because of them the plaintiff was "dependent on a twenty-four hour carer which is provided by her husband". I take that short report as being some support for the claim as to the need of care.

161 I am satisfied that there has been a need for care for the plaintiff since the accident and I am satisfied that the care has been provided gratuitously by Mr Wagstaff and, to a lesser extent, by their daughter. It seems to me that the level of care necessary would, on average, have occupied twenty hours per week, save for periods when the plaintiff was in hospital. The adoption of the hourly rate advanced by Mr Reimer would result in an allowance for care to date of $102,000, rounding the calculation off (ie, using an hourly rate of $17.86).

162 However, before that allowance, or any other figure, can be awarded to the plaintiff for care gratuitously provided, it is necessary to consider s 15 of the Civil Liability Act. Section 15(2) provides, relevantly:

"(2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that:
………
(b) the need has arisen or arose solely because of the injury to which the damages relate, and the services would not be (or would not have been) provided to the claimant but for the injury."

163 Has the plaintiff proved that the need for the care that has been provided has arisen solely because of the injury to which the damages relate?

164 I am satisfied that the post traumatic stress disorder became manifest almost immediately after the accident and I accept that this coincided with the change in the plaintiff which then required her husband and her daughter to assume the burden of the domestic chores, and of caring for her. I am not satisfied on the balance of probabilities that there was a frank back injury at the tavern and it is reasonable to attribute the increase in the plaintiff's pain level immediately after 3 May 2000, at least in part, to the post traumatic stress disorder and some role it played in the exacerbation of pain referable to the pre-existing disorder.

165 However, the post traumatic stress disorder did not cause the pain disorder. That was a pre-existing condition. It is essentially the pain disorder which limits the plaintiff's physical ability and requires that the plaintiff be provided with assistance in the house and to attend to her personal needs.

166 When I have regard to the pre-existing depression and the pre-existing pain disorder and the likely progression of that disorder, I find myself quite unable to be satisfied that in the period to date the need for gratuitous services has arisen solely because of the post traumatic stress disorder. Hence, I conclude that s 15 prevents an award for the services that have been provided in the past.

167 Section 15 was obviously framed to address cases in which a need for services is attributable to more than one case. In such cases damages in respect of gratuitous services are not be awarded. It seems to me that this case fits into that category.

168 So far as the future is concerned, the plaintiff makes a claim that provision should be allowed for permanent professional assistance. I accept that the plaintiff has an ongoing need for the provision of home care. I consider that that need could be adequately addressed commercially with the provision of no more than eighteen hours commercial services per week. Relevant in that assessment is the assessment that the plaintiff does not need to use a wheelchair.

169 However, once again I must consider whether the need to be addressed is properly to be attributed to the compensable condition, namely the post traumatic stress disorder. As I see it, the ongoing need for services ought to be attributed to the pain disorder and its inevitable progression (unless it is effectively treated). Dr Holmes identified the pain syndrome as the main factor in forming the opinion that the plaintiff would remain permanently disabled: see [119] above. Further, I accept the evidence of Dr Davis (at T 147) that the pre-existing spinal condition and the plaintiff's pain levels will deteriorate with further loss of function. Although I do not have the benefit of evidence from the plaintiff's treating psychiatrist under whose care the plaintiff has improved in recent months, looking to the future, I am not satisfied that it is reasonable to regard the plaintiff's post traumatic stress disorder as bringing about the need for assistance. Rather, I consider as to the future that the ongoing need is properly to be attributed to the plaintiff's pre-existing condition and its inevitable progression.

170 It follows therefore that the plaintiff's claim for assistance, both as to the past and as to the future, is unsuccessful.

171 I summarise the assessment as follows:

General damages - non economic loss $95,680.00
Out of pocket expenses 81,338.58
Past economic loss 6,216.00
19,500.00
25,716.00

Interest on past economic loss 6,943.00
Future economic loss 10,000.00
Lost superannuation benefits:
Past 1,928.00
Future 900.00
2,828.00
Future costs:
Medication 39,188.00
Psychiatric treatment 4,600.00
Pain clinic 12,000.00
General practitioner 6,670.00
$284,963.58
Less twenty percent deduction pursuant to s 30(3)
of Civil Liability Act 56,992.71
$227,970.87

172 I round the assessment off to $227,971.

173 Accordingly, there will be verdict and judgment for the plaintiff in the sum of $227,971. Costs are reserved.

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