Weston v Stinson Nominees Pty Ltd
[2009] WADC 67
•6 MAY 2009
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: WESTON -v- STINSON NOMINEES PTY LTD [2009] WADC 67
CORAM: SLEIGHT DCJ
HEARD: 3-4 FEBRUARY 2009
DELIVERED : 6 MAY 2009
FILE NO/S: CIV 2292 of 2006
BETWEEN: BRADLEY JAMES WESTON
Plaintiff
AND
STINSON NOMINEES PTY LTD
Defendant
Catchwords:
Plaintiff injured in tavern whilst being restrained - Liability of owners of licensed premises for injury to patron - Civil Liability Act 2002 - Obligations under the Liquor Control Act 1988 - Defences under the Criminal Code - Turns on its own facts
Legislation:
Civil Liability Act 2002
Criminal Code
Criminal Code Compilation Act 1913
Liquor Licensing Act 1988
Result:
Claim dismissed
Representation:
Counsel:
Plaintiff: Mr K S Pratt
Defendant: Mr D R Clyne
Solicitors:
Plaintiff: Trewin Norman & Co
Defendant: Kott Gunning
Case(s) referred to in judgment(s):
Carpenter & Anor v Hinkley [2008] WADC 161
Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 194 ALR 337
Meeks v Kirkham [2000] WASCA 94
Neindorf v Junkovic [2005] HCA 75
Roads & Traffic Authority of New South Wales v Dederer & Anor [2007] HCA 42
Waverley Council v Ferreira [2005] NSWCA 418
West Australian Newspapers Ltd v Bridge and Tozer (1979) 141 CLR 535
Wyong Shire Council v Shirt (1980) 146 CLR 40
SLEIGHT DCJ: The plaintiff, Mr Weston, went to the Princess Road Tavern (a business conducted by the defendant) on the evening of 16 June 2005 expecting to represent the tavern in an A‑grade dart competition. He arrived at the tavern at about 7.30 pm. He had already consumed by that time approximately five to six cans of full‑strength beer. On arriving at the tavern Mr Weston was told he was not permitted to play in the competition as his name had not been included in the official team list. This angered Mr Weston and he argued with officials but to no avail. Unable to play in the darts competition, Mr Weston retired to the public bar area of the tavern where he consumed a further quantity of beer and played pool with a friend, Mr Dean Meade. At about 10.30 pm an incident occurred, with Mr Weston becoming involved in a verbal exchange with a barmaid, Mrs Leanne Bowdidge, over Mr Weston's behaviour. As a result of the verbal altercation Mr Weston stood up on a tray which ran along the base of the bar and at the very least remonstrated with the barmaid. An employee of the defendant, Mr Daniel John Edwards, intervened and pulled Mr Weston away from the bar surface. At the same time Mr Meade also applied force to remove Mr Weston from the bar surface. Somehow Mr Weston's foot became caught up in the tray at the base of the bar and, with the application of force, Mr Weston fell backwards on to the floor. In doing so Mr Weston fractured his tibia and fibula.
Mr Weston makes a claim for damages for loss and damages suffered as a result of his injuries on the basis of the defendant's alleged negligence and/or alternatively on the basis that the defendant is vicariously liable for the negligence of its employee, Mr Edwards.
Pleadings
The alleged negligence pleaded in par 4 of the statement of claim is as follows:
"4.The accident was caused by the negligence of the Defendant and its servants and/or agents for whom the Defendant is vicariously liable.
PARTICULARS OF THE DEFENDANT'S NEGLIGENCE
(a)Failing to take any or any adequate precautions for the safety of the Plaintiff whilst he was on the premises;
(b)Failing to ensure that its employees and/or servants and/or agents carried out their duties without coming into physical contact with the Plaintiff;
(c)Exposing the Plaintiff to a risk of damage or injury of which it knew or ought to have known;
(d)Failing to properly supervise its employees;
(e)Failing to properly train its employees;
(f)Failing to refuse to continue to serve the Plaintiff alcohol as required by section 115(2)(a) of the Liquor Control Act 1988 and/or failing to require the Plaintiff to leave the premises as required by section 115(4)(a) of the Liquor Control Act each of which precautions would have reduced the likelihood of the accident occurring.
PARTICULARS OF NEGLIGENCE OF THE DEFENDANT'S EMPLOYEE FOR WHOM THE DEFENDANT IS VICARIOUSLY LIABLE
(a)Physically dragging the Plaintiff from the bar when it was unsafe to do so;
(b)Failing to warn the Plaintiff to move from the bar;
(c)Exercising undue and excessive physical force when inappropriate to do so."
In further and better particulars of claim the plaintiff pleaded that:
"The Defendant's employee pulled the Plaintiff backwards with such force as to cause the plaintiff to fall to the ground. The Plaintiff would consider the force used to be 'firm'."
The defendant denies that it was negligent or that its servants, employees or agents were negligent.
The defendant also pleads contributory negligence on the basis that the plaintiff consumed alcohol at the defendant's premises and was intoxicated at the material time. The defendant relies upon s 5L of the Civil Liability Act 2002 which raises a presumption that a drunken person is contributorily negligent unless he establishes on the balance of probabilities that his intoxication did not contribute in any way to the harm suffered by him.
The defendant further pleads by an amendment allowed by me at the commencement of the trial that the actions of the defendant by its employee Daniel John Edwards were lawful as provided for in s 250 of the Criminal Code in that at the material time he was acting in good faith in defending his fellow employee Leanne Margaret Bowdidge, alternatively lawful pursuant to s 254(c) of the Criminal Code and that pursuant to s 5 of the Criminal Code Compilation Act 1913, no action can be brought in respect thereof.
Plaintiff's evidence on liability
(a) Evidence of the plaintiff, Bradley James Weston
Mr Weston's evidence was that he was a regular customer of the Princess Road Tavern, attending the tavern at about the time of the incident two or three times per week.
Mr Weston stated that on 16 June 2005 he arrived at the tavern and was told that he could not play in the A‑grade dart competition. He said he argued with the officials for about five minutes. After protesting about his exclusion from the competition he went to the public bar area and sat at the bar with a friend, Mr Dean Meade. Mr Meade was seated immediately to the left of Mr Weston at the bar.
Mr Weston told Mr Meade about how Mr Weston had been excluded from the dart competition. Also, a B‑grade competition was being conducted in the tavern that night and a number of B‑grade competitors approached Mr Weston during the night inquiring as to why he was not playing in the A‑grade competition and he also explained to them what had occurred.
Mr Weston stated he had about 11 middies of full‑strength beer whilst seated in the public bar.
Mr Weston stated that later in the evening he started arguing with Mr Meade about hostilities that existed between Mr Meade and another mutual friend by the name of Kelvin. Mr Weston said whilst he was discussing this matter with Mr Meade, the barmaid, Mrs Leanne Bowdidge, interrupted and indicated that she was sick of Mr Weston talking about the hostilities between Mr Meade and the mutual friend Kelvin.
Mr Weston said that on being interrupted by Mrs Bowdidge he stood up on the foot rail at the base of the bar and started "jarring" her. By this he said he meant that he pointed at her and told her it was none of her business. He agreed that he spoke to her loudly. He said that he often became loud when he believed that someone was in the wrong and he was in the right.
Mr Weston said he only told Mrs Bowdidge to mind her own business on one occasion. The next thing he remembered was being on the ground with a painful leg. He said that as far as he was aware his foot got stuck in the tray at the base of the bar.
He said at the time that he was standing up on the tray at the base of the bar his friend Mr Meade was positioned immediately to his left. He did not see anyone else in the immediate vicinity.
After the incident Mr Weston said he tried to pull himself up using a nearby pool table but on getting to his feet he immediately collapsed. He was later taken by ambulance to hospital.
Under cross‑examination Mr Weston admitted that he had a history of being asked to leave the tavern. He could recall this occurring on at least two occasions when he had become loud and rowdy. He also admitted that he had been barred for one year from the Koondoola Tavern, but said this was related to an incident when he handed over some marijuana to a barmaid.
Mr Weston denied that at the time of the incident he was still complaining loudly about not being selected in the dart competition. He denied that he had been told to quieten down and he denied that the barmaid had refused to serve him further alcohol.
Mr Weston denied trying to grab the barmaid when he stood on the tray.
(b) Lindsey Ellen Connolly
Ms Connolly was in attendance at the Princess Road Tavern on 16 June 2005 to watch her boyfriend play competition darts that night. She had known Mr Weston for about nine years. She said she arrived at the tavern at about 6.30 pm to 7.00 pm. On arriving at the tavern she spoke to Mr Weston who told her how he had been excluded from the dart competition.
Ms Connolly said that during the evening she had about three to four glasses of wine whilst she watched her boyfriend playing darts. She said later in the evening she heard yelling from the public bar area and recognised the voice of Mr Weston. She went into the public bar area to see what the commotion was about. She observed that Mr Weston was yelling at the barmaid. She said he was yelling about being excluded from the dart competition and the barmaid was yelling back at him. She could not recall what the barmaid was saying.
Ms Connolly said she told Mr Weston to calm down a bit but he did not respond to this suggestion and continued yelling. She said she observed him stand up on the tray at the base of the bar and continue to yell at the barmaid and the barmaid was yelling back at him.
She said a friend of Mr Weston's came from the right‑hand side and put his hand on Mr Weston's shoulder and told Mr Weston to calm down. Again Mr Weston failed to respond and was still upset and yelling at the barmaid.
Ms Connolly then observed another person come to Mr Weston's right‑hand side, put his arm around Mr Weston's chest area and force Mr Weston backwards away from the bar. In doing so this person's fist made contact with Ms Connolly's lip causing injury.
She said as a result of the person putting his arm around Mr Weston and forcing him backwards, Mr Weston fell to the ground and immediately showed that he was in a lot of pain. She concluded that he had broken a bone in his ankle and she told him to remain still until an ambulance was called.
Under cross‑examination Ms Connolly denied that Mr Weston was trying to grab the barmaid. She denied that the yelling was about a conversation Mr Weston was having with his friend Mr Meade.
Ms Connolly stated that in her opinion the person had used more force than was necessary to pull Mr Weston off the bar. However, she agreed that Mr Weston had been asked by her and his friend Mr Meade to calm down but had failed to do so.
(c) Dianne Margaret Hutton
Mrs Hutton gave evidence that she was also at the tavern on the evening of 16 June 2005.
She said that during the course of the evening Mr Weston had complained to her about not being picked in the dart team.
At one stage in the evening she observed Mr Weston and the barmaid wagging their fingers at each other. She did not see the incident that occurred whereby Mr Weston was injured, but saw him after.
She said that she had observed Mr Meade sitting on the left‑hand side of Mr Weston at the bar when she observed Mr Weston and the barmaid having an exchange.
(d) Associate Professor David A Joyce
Professor Joyce is a qualified physician and pharmacologist.
Professor Joyce was presented with hospital records relating to the plaintiff (which were tendered by consent) which indicated that at 1.37 am on 17 June 2005 Mr Weston had a plasma alcohol level of 0.192 per cent. Plasma is the fluid component of blood and from this figure the blood alcohol level can be calculated on the basis of 85 per cent of the plasma alcohol level. This means that the blood alcohol level of Mr Weston was very close to 0.163 per cent at the time of testing.
A report of Professor Joyce dated 29 August 2008 was tendered into evidence. In this report Professor Joyce stated that he made a calculation to approximate what Mr Weston's blood alcohol level was at the time of the incident. He used a formula contained in s 71 of the Road Traffic Act 1974. The formula assumes that a person continues to absorb alcohol into his blood after the last drink at the rate of 0.016 per cent per hour for the first two hours and thereafter commences to eliminate alcohol at 0.016 per cent per hour. For the purpose of his calculation, Professor Joyce assumed that the incident occurred at approximately 22.47 hours (this was based upon hospital records that stated the ambulance was called at 22.47 hours) and assumed the last drink was shortly before the incident and therefore at approximately 21.30 hours. Applying the method contained in s 71 of the Road Traffic Act 1974 he then calculated the blood alcohol level at the time of injury as approximately 0.185 per cent. If the time of the last drink was taken as 21.00 hours, he calculated the blood alcohol level would be higher, approximately 0.201 per cent.
Professor Joyce's report then went on to indicate the sort of manifestations of intoxication that would be displayed by a person with high blood alcohol levels. He produced a table as follows.
| BAL | Phase | Manifestations |
| 0.09 – 0.25% | Excitement | Emotional instability; decreased inhibitions Loss of critical judgment Impairment of memory and comprehension Decreased sensory response: decreased response time Some muscular incoordination |
| 0.18 – 0.30% | Confusion | Disorientation, mental confusion; dizziness Exaggerated emotional state (fear, anger, grief, etc) Disturbance of sensation (double vision, etc) and of perception of colour, form, motion, dimensions Decreased pain sense Impaired balance; muscular incoordination; staggering gait, slurred speech |
Professor Joyce stated that a drinker with a tolerance to alcohol through habitual high alcohol use would be less likely to manifest signs in the "confusion" category, except perhaps the exaggerated emotional state.
(e) Mr Payam Toloo
The incident causing injury to Mr Weston was recorded on a video surveillance system at the tavern. Surveillance footage was initially recorded on a computer hard drive of the defendant and a DVD produced for the defendant's insurers. However, this DVD was later found to contain no images of the incident. The plaintiff tendered into evidence an expert report of a computer forensic examiner, Mr Payam Toloo, which provided a number of possible explanations of why a DVD download of the surveillance footage of the incident failed to show any images. The possible explanations offered by Mr Toloo include both deliberate and innocent erasure.
Defendant's evidence on liability
(a) Ilia Gastevski
Mr Gastevski is a director of the defendant company. At all material times the defendant company conducted the business of the Princess Road Tavern in Balga.
Mr Gastevski was not on duty on the night of Mr Weston's injuries. He learnt of the incident the next day and then viewed a video surveillance recording which showed the incident in the public bar.
Mr Gastevski said that he viewed the recording of the video surveillance on at least a dozen occasions over the next day and subsequent days. He also watched it in the presence of Mrs Leanne Bowdidge and Mr Edwards. He arranged for a DVD copy of the surveillance video to be burnt and sent this to his insurers. His insurers subsequently informed him that the DVD had been lost and requested a second copy. He burnt a second DVD, but subsequently learned that this did not produce any images of the surveillance. Efforts were then made to download a further copy but the original images on the hard drive could not be recovered. Accordingly, the defendant was unable to produce a copy of the surveillance recording to the Court.
Despite objection from the plaintiff's counsel, I allowed the defendant to lead evidence of what Mr Gastevski had observed on the video‑recording. This was on the basis that the best evidence was no longer available and therefore secondary evidence could be given as to what was recorded on the surveillance recording.
Mr Gastevski stated that he observed on the recording Mr Edwards, an employee of the tavern, approach Mr Weston, take hold of Mr Weston's upper arm. Mr Edwards then motioned with his other arm towards the door. Mr Gastevski said Mr Weston and Mr Edwards had a discussion for about 30 seconds. He said that Mr Weston then stepped up on to the tray at the base of the bar and was leaning over the bar so that the top half of his body was almost horizontal. He appeared to be lunging at the barmaid, Ms Bowdidge. He said Mr Weston had his hands out in front of him and was swinging them. He said both Mr Edwards and Mr Meade grabbed hold of Mr Weston and pulled him upright off the bar. He said Mr Weston stepped backwards, stepped on his own leg and fell.
Mr Gastevski said Mr Edwards had taken hold of Mr Weston by the right elbow and right shoulder. Mr Meade had taken hold of the back of Mr Weston's left shoulder. Mr Gastevski said his view of Mr Meade was partly obscured and he could not exclude the possibility that Mr Meade had his other arm on the front of Mr Weston in the chest area.
Tendered into evidence by the plaintiff were answers to interrogatories which were sworn by Mr Gastevski in an affidavit on 24 October 2007. Interrogatory 19 and the answer given were as follows:
"Interrogatory 19
Q.Describe the manner in which the Plaintiff was removed from the premises including particular details of:
(a)the manner (if any) that the Plaintiff was touched by an employee of the Defendant;
(b)the position (including whether standing, sitting, stooping, walking or otherwise) the Plaintiff was prior to any such touching.
A.I understand the Plaintiff was removed from the premises by ambulance officers and not by my employees. The ambulance was called by one of my employees, the Plaintiff was comforted until the ambulance arrived. I also understand either one of my employee's or a patron also called the Plaintiff's girlfriend, who arrived some time later.
(a)whilst the Plaintiff was attempting to mount the bar, I understand a patron put himself between the Plaintiff and the bar in an attempt to stop the Plaintiff from get (sic) to Ms Bowdidge. I understand the patron put his hand on the Plaintiff's chest and pushed him back in order to stop him from getting over the bar and at Ms Bowdidge. I understand it was following this initial push that an employee also grabbed the Plaintiff by his shirt.
(b)I understand the Plaintiff was in the process of mounting the bar to get to Ms Bowdidge at the time he was touched."
Under cross‑examination Mr Gastevski agreed that his recollection of what he saw on the surveillance recording would have been more accurate at the time he swore the answers to interrogatories. He said that the last time he saw the surveillance recording was a couple of weeks after the incident.
Mr Gastevski stated that he had not given Mrs Bowdidge any formal training of her obligations under the Liquor Control Act 1988, but she was an experienced barmaid and he believed she understood her obligations. He said there were informal discussions with staff on many occasions about situations that arise in the tavern including about when to refuse service of intoxicated patrons.
(b) Dean David Michael Meade
Mr Meade gave evidence on behalf of the defendant. He said that he was seated at the bar with Mr Weston on the evening of 16 June 2005. Mr Meade had about seven to eight middies of full‑strength beer that night.
Mr Meade recalled that Mr Weston had become angry about a dart competition matter. He agreed in cross-examination that he and Mr Weston had also argued that night about hostilities between Mr Meade and a mutual friend, Kelvin. He could not recall if the barmaid Mrs Bowdidge had become involved in this discussion.
Mr Meade stated he recalls Mr Weston and Mrs Bowdidge becoming involved in an argument. He recalls Mrs Bowdidge leave the bar area and return. On her return Mr Weston yelled something at Mrs Bowdidge and she yelled something back. He could not recall Mrs Bowdidge informing Mr Weston that Mr Weston would not be served any further drinks.
Mr Meade said that he observed Mr Weston stand up, step up on the tray at the base of the bar and motioned forward "a little bit" (T 87). Mr Meade thought that Mr Weston was about to climb over the bar. Mr Meade said that he stepped in between Mr Weston and the bar and pushed Mr Weston in the chest. He said the push put Mr Weston off balance and caused him to fall backwards. As he was falling backwards Mr Daniel Edwards also grabbed at him. Mr Meade stated that Mr Weston fell backwards to the floor with his foot caught in the tray at the base of the bar. Mr Meade said that he immediately said to Mr Weston "Sorry mate, I didn't mean to do that sort of thing" (T 87).
Under cross-examination Mr Meade said he was seated to the left of Mr Weston. He said that when he pushed Mr Weston in the chest, Mr Edwards was behind Mr Weston and appeared to be reaching out to take hold of Mr Weston's shirt.
(c) Leanne Bowdidge
Mrs Bowdidge has worked at the Princess Road Tavern for 11 to 12 years. On 16 June 2005 she started at 5.00 pm and was working in the public bar. She said that Mr Weston was in the bar and during the course of the evening had four to five Emu Export cans.
She said that Mr Weston was sitting at the bar with Mr Meade and they were having a discussion. She said the discussion was about a friend by the name of Kelvin. She said that Mr Weston was getting louder and louder and was causing a disturbance in the bar area. She asked him to quieten down on a number of occasions but he failed to do so. She then went and saw Mr Edwards who was in charge that night and was working in the bottle shop. She went to explain that Mr Weston was getting louder and she wanted to refuse him service.
Mrs Bowdidge went back into the public bar area and told Mr Weston that his drinks were "cut off". She also thought she removed a can he was drinking from the bar. She said Mr Weston then lunged over the bar at her. She said she was scared and startled when Mr Weston reached out across the bar. She stepped back so that she was about 2 metres away from him with her back against a refrigerator. She said Mr Edwards came out of the bottle shop area and took hold of Mr Weston and pulled him back. She could not recall Mr Meade being involved in removing Mr Weston from the bar.
Under cross-examination Mrs Bowdidge said she had told Mr Weston that he would not be served any further drinks immediately prior to Mr Weston lunging across the bar. She could not explain why in an interrogatory answered by Mr Gastevski it was stated that:
"I understand Ms Bowdidge had decided not to serve the Plaintiff any more alcohol approximately 30 to 60 minutes prior to him attempting to jump the bar."
Mrs Bowdidge agreed Mr Weston was not staggering about but was seated at the bar. She could not recall if he was slurring his words.
She agreed that she had known Mr Weston for some time and that he had not previously climbed over the bar or attacked her.
(d) Daniel John Edwards
Mr Edwards was the night manager in charge of the tavern on the night of 16 June 2005.
Mr Edwards stated that prior to the incident involving Mr Weston Mrs Bowdidge had come out to the bottle shop and said that she was going to cut off the drinks of Mr Weston.
Mr Edwards stated that some time later another barmaid came out and told him he was needed in the public bar area. He said he walked in to the public bar area from behind the bar. At that point he was about 5 metres away from Mr Weston. He observed Mr Weston leaning across the bar trying to grab at Mrs Bowdidge. Mr Edwards said he walked around to Mr Weston's side of the bar and grabbed him by the shirt using both hands and pulled him away from the bar. He described the amount of force as "a quick, short, sharp tug off the bar" (T 117). He said Mr Weston came backwards, and then fell over. He said that as Mr Weston came backwards Mr Edwards stepped out of the way.
Mr Edwards could not recall saying anything to Mr Weston before he grabbed him. He said he did not think there was any point in speaking to Mr Weston as he did not believe he would listen. He said he did not believe it was appropriate to ask Mr Weston to leave before taking hold of him. He was confronted with a physical situation and needed to act quickly. He believed that Mr Weston was trying to get at the barmaid. He said he did not consider whether he needed to be careful in case Mr Weston might fall over as he was more concerned with getting Mr Weston off the bar and away from the barmaid.
Findings of fact on liability
1.I find that Mr Weston on 16 June 2005 was in an aggressive mood whilst at the Princess Road Tavern. Initially he was angered by not being included in a dart competition and then later commenced to argue with Mr Meade about hostilities between Mr Meade and a mutual friend by the name of Kelvin. I find that as the evening progressed he became progressively intoxicated and loud.
2.I find that he was told to quieten down by the barmaid, Mrs Bowdidge, but failed to do so.
3.I find that Mrs Bowdidge reasonably concluded that Mr Weston's behaviour was unacceptable and he was also becoming intoxicated to the point that he should be refused service. Accordingly she informed Mr Edwards, the night manager, she intended to refuse further service to Mr Weston.
4.I find that after speaking to Mr Edwards, Mrs Bowdidge informed Mr Weston that he would not be served any further drinks and also removed from him a can of beer which he was consuming at the time. I prefer her evidence on this issue to that of Mr Weston and Mr Meade who were both affected by alcohol. Mrs Bowdidge's evidence is consistent with the evidence of Mr Edwards of her discussing with him her wish to refuse service to Mr Weston. Further, this is consistent with Mr Meade's evidence that he observed Mrs Bowdidge leave the bar area for a short time.
5.I find that Mr Weston became angry by being told that he was no longer going to be served and began yelling at Mrs Bowdidge. I find Mr Weston stood up on a tray at the base of the bar.
6.I find that after Mr Weston stood on the tray at the base of the bar he leant over the bar lunging at Mrs Bowdidge. This is consistent with the evidence of Mr Gastevski (of what he saw on the video surveillance recording), Mrs Bowdidge and Mr Edwards. I believe it is also largely consistent with Mr Meade's evidence that Mr Weston motioned himself forward. I also infer that Mr Weston stood on the tray at the base of the bar to give him greater elevation so as to assist him leaning across the bar. I reject the evidence of Mrs Connolly that Mr Weston did not lean across the bar. I believe her evidence is against the weight of evidence indicating the contrary. Also I find other aspects of her evidence unreliable (which I will detail later in this decision) and conclude she is not a reliable witness as to what occurred.
7.I find that at the time Mr Weston leaned across the bar he was reaching out with his arms. Regardless of whether he was intending to grab Mrs Bowdidge, I find that she was frightened by what might occur if he proceeded over the bar.
8.I find that at about this time both Mr Meade and Mrs Connolly, both friends of Mr Weston, tried to persuade him to calm down but he ignored them.
9.I find that Mr Edwards entered the public bar on the staff side of the bar and observed from about 5 metres away Mr Weston leaning across the bar reaching out at Mrs Bowdidge. I find that he had an honest and reasonable belief that Mr Weston might climb over the bar and attack Mrs Bowdidge.
10.I find that Mr Edwards was an honest and reliable witness. In my opinion he had a good recollection of what occurred. I infer that as the manager on duty he was sober. In accordance with his evidence I find that Mr Edwards advanced to the patrons' side of the bar and immediately grabbed Mr Weston by the back of his shirt and pulled him back off the bar with a short sharp tug. He did this because he was concerned Mr Weston was trying to attack Mrs Bowdidge. His evidence was largely consistent with Mr Meade's evidence. I find that at the same time as Mr Weston was being pulled back upright and away from the bar by Mr Edwards, Mr Meade stepped in front of Mr Weston and also pushed Mr Weston in the chest.
11.I reject the evidence of Mr Gastevski and Ms Connolly as to the manner in which Mr Weston was pulled off the bar. Mr Gastevski's evidence was contrary to the answers he swore to interrogatories. Further, his evidence of Mr Edwards speaking to Mr Weston for about 30 seconds before pulling him away from the bar is contrary to the accounts of other witnesses. I reject the evidence of Mrs Connolly who had been drinking that evening how Mr Weston was removed from the bar. Her evidence that Mr Meade was on the right‑hand side of Mr Weston is contradicted by the evidence of Mr Weston, Mr Meade and Mrs Hutton, that Mr Meade was situated on the left‑hand side of Mr Weston.
12.I find that as Mr Weston was pulled up and away from the bar by Mr Edwards, Mr Meade almost instantaneously was able to position himself to push Mr Weston in the chest. I conclude it was the added force of this push which caused Mr Weston to lose balance with his foot somehow getting caught up in the tray at the base of the bar. This is consistent with Mr Meade's evidence that he immediately accepted responsibility for what occurred. How Mr Weston's foot got caught up in the tray at the bottom of the bar is not entirely clear but I find as a result of the additional force applied by Mr Meade and Mr Weston's foot being caught in the tray Mr Weston fell to the ground and in doing so fractured his leg.
13.I find the amount of force used by Mr Edwards was appropriate in the circumstances and by itself would not have been sufficient to have caused Mr Weston to fall.
The law
It is trite law that in order to establish an entitlement for damages the plaintiff must establish a duty of care, a breach of duty of care and as a result of the breach of duty of care loss and damage was caused to the plaintiff.
(a) Duty of care
In this case the pleadings of the plaintiff raise a number of alleged duties of care which can be summarised as follows:
(i)a duty of care on the part of the defendant's employee, Mr Edwards, to exercise reasonable care in restraining the plaintiff;
(ii)a duty of care of a licensee's staff to refuse to continue to serve a patron alcohol as required by s 115(2)(a) of the Liquor Licensing Act 1988 (incorrectly referred to in the statement of claim as the Liquor Control Act 1988) or failing to request the plaintiff to leave the premises as empowered by s 115(4)(a) of the Liquor Licensing Act 1988 so as to reduce the likelihood of the accident occurring;
(iii)a duty of care on the part of the defendant to train and supervise its staff so as to avoid harm to the plaintiff.
The third of these duties of care is subsumed into the alleged duties of care (i) and (ii) above as the allegation of lack of training or supervision is related to the alleged breaches of duty of care on the part of the staff of the defendant.
In Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 194 ALR 337 at 336, McHugh J warned against formulating a duty of care in specific terms. In this matter it is not in dispute that the defendant's servants were under a general duty of care to exercise reasonable care in applying force to Mr Weston to remove him from the surface of the bar. This general duty of care is encapsulated in the particulars of negligence pleaded by the plaintiff alleging negligent conduct on the part of the defendant's employee, Mr Edwards.
In relation to the second of the above alleged duties of care, the common law has been reluctant to recognise a duty of care on the part of an owner of licensed premises to protect patrons against their own intoxication.
The nature and scope of the duty of care of a licensee was considered by the High Court in the case of Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469 which concerned the question of liability of a licensee for harm suffered by an intoxicated patron after the patron had left licensed premises. The extent of the liability of the licensee was the subject of different views by the members of the High Court. Gleeson CJ, after commenting that intoxicated people were generally responsible for their own actions, concluded at [17] by stating as follows:
"It is possible that there may be some circumstances in which a supplier of alcohol comes under a duty to take reasonable care to protect a particular person from the risk of physical injury resulting from self-induced intoxication. However the appellant cannot succeed in this case unless there is a general duty upon a supplier of alcohol, at least in a commercial setting, to take such care. I do not accept that there is such a general duty."
Gummow and Haynes JJ concluded that they did not need to decide the extent of the duty of care owed by a licensee because in the factual circumstances of the case before them they did not believe there was any breach of a duty of care. Callinan J took the same view as Gleeson CJ, that in general vendors of products containing alcohol would not be liable in tort for the consequences of the voluntary excessive consumption of those products by a patron. Both McHugh and Kirby JJ held that the duty of care extended to protection from injury from all activities on the licensed premises including the sale of alcohol and drink and held in the factual circumstances before the court that there had been such a breach of duty of care.
Section 115(2) of the Liquor Licensing Act 1988 (as the relevant legislation was named at the date of Mr Weston's injury) provided that a person shall not on a licensed premises "sell or supply liquor … to a drunken person".
A "drunken person" was defined in s 115(3) as follows:
"A person is drunken for the purposes of this Act if the person's speech, balance, coordination or behaviour is noticeably affected by alcohol."
Section 115(4)(a) of the Liquor Licensing Act 1988 gave power to a licensee and his staff to remove certain persons from the licensed premises, including a person who is drunk. However, it created no obligation to do so.
Whatever the scope of s 115(2)(a) and s 115(4)(a) of the Liquor Licensing Act 1988, it is not argued in this matter that a cause of action existed as a result of a breach of a statutory duty. The cause of action pleaded in these proceedings is one of negligence.
As later set out in this decision, I find that the defendant's staff had not been in breach of any duty of care by failing to refuse service of alcohol to Mr Weston (prior to Mrs Bowdidge refusing service) or asking him to leave. In view of this finding, there is no need for me to consider the scope of the duty of care of a licensee not to supply liquor to a customer or to ask him to leave. Such issues are difficult given the divided opinion of the High Court in the South Tweed Heads Rugby Football Club case.
(b) Breach of duty of care
When considering whether there has been a breach of the defendant's duty of care consideration needs to be given to the provisions of the Civil Liability Act 2002 ("the CLA") which came into operation in respect of harm giving rise to a claim happening on or after 1 December 2003 (see s 5A of the CLA). Both parties referred to the provision of the CLA in their closing submissions on the issues of contributory negligence and assessment of damages. However neither the plaintiff nor the defendant in their pleadings or submissions made any reference to the CLA in relation to issue of liability.
The starting point on whether the defendant is liable for the injuries suffered by the plaintiff is a consideration of the legislative provisions (see Neindorf v Junkovic [2005] HCA 75, Kirby J at [42]).
The liability for negligence is subject to s 5B of the CLA which provides as follows:
"5B General principles
(1)A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless —
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known);
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) —
(a)the probability that the harm would occur if care were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity that creates the risk of harm."
In Waverley Council v Ferreira [2005] NSWCA 418 at [27] Ipp JA held that s 5B of the Civil Liability Act 2002 (NSW), which is in the same terms as s 5B of the Act, was consistent with the common law pursuant to which a court was also required to identify what a reasonable person in the position of the defendant would have done by way of response to a reasonably foreseeable risk. Ipp JA further pointed out at [45] that the matters set out in s 5B(2) of the Civil Liability Act 2002 (NSW) were, in substance, a reiteration of the remarks by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 – 48. These remarks, often referred to as the Shirt formula, are as follows:
"In deciding whether there has been a breach of duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of risk and its degree of probability remain to be considered with other relevant factors." (my emphasis)
In Roads & Traffic Authority of New South Wales v Dederer & Anor [2007] HCA 42 Gummow J at par 69 stated as follows:
"What Shirt requires is a contextual and balanced assessment of the reasonable response to a foreseeable risk. Ultimately, the criteria is reasonableness, not some more stringent requirement or prevention."
In the decision of Carpenter & Anor v Hinkley [2008] WADC 161, her Honour Judge Schoombee dealt with the issue of the relationship of s 5B of the CLA and the common law duty of care. After reviewing the authorities her Honour persuasively concluded at [79] that it seems that s 5B(1)(b) of the CLA imposes a higher test for the foreseeability of risk than the common law by making the risk "not insignificant" rather than a risk that was "not far‑fetched or fanciful". However, for the purposes of this case I do not need to reach a conclusion on this issue.
Conclusions
1.I find that the defendant and/or its servants had not been in breach of any duty of care by negligently serving Mr Weston alcohol up until when he was refused service and were under no duty to remove him from the premises. There is no evidence that Mr Weston was creating any undue disturbance in the bar area until Mrs Bowdidge became concerned that he was becoming louder and unruly and refused him further service. There is no evidence that he was slurring his speech or staggering about or manifesting any other signs of intoxication which might cause injury to him.
2.I find that on 16June 2005 the defendant's staff were fully aware of their obligations under the Liquor Licensing Act 1988 not to serve patrons who were intoxicated. Further, that the decision of Mrs Bowdidge to refuse service of drinks to Mr Weston was in accordance with her obligations under the Liquor Licensing Act 1988. I am not persuaded that Mrs Bowdidge ought to have refused service any earlier than she did.
3.In relation to the issue of whether Mr Edwards ought to have warned Mr Weston before pulling him away from the bar, I am satisfied Mr Edwards was under no duty to do so in the circumstances of this case. Given the imminent possibility of Mr Weston climbing over the bar and harming Mrs Bowdidge, it was appropriate for Mr Edwards to intervene immediately without warning and grab Mr Weston by the back of the shirt and pull him backwards.
4.I find that the amount of force used by Mr Edwards was reasonable in the circumstances. The conflicting responsibilities for Mr Edwards included the responsibility he needed to remove Mr Weston from his position over the bar and remove the threat to the barmaid Mrs Bowdidge. I believe that grabbing Mr Weston by the shirt with two hands and pulling him back away from the bar with a "quick, sharp tug" carried only a very remote risk of injury to Mr Weston. I conclude that the risk of injury to Mr Weston by the amount of force applied by Mr Edwards was not significant and was far‑fetched. I conclude that Mr Weston would not have been injured if Mr Edwards had simply pulled him back as he did. The intervening factors which caused the injury were the additional force applied by Mr Meade pushing Mr Weston and Mr Weston getting his foot caught in the ashtray causing him to overbalance backwards. Neither of these two intervening acts was reasonably foreseeable given the short space of time and the situation that Mr Edwards was confronted with. In the circumstances, which required quick physical intervention by Mr Edwards to remove Mr Weston from the bar, I conclude that Mr Edwards was not negligent and not in breach of his duty of care to Mr Weston.
5.In view of my findings that there was no breach of duty of care by failing to refuse Mr Weston alcohol earlier or failing to remove him from the premises; nor that Mr Edwards was in breach of any duty of care by grabbing hold of Mr Weston and pulling him backwards off the bar, there is no substance to the further allegations contained in the pleadings that the defendant was negligent by failing to properly supervise its employees or properly train its employees.
Accordingly, I find that none of the alleged grounds of negligence have been established and I dismiss the plaintiff's claim.
Criminal Code defences
The defendant also raised a defence on the grounds that the actions of Mr Edwards were lawful acts under s 250 and s 254 of the Criminal Code. In view of my findings on liability above I need not consider these defences. However, I make the following observations. The pleading relies upon s 5 of the Criminal Code Act 1913 (incorrectly described in the pleading as the Criminal Code Compilation Act 1913).
Section 5 of the Criminal Code Act 1913 relevantly states as follows:
"When, by the Code, any act is declared to be lawful, no action can be brought in respect thereof."
Mr Clyne, appearing on behalf of the defendant, referred me to the decision of Meeks v Kirkham [2000] WASCA 94. Meeks' case involved a claim for damages for assault. Kennedy J (with whom Ipp and Wallwork JJ agreed) found that s 254 of the Criminal Code, which provided that it was lawful for a person peaceably in possession of any place to use such force as is reasonably necessary, provides potentially a defence to a damages claim for an assault.
The High Court in West Australian Newspapers Ltd v Bridge and Tozer (1979) 141 CLR 535 considered the question of whether defences provided for in the Criminal Code to criminal defamation were available as a defence to a civil action for defamation. The High Court was divided on this question. Barwick CJ, Jacobs and Stevens JJ ruled that it was not available. Gibbs and Aickin JJ dissented and said it was available.
Barwick CJ at [9] stated as follows:
"It is plain to my mind from the terms of section 5 of the Act that the provisions of the common law as to defamation are not to be impinged upon by the Act or the Code except insofar as 'by the Code, any act is declared to be lawful', in which event no action can be brought in respect of the performance of that act. Section 5 thus segregates the civil law of defamation from the criminal law of defamation except in those cases in which an act is declared, and as I think, specifically declared, by the Code to be lawful. Such a declaration by the Code precludes action at law in respect of the act so declared to be lawful."
In my opinion it is significant that in Meeks' case the cause of action was a claim for damages for the assault itself which it was argued was excused under s 254. Here the claim is not for damages for assault but damages for negligence. This is a wider issue and in my opinion the defences available for an assault may not necessarily provide a defence to a claim for damages for negligence. However, without any direct authority on the issue, the law remains somewhat uncertain. As stated above it need not be resolved by me in this decision.
The defendant also relies on s 254 of the Criminal Code. Section 254 of the Criminal Code is not relevant. Section 254 relates to lawful acts conducted to remove a person from premises. There is no evidence that the actions of Mr Edwards were related to removing Mr Weston from the premises.
Provisional assessment of damages
As a result of his fall, the plaintiff was taken by ambulance to Sir Charles Gairdner Hospital. X-rays were taken which showed a spiral fracture of the distal third of the right tibia and a fracture of the proximal right fibula.
On 17 June 2005 a right tibial nail was inserted. Mr Weston was discharged from hospital on 21 June 2005, walking on crutches. He was reviewed at the outpatients' clinic on 20 June 2005, 28 July 2005, 8 September 2005 and 1 December 2005. On examination on 1 December 2005 it was ascertained that his fracture was fully united.
The plaintiff has a small scar near his kneecap on his right leg as a result of the insertion of the pin in his leg.
Mr Weston was seen by his local general practitioner, Dr Chee Meng Chang, on 25 March 2006. Dr Chang was called as a witness for the plaintiff. In his evidence Dr Chang stated that Mr Weston requires painkillers intermittently. Dr Chang believes that ongoing pain experienced by Mr Weston is due to the metalware in his leg and he has referred Mr Weston back to Sir Charles Gairdner Hospital to consider whether the metal pin should now be removed. Dr Chang believes that Mr Weston will require further appointments for renewal of prescriptions for painkillers until he is reviewed by a specialist at Sir Charles Gairdner Hospital. Dr Chang anticipated that the recommendation will be for the pin to be removed and once this occurs, no further consultations or painkillers will be required.
Dr Chang has seen Mr Weston on 23 March 2006, 30 May 2006, 9 November 2006, 4 December 2006, 2 May 2007, 26 June 2007, 15 August 2007, 13 November 2007 and 5 May 2008.
Mr Weston in his evidence stated that for the first six months his leg was "really painful". For the first two months he had to keep his leg elevated. For the first 12 months it caused him pain when standing for long periods such as when he was working as a traffic controller. Mr Weston said that he presently experiences pain in the leg about once or twice a week. He also experiences pain after breakdancing which he does when he has been drinking.
The plaintiff claims damages under three headings:
(i)non-pecuniary loss;
(ii)special damages;
(iii)future medical expenses.
(a) Non-pecuniary loss
Non-pecuniary loss covers in this case:
(i)pain and suffering;
(ii)loss of amenities of life;
(iii)loss of enjoyment of life;
(iv)bodily harm
(see s 9(4) of the Civil Liability Act 2002).
I assess the entitlement for non-pecuniary loss to be $30,000. This is subject to a deduction under s 9(2) of the Civil Liability Act 2002 of $15,500 which reduces the amount to $14,500.
(b) Future medical expenses
The allowance for future medical expenses needs to cover the probability of further surgery, ongoing consultations and medications. I conclude that Mr Weston is likely to have a further operation to remove the metal pin from his right leg. On the basis of Dr Chang's evidence I conclude that it is likely that following this operation he will no longer require regular consultations or prescribed medication. No evidence was presented as to the costs of the anticipated operation but doing the best I can on the evidence available, I allow $3,500 for future medical expenses.
(c) Special damages
Special damages have been agreed at the amount of $1,033.80.
Summary of provisional assessment of damages
On the basis of the above the total provisional assessment of damages is:
Non-pecuniary loss $14,500.00
Future medical expenses $ 3,500.00
Special damages $ 1,033.80
Total$19,033.80
The purpose of the provisional assessment of damages is to cover the situation where, if my decision on liability is varied on appeal, that the matter need not be remitted back to the District Court for assessment of damages. However, any assessment of damages needs to take into consideration an adjustment for contributory negligence.
Section 5K and L of the Civil Liability Act 2002 provide as follows:
"5K. Standard of contributory negligence
(1)The principles that are applicable in determining whether a person is liable for harm caused by the fault of the person also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2)For that purpose –
(a)the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and
(b)the matter is to be determined on the basis of what that person knew or ought to have known at the time.
5L.Presumption if person who suffers harm is intoxicated
(1)This section applies when it is established that the person whose harm is the subject of proceedings for the recovery of damages for that harm was intoxicated at the time of the act or omission that caused the harm.
(2)This section does not apply in a case where the court is satisfied that the intoxication was not self‑induced.
(3)If this section applies, it is to be presumed that the person was contributorily negligent unless the plaintiff establishes, on the balance of probabilities, that the person's intoxication did not contribute in any way to the cause of the harm.
(4)In this section –
intoxicated means affected by alcohol or a drug or other substance capable of intoxicating a person to such an extent that the person's capacity to exercise reasonable care and skill is impaired."
I find that Mr Weston at the time of his fall he was intoxicated within the meaning of s 5L(4) of the Civil Liability Act 2002. Accordingly, pursuant to s 5L(3) of the Act he is presumed to have been contributorily negligent. Further, I find that Mr Weston has not established on the balance of probabilities that his intoxication did not contribute in any way to the cause of the harm suffered by him. In fact I find the opposite. His state of intoxication contributed to his harm by firstly leading to the need for him to be physically restrained and removed from the bar and, further, it contributed to him losing his balance which caused him to fall. Accordingly, any award of damages will need to be adjusted for contributory negligence.
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