Wormald v Caftor Pty Ltd trading as Mooseheads Bar and Café
[2012] ACTSC 97
•15 June 2012
Wormald v Caftor Pty Ltd trading as Mooseheads Bar and Café
[2012] ACTSC 97 (15 June 2012)
TORTS – Assault and battery – plaintiff injured whilst being forcibly removed from defendant’s premises – plaintiff fell off platform whilst being escorted out of defendant’s premises by defendant’s security officer – whether security officer justified in removing plaintiff – whether force used excessive
NEGLIGENCE – Whether security officer was negligent – whether need to warn of foreseeable risk – whether risk obvious – conflicting responsibilities – whether any contributory negligence by plaintiff – whether plaintiff’s intoxication contributed to his injuries
DAMAGES – Assessment – Griffiths v Kerkemeyer damages – whether allowance should be made for gratuitous assistance in caring for plaintiff’s pet – damages for future loss of earning capacity
STATUTORY INTERPRETATION – Law Reform (Miscellaneous Provisions) Act1955 (ACT) s 33 – meaning of “members of the household” – whether pets included
Interpretation Act 1967 (ACT), s 11A
Law Reform (Miscellaneous Provisions) Act1955 (ACT), ss 15, 33
Law Reform (Miscellaneous Provisions) (Amendment) Act (No 2) 1991 (ACT)
Legislation Act 2001 (ACT), s 139
Liquor Act1975 (ACT), s 143
Law Reform (Miscellaneous Provisions) (Amendment) Bill (No 2) 1991 (ACT), Presentation Speech, 17 October 1991
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Burnicle v Cutelli [1982] 2 NSWLR 26
Donald v McKeown [2004] NSWCA 285
Geaghan v D’Aubert (2002) 36 MVR 542
Graham v Baker (1961) 106 CLR 340
Griffiths v Kerkemeyer (1977) 139 CLR 161
Grincelis v House (2000) 201 CLR 321
Hodges v Frost(1984) 53 ALR 373
Kopp v Pigram [2003] QSC 248
Malec v JC Hutton Pty Ltd (1990) 169 CLR 63
McLean v Tedman (1984) 155 CLR 306
Platt v Nutt (1988) 12 NSWLR 23
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529
State of New South Wales v Riley (2003) 57 NSWLR 496
Sullivan v Gordon (1999) 47 NSWLR 319
Vairy v Wyong Shire Council (2005) 223 CLR 422
Wyong Shire Council v Shirt (1980) 146 CLR 40
No. SC 59 of 2004
Judge: Katzmann J
Supreme Court of the ACT
Date: 15 June 2012
IN THE SUPREME COURT OF THE )
) No. SC 59 of 2004
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:ALLAN WORMALD
Plaintiff
AND:CAFTOR PTY LTD
(ACN 008 598 089) trading as
MOOSEHEADS BAR AND CAFE
Defendant
ORDER
Judge: Katzmann J
Date: 15 June 2012
Place: Canberra
THE COURT ORDERS THAT:
There be judgment for the plaintiff in the sum of $889,418.
The defendant pay the plaintiff’s costs.
Allan Wormald will never forget his 35th birthday. On that day his life took a significant turn for the worse after a security officer forcibly removed him from the Moooseheads bar, an establishment on London Circuit owned by the defendant (“Caftor”).
Mr Wormald claims he was pushed by the officer, causing him to fall to the ground with the officer on top of him. As a result, he says he fractured his left femur and dislocated his left hip. He now sues Caftor for damages, alleging that his injuries were caused by the negligence of the officer and/or his assault and battery. Although Caftor accepts it is liable for the torts of the officer, whom it employed, it denies he was negligent and maintains that the officer was entitled to remove Mr Wormald, using no more force to do so than was reasonably necessary. If, on the other hand, it is found to be liable, Caftor pleads contributory negligence and asks for damages to be apportioned.
Mr Wormald alleges that he has continuing problems with his hip and, to a lesser extent his back, and developed an adjustment order with depressive elements. His earning capacity has been curtailed and he has required assistance with domestic chores.
There is little dispute about the nature and extent of the harm sustained to Mr Wormald as a result of the unfortunate events but there is a substantial dispute about what happened at the bar before and during his removal.
On the question of liability the following issues arise for consideration:
(1)What actually happened that night?
(2)Was Mr Wormald’s removal from the premises justified in the circumstances?
(3)Did the officer use excessive force/was the officer negligent?
(4)If so, were the injuries to Mr Wormald caused by Caftor’s tort?
(5)If so, was Mr Wormald guilty of contributory negligence?
What actually happened that night?
On the evening of 20 November 2001 Mr Wormald went out to celebrate his 35th birthday. He was accompanied by his friend and business partner, Brendan Plunkett, Brendan’s friend, David Schilg, and Brendan’s nephew, Timothy Whitehead. First they went to the Labor Club in Belconnen, arriving at about 8 pm. There, they watched a show and drank alcohol for about two and a half hours. They then went to Mooseheads. At Mooseheads, they continued to drink alcohol until they left. Mr Wormald was drinking schooners of beer. At the Labor Club he had four schooners. After the accident he told ambulance officers and hospital staff he had drunk about ten that night.
After Mr Wormald was removed from Mooseheads, the four men hailed a taxi and Mr Wormald, Mr Plunkett and Mr Whitehead disembarked at the home of Mr Plunkett’s mother. It was from there that Mr Plunkett called an ambulance and Mr Wormald was taken to Canberra Hospital, where he underwent surgery.
Thus far, the evidence is not in dispute. But there are stark differences between the accounts given by Mr Wormald and the witnesses called on his behalf and those given by Caftor’s witnesses.
Mr Wormald said that he and his companions arrived at the Mooseheads bar at around 11 pm or 11.30 pm. After entering the bar, the four men continued to socialise and drink beer. Mr Whitehead played pool. Mr Wormald said he could not remember whether he had, too.
At some indeterminate time Mr Wormald said he saw two men at a pool table yelling at Mr Whitehead, one of whom punched him several times in the face and head. Mr Whitehead was then approached by a security officer and led out of the premises. He said the men around the pool table resumed their game or set up another and the security officer returned to the bar area. He said he saw the security officer laughing with the men who had been playing pool. He said he thought that was unfair, so he went up to the men and asked them why they struck “Timmy” and they told him “to fuck off and mind [his] own business”.
At that point Mr Wormald said he lifted the pool table a couple of inches upsetting the balls. He said he was then approached by the security officer and told to leave the premises. He said the officer said to him: “you can get going, too”. Mr Wormald said he replied: “no worries, you’re a pack of dogs anyway”. He said he swore at the men, at which time the security officer grabbed him by the right arm and proceeded to march him out of the establishment. He said that the security officer stood behind him to his right side with his left hand on his back between his shoulder blades and his right hand on his right arm. He said they moved at a regular walking pace until they got closer to the front doors, when the officer “increased the pace in such a way that [he] fell with [the officer] on top of [him]”. Mr Wormald said he was not conscious of the floor in front of him just before the fall; he was looking at the door when suddenly there was no floor there. He said “at my accelerated pace I was leaning – I was leaning forward because of the push”. He said the increasing pace caused him to lose his balance as he was slightly forward. He said the security officer, maintaining his hold, “rode” him to the ground. He landed to his left side on his hip and pelvis with the security officer on top of him. The security officer then stood up over him. He said his friends pushed the officer to the side so they could pick him up. He was unable to move. He tried to get to his feet, got half way up, but when he put weight on his left leg “there was nothing there”. He had no strength; “it was like jelly”. He said he was in intense, excruciating pain in the area of the left hip. He said his friends grabbed him by the arms, pulled him to his feet, told him to stand up but he was unable to do so. Consequently, they had to carry him out and so he left the premises with Mr Plunkett on one side and Mr Schilg on the other, he with his arms around their shoulders.
In cross-examination Mr Wormald admitted that he was not sober. He described himself as “slightly” intoxicated.
Mr Wormald’s account is consistent with a “record of conversation” conducted by police on 27 November 2001, six days later, when Mr Wormald was in hospital. The tape-recorded conversation was not tendered in evidence but a case summary report compiled by the Australian Federal Police recorded the following account:
Mr WORMALD… stated that he had got upset when bouncers had remove[d] a friend (Timothy WHITEHEAD) from the bar and as a result lifted up the side of a pool table. Security staff then commenced removing WORMALD from the bar by taking hold of his arm and leading towards the entry of the premises. While leading him towards the door WORMALD stated that he was lead (sic) from behind at a quick pace via a flight of 3 steps. At that time WORMALD can only remember a force against his back and falling to the floor at the base of the steps with a bouncer laying on top of him. WORMALD then remembers being carried from the bar by some friends who took him to a premises in Kambar. WORMALD stated that at that time he was unable to walk.
Mr Wormald’s account was also corroborated by the evidence of his three companions.
Mr Plunkett said he saw part of an incident involving Mr Whitehead. He said there was a “wrestle” with another patron. He said he saw the other person try to hit Mr Whitehead and before he knew it, the bouncer was there removing Mr Whitehead from the premises. He said he then saw the bouncer speaking to Mr Whitehead’s assailant and laughing. At that point, Mr Wormald, who had been standing close by him, went up to the pool table and tilted it, so that the balls rolled down. He said the bouncer then came up and grabbed Mr Wormald with his right hand on his right upper arm and his left hand holding on to him at the back of his shirt in the area of his upper spine. He demonstrated the hold for the Court. He continued:
And then he kept walking him at a fair pace and Allan was just going with it. Then before you knew it, Al just disappeared, like fell, and the actual bouncer fell on top of him as they went down around the stairs. So he’s basically just walked him straight off the stairs and he didn’t stop.
Mr Plunkett’s evidence was that there were at least two, if not three, stairs, but they were not very high.
Mr Plunkett said that as soon as he saw what had happened, he went up and pushed the bouncer away, telling him to leave his friend alone; “he’s hurt”. He described the bouncer’s position as threatening. Then he and Mr Schilg grabbed Mr Wormald and assisted him out of the bar into the street. He said he was unable to walk (without assistance).
Mr Plunkett was unshaken in cross-examination. He frankly admitted he had had too much to drink and conceded he was drunk. Nevertheless, he appeared to have a good memory of the critical events.
Mr Schilg saw Mr Wormald and other pool players arguing, Mr Wormald lifting the pool table and an ensuing scuffle. From a few metres away, he also saw the bouncer grab hold of Mr Wormald, “twist his arm up” and start to march him out. At this point, Mr Schilg approached the bouncer and asked him to “take it easy”. He said the bouncer responded “he’s got to go”. Mr Schilg said “yes, no worries” and followed the bouncer and Mr Wormald out. He described the bouncer as having Mr Wormald “in control”, “a bit like a puppet”, and he did not observe Mr Wormald resist or struggle. He said the bouncer was “hurrying” Mr Wormald at a brisk walking pace. From about two metres directly behind them, he watched them become entangled in each other and trip and fall on the landing below, with the bouncer falling on top of Mr Wormald. Mr Schilg also recalled there being at least two or three stairs.
In this he, Mr Plunkett and Mr Wormald may well be mistaken. No photographs were tendered of the bar area. It was destroyed by fire the following year. The most reliable evidence comes from the police report, as the police inspected the premises shortly after the accident. They recorded that the pool table area of the premises was raised by about six inches from the rest of the bar area. Consequently, it seems likely that Mr Wormald fell from a six-inch platform onto the floor below. That circumstance alone may account for why Mr Wormald did not see the step before he fell.
Mr Whitehead gave evidence that whilst he was playing pool with Mr Wormald, another pool player took offence and tried to punch him, brushing his nose. The bouncer then asked him to leave and he did so. About ten minutes later, through the window, he saw Mr Wormald lift up a corner of the pool table. He then saw the bouncer grab Mr Wormald, take him through the middle of Mooseheads at a brisk walking pace, push him from behind over the step and fall straight on top of him. Mr Whitehead said he was about five to six metres away from where this happened.
The “bouncer”, Steven Vosnakes, gave an altogether different account. In his evidence in chief he said that, after he had escorted one person out the door, he turned around and saw a man holding a pool cue in the air as a weapon, like a javelin. He said he went straight over to the man, grabbed him and took the pool cue from him. He said he asked him to leave and he was willing to go. He said he had one hand on his back. But then the man picked up a pool ball and turned around as if wanting to strike him. He then said the man grabbed two balls from the table and swung around and one of the men who was playing pool grabbed the balls from him. Mr Vosnakes then said he made a beeline for the door, putting his arms under the man’s and his hands locked together behind his head, a hold that I was told is a “full Nelson”. He said the man struggled and, as they were struggling, they both slipped off the step and landed on the ground. Mr Vosnakes said he got to his feet as quickly as possible and escorted the man off the premises.
In cross-examination Mr Vosnakes maintained that the man was struggling. He denied that they had been walking at a fast pace, claiming that was not possible having regard to the way in which he was holding the man. He said that it would not have been safe to have walked him at a fast pace, as it could have led to them both falling. He said he did not forget about the step. He well knew it was there. No evidence was led to indicate that he warned Mr Wormald of the presence of the step and the inference is inescapable that he did not. He maintained that the account he had given about the pool cue was correct. He said that the man with the pool cue was not the man who tilted the pool table. Rather, it was the first person he escorted off the premises. He disagreed with the proposition that he did not remove the man who had fallen and could not recall two of his mates taking him out. He later said he could not remember whether he took him out.
Mr Vosnakes’s account was broadly consistent with a handwritten statement he had prepared within a day or two of the events, after he learned through his employer that the police had been called. But it was inconsistent with the evidence given by Mr Wormald and his witnesses and it was not supported by the only other witness Caftor called. All other witnesses have Mr Wormald tilting the pool table. No other witness saw a pool cue in Mr Wormald’s hand, except when he was playing pool. No-one saw Mr Vosnakes wresting one from him. No-one else saw him retrieve pool balls from a pool table on his way out. Mr Vosnakes, alone, said that Mr Wormald was struggling. He, alone, said he needed to restrain him in the manner he described.
Caftor’s other witness, William Meani, was a public servant, who had been drinking light beer and playing pool in the bar that night. Mr Meani said he arrived at Mooseheads at about 6 pm. He did not say when he left. He said he saw “a tall thin guy”, wearing a green shirt, arrive at the bar with a stubby of beer in his hand. He said the man later went up to the pool tables, put a coin on a table and challenged Mr Meani to a game of pool. Mr Meani said he then saw that some balls were missing from the table, so he terminated the game. He said he noticed that the man had taken pool balls out of his pocket and said to him: “I don’t tolerate people cheating at pool”. He said at some later point in time the man went around to the side of the table and lifted the top of it so that the balls rolled down to the side. He said he told the man to put the table down and tried to restrain him, whereupon the man grabbed him around his belt and shirt, holding on to the table at the same time. He said the security officer, Steve, came over at that point, told the man to let him go and put the table down and leave the premises. He said Steve told him more than once to leave the premises and then grabbed him by his arm, indicating the forearm. Shortly thereafter he heard a noise and saw that the two men were on the floor. He went over to see what had happened and saw punches being thrown and a struggle going on. He later described that as an all-out brawl. He said the tall thin man left the premises on foot but shortly afterwards came back. He saw him standing in the doorway arguing with the security guard. He said he was very surprised when he later learned that the man had a serious injury, surprised because the man he had seen had stood up afterwards and participated in the brawl.
Caftor had indicated that it intended to call Timothy Sargent, who had been drinking and playing pool with Mr Meani, but he was not in fact called. In the absence of any explanation, it is reasonable to infer that nothing he could say could assist Caftor’s case.
I accept that Mr Wormald and his three companions were intoxicated and that it is unlikely that Mr Meani was. I also accept that there is no evidence to suggest that Mr Vosnakes was intoxicated. What is more, I think that Mr Wormald probably underestimated the extent to which he was affected by alcohol. Nevertheless, the weight of the evidence favours Mr Wormald’s case. Neither he nor any of his witnesses was discredited in cross-examination. I was particularly impressed with the accounts given by Mr Plunkett and Mr Schilg. Mr Plunkett’s description was vivid. As he described the events unfolding he appeared to be reliving them.
It is difficult to know whether “the tall thin guy” Mr Meani described was in fact Mr Wormald. There was no evidence that Mr Wormald was carrying a stubby when he arrived at Mooseheads. Mr Meani did not identify the plaintiff. Mr Wormald is certainly tall (1.86 cm). He is also thin. The hospital notes recorded his weight on admission as 68 kg. Nevertheless, having regard to the nature and extent of his injuries, it is inconceivable that he walked out of the premises and back in again. If the man Mr Meani was describing was Mr Wormald, Mr Meani’s account did not support Mr Vosnakes’s evidence that Mr Wormald had wielded a pool cue or that he had picked up pool balls from a table after Mr Vosnakes had taken hold of him. While he may not have been in a position to see the latter, he was most certainly in a position to see the former. Mr Vosnakes’s and Mr Meani’s accounts are irreconcilable in this respect. Mr Schilg followed the two men as Mr Vosnakes marched Mr Wormald out of the bar. He was in the best position of any of them to see what was happening.
Mr Wormald and his three companions struck me as honest witnesses doing their best to give a reliable account of the events of the night. Their evidence was consistent with each other and there was no evidence of collusion. Whatever the reason for Mr Vosnakes’s account, I do not accept it is reliable. On the balance of probabilities, as even Mr Morgan, counsel for Caftor, ultimately acknowledged, Mr Wormald was ejected in the manner he and his witnesses described.
I therefore find that Mr Vosnakes marched Mr Wormald out of the bar with his right hand on Mr Wormald’s right upper arm and his left hand on his back as Mr Plunkett described. I find that Mr Vosnakes accelerated his pace and that the momentum, together with the force of his hand, drove Mr Wormald off the step, causing him to fall. I also find that Mr Wormald was not struggling or behaving aggressively as he was escorted from the premises.
Was Mr Wormald’s removal from the premises justified in the circumstances?
Caftor relies on the provisions of the Liquor Act1975 (ACT) and, in particular, on s 143, which relevantly provided:
A holder of a general licence, an on licence or a special licence may exclude or remove a person from the licensed premises if –
(a) the person is drunk, violent, quarrelsome or disorderly…
Unlike the comparable provisions of the Liquor Act 1982 (NSW) (s 103(3A)), there was no express provision in the ACT Act which entitled the licensee to use reasonable force to remove the person. But it is common ground that such an entitlement should be implied.
The evidence does not support the conclusion that Mr Wormald was removed from the premises because he was drunk or violent. But he was certainly disorderly and probably quarrelsome. In the circumstances Mr Vosnakes was entitled to remove him and to use reasonable force to do so. The question here is whether the force used was excessive. There appears to be no argument that, if Mr Vosnakes was negligent in pushing or propelling Mr Wormald off the platform, more force than was reasonable was applied. Cf. Platt v Nutt (1988) 12 NSWLR 231 at 240F. This inevitably leads to the conclusion that, for Mr Wormald to succeed, he must prove negligence.
Was Caftor negligent?
The answer to this question depends on whether a reasonable person in the position of Caftor or Mr Vosnakes would have foreseen that his conduct involved a risk of injury to Mr Wormald or to a class of persons of which he was a member and then, whether it or he took reasonable precautions in response to the risk. As the High Court said in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 48:
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 statement of claim particularises eight respects in which it is said that Caftor was negligent. There is insufficient evidence to support the allegation that inadequate instructions and/or training was provided to security staff in the handling of intoxicated customers. Expert evidence would be necessary to show what instructions and training ought to have been provided and the respects in which the instructions and training given to Mr Vosnakes were inadequate and none was called. The allegation that there was inadequate supervision of security staff also fails because there is no evidence about what, if any, supervision was reasonably required. Sensibly, Mr Crowe SC, who appeared with Mr Hausfeld for Mr Wormald, did not press these allegations.
I am satisfied that in the other respects alleged, Mr Vosnakes (and therefore Caftor) was negligent.
There is no dispute that the risk of injury was foreseeable. The risk was great, the likelihood of its occurrence high. Alleviating action was free, simple and entailed no inconvenience. It is true, as Mr Morgan pointed out, that Mr Vosnakes had potentially conflicting responsibilities. It seems that he was the only security officer working that night when, according to Mr Meani, there were over 100 people in the bar. He had a duty to protect patrons from the risk of harm from each other and that, no doubt, was behind his decision to remove Mr Wormald. But that responsibility was not impaired by taking the simple expedient of warning Mr Wormald to watch his step when he approached the end of the platform when he was well aware of the change in floor level. There was no evidence that he was in demand elsewhere, so that there was any need for him to accelerate his pace. As I have found that Mr Wormald was not struggling, there was no need for him to exert the degree of force that he did to effect Mr Wormald’s removal from the premises.
Mr Morgan submitted that the step was obvious so that there was no need to warn of it. But the evidence did not support the submission. Mr Wormald did not see it coming and no other witness said it was easy to see from the vantage point of the platform in the crowded bar that night. There was, as I have said, no photographic evidence.
Whilst I do not think Mr Vosnakes deliberately pushed Mr Wormald off the step, I am satisfied that he forcefully propelled him forward and that it was unreasonable for him to do so. I find that, although he was aware of the step he did not alert Mr Wormald to it. He should have known, particularly given the fact that Mr Wormald had been drinking and was undoubtedly intoxicated, that by pushing him and without warning him to look out for the step, he was exposing Mr Wormald to a significant risk of injury. The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others: McLean v Tedman (1984) 155 CLR 306 at 311 (“McLean”).
Accordingly, I find that Mr Vosnakes was negligent. It was not in dispute that if this were proved, Caftor was liable.
Were the injuries to Mr Wormald caused by Caftor’s tort?
Mr Morgan also conceded that, if Mr Vosnakes was negligent, then Mr Wormald’s injuries were caused by it. This was a proper concession to make. Had Mr Vosnakes alerted Mr Wormald to the step, it is unlikely he would have fallen. Had Mr Vosnakes not propelled him forward, it is unlikely he would have overbalanced.
Mr Vosnakes is a big man. He is 1.88 metres tall and weighed about 90 kg at the time of the accident. Doubtless the fact that he fell with Mr Wormald, driving him into the ground, also caused or materially contributed to Mr Wormald’s injuries.
Was Mr Wormald guilty of contributory negligence?
The first question that arises is whether contributory negligence extends to the claim in trespass.
The Law Reform (Miscellaneous Provisions) Act1955 (ACT) (which is now repealed, but which applied at the time of the tort) provided in s 15 that:
(1) If a person (the claimant) suffers damage as the result partly of the claimant’s failure to take reasonable care (contributory negligence) and partly the wrong of someone else –
(a) a claim in relation to the damage is not defeated because of the claimant’s contributory negligence; and
(b) the damages recoverable for the wrong are to be reduced to the extent the court considers just and equitable having regard to the claimant’s share of the responsibility for the damage.
“Wrong” was relevantly defined in s 14 to mean “an act or omission (whether or not an offence) that gives rise to a liability in tort to which a defence of contributory negligence is available at common law”. Contributory negligence was not a defence available at common law to an action with respect to an intentional tort. In State of New South Wales v Riley (2003) 57 NSWLR 496 at [107] Hodgson JA, with whom Sheller JA and Nicholas J agreed, considered that contributory negligence is available as a defence to the unintended consequences of a trespass.That was an action for false imprisonment where the Court applied the defence to an injury to the plaintiff’s wrist occurring as a result of negligence in applying handcuffs or the manner of driving the paddy wagon in which the plaintiff was confined. Mr Morgan relied on Riley. Mr Crowe appears to have accepted its authority.
In any event, in the circumstances of this case it probably does not matter.
The next question is whether contributory negligence is made out. The issue must be approached on the footing that Mr Vosnakes was negligent: McLean at 315. The onus of proof rests with Caftor.
Caftor pleaded the following particulars:
(a)Intoxication;
(b)Failing to watch his step;
(c)Acting in an aggressive manner;
(d)Attempting to assault its employee;
(e)Failing to leave the premises in a calm and orderly fashion;
(f)Struggling and resisting when being escorted from the premises;
(g)Losing his footing as a result of struggling and resisting whilst intoxicated and being escorted from the premises.
There is an obvious overlap between some of these allegations. Having regard to the findings I have made, particulars (d), (e), (f) and (g) are not made out. That leaves (a) and (b) and, as long as the allegation of aggressive behaviour is confined to the conduct at the pool table, it also leaves (c).
Before any question of apportionment arises, contributory negligence involves proof of two matters. First, that the injured party failed to take reasonable care of himself and secondly, that that failure contributed to his injury.
It is well accepted that a plaintiff owes a duty to look out for himself and not to act in a way that may put himself at risk: Vairy v Wyong Shire Council (2005) 223 CLR 422 at [220]. It is a matter of common experience that under the influence of alcohol judgment is impaired and concentration compromised. In this case, however, there is no evidence to indicate the extent to which Mr Wormald’s judgment and concentration was affected by his alcohol consumption. No witness was asked to describe his gait before he fell, his manner of speech or the look in his eyes. Although the hospital notes record his estimated intake, apart from an unsourced statement that he was moderately intoxicated, they make no reference to the effect of his alcohol consumption or to any indications from which an inference might be drawn as to its effect. No medical examination records any signs of intoxication. No blood was apparently taken for analysis. The evidence, as I indicated earlier, does not support the initial claim made by Caftor that Mr Wormald was removed because he was intoxicated. Mr Morgan argued that the mere fact that he was removed was relevant. Mr Crowe submitted that that was too remote. In my opinion, the mere fact that Mr Wormald behaved in the way that caused him to be removed was causally irrelevant. It might have imperilled him at the hands of the patrons he upset. If the injury was sustained at the time Mr Vosnakes was attempting to restrain him for aggressive behaviour, that would be one thing, but it was not.
Mr Wormald said he had been to Mooseheads only on one other occasion but there is no evidence about how long beforehand that was. Presumably he had ascended the step earlier in the night, but it is unlikely he would have made a mental note of it. The real difficulty for Caftor, however, is the speed with which the events occurred and the limited control Mr Wormald had over his own movements. His evidence, which I accept, was that he was pushed off balance. This passage from the transcript illustrates the point:
MR CROWE: Were you moving the whole of the time from when he commenced to march you up to this point?
ANSWER: I was moving at a regular pace, walking pace. And then when we got approximately that distance from the doors, he increased the pace in such a way that I fell with him on top of me.
MR CROWE: Were you conscious of the floor in front of you just before this fall occurred?
ANSWER: No, I was looking at the door, and there was suddenly no floor there because at my accelerated pace I was leaning I was leaning forward because of the push.
As Mr Crowe put it in argument, there is a vital difference between negotiating a stair when you are in control of your own movements and when you are not.
Nevertheless, the conclusion is unavoidable that, by allowing himself to become intoxicated, Mr Wormald exposed himself to an unnecessary risk of injury and failed to take reasonable care for his own safety. Whether that contributed to his injury, however, is another matter.
As the High Court explained in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 at 532-3:
The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v. Norris(1956) 96 CLR 10, at p 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Ltd. (1953) AC 663, at p 682; Smith v. McIntyre (1958) Tas.SR 36, at pp 42-49 and Broadhurst v. Millman(1976) VR 208, at p 219 and cases there cited.... It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.
In this case a comparison of relative culpability leads me to the conclusion that Mr Vosnakes was wholly responsible. He was undoubtedly more powerful than Mr Wormald, drunk or sober. He held a brown belt in martial arts. It was Mr Vosnakes’s grip and the force with which he propelled him that was responsible for Mr Wormald’s injury. Whether intoxication played any role at all is simply a matter of speculation.
DAMAGES
The extent of the injuries
When Mr Wormald was examined by the ambulance officers he was found to be slightly pale and nauseous. He was unable to move his legs due to severe pain in his left pelvis and lumbar area. He was treated with morphine and an antiemetic, Maxolon. After treatment he was finally able to be moved.
The ambulance took Mr Wormald to Canberra Hospital where, later that morning, a series of x-rays were taken and he was diagnosed with a comminuted fracture of the acetabulum (the socket of the hip bone into which the head of the femur fits) with posterosuperior dislocation of the head of the femur. An x-ray of the lumbo-sacral spine was also taken. It revealed no abnormality. Later that day Mr Wormald underwent a closed reduction of the hip fracture and was placed in traction. He spent some five weeks in hospital during which he underwent a second operation (on 29 November 2001) conducted by Dr Bryan Ashman, orthopaedic surgeon, consisting of an open reduction and internal fixation of the fracture.
He was allowed home for Christmas day in a wheelchair and was discharged on 27 December 2001 on crutches.
On 1 February 2002 he commenced a month’s course of physiotherapy at the Canberra Hospital.
Thereafter he was periodically reviewed by Dr Ashman.
The last review by Dr Ashman was on 26 March 2003. At this time Mr Wormald reported more or less constant left lateral hip pain and a feeling of crepitus and crunching in the joint when walking up hills. He told Dr Ashman that he had changed his job from ceramic tiling to concrete polishing so that he could stand up during the day and this had lessened the pain so that he was not significantly limited by his symptoms. He walked without a limp at this stage and the range of motion in his left hip was 110° of flexion but there was no internal rotation. An x-ray showed a well healed acetabular fracture and no loss of joint space. Dr Ashman thought that the symptoms of which he complained represented damage to the articular cartilage of the femoral head at the time of his injury. He referred him to a hip specialist, Dr Paul Smith. He felt that in the short term Mr Wormald would continue to experience pain and limitation of movement in the left hip, which may or may not progress to become more disabling. In the long term, he said that Mr Wormald was at risk of developing osteoarthritis of the joint and may require a total hip replacement.
Dr Smith saw Mr Wormald on 8 April 2003. He reported a pattern of ongoing pain around the left hip girdle in association with some crepitus and crunching. He said the pain was activity-related, worse at the end of the day. He said he was unable to wield heavy wheelbarrows in his normal occupation or lift heavy objects. He was taking anti-inflammatories daily and complained of night pain, often waking with pain. Dr Smith’s view was that he might be experiencing progressive wear of his hip following significant joint injury and that the clicking sensation could be due to the wear process or, alternatively, to the presence of a loose body. He was concerned about the possibility of avascular necrosis.
Mr Wormald returned to see Dr Smith on 2 September 2003. A CT scan showed maintenance of the joint space with no areas of eccentric wear but what appeared to be a loose body in the joint, which Dr Smith considered could explain Mr Wormald’s clicking sensation. Dr Smith thought he should undergo arthroscopic surgery, which would also enable evaluation of his articular surface given the risk of developing degenerative changes in the joint after an injury of a kind he had sustained. He was put on a waiting list for this procedure.
On 30 September 2003 Mr Wormald saw a hip and knee surgeon, Dr Lawrie Giutronich, at the San Clinic in Sydney. Dr Giutronich also recommended arthroscopic surgery.
Mr Wormald’s GP then referred him to see Dr James Sullivan, another orthopaedic surgeon specialising in hip and knee surgery and joint replacements. Dr Sullivan saw him on 10 October 2003. Unlike the other surgeons, he did not think there was an urgent need to proceed to arthroscopy. Mr Wormald told Dr Sullivan that he could not crouch or squat, had fairly constant aching pain over the posterior trochanteric region but was still reasonably mobile and could manage nine holes of golf, although he was sore after it. Dr Sullivan said that he did not clearly describe a true mechanical locking although he had felt occasional clicking.
Mr Wormald returned to see Dr Sullivan on 3 May 2004. At this time he was complaining of more widespread pain, particularly when active. He told the doctor that he was no longer playing golf and struggled with a lot of activity. He reported cracking in the hip but no mechanical symptoms of locking. X-rays showed no significant degeneration at that time. Dr Sullivan maintained his reluctance to recommend any surgical procedure at that stage.
By 1 March 2007, however, x-rays of the left hip showed changes consistent with osteoarthritis mainly involving the left femoral head.
By September 2011, x-rays of the left hip showed advanced osteoarthritis. They also showed degenerative changes in the lumbar spine, not present on the day of the accident. Despite the injury to the back sustained in the accident, the medical evidence was silent as to whether the pathological changes were attributable to, or accelerated by it.
General damages
Mr Wormald’s claim was for $140,000 in general damages together with interest for 10.5 years on half this sum at 2% per annum. Mr Morgan accepted that the sum was appropriate and I am satisfied that it is within the range, though possibly at its lower end. My attention was drawn to some authorities in an attempt to persuade me that the sum was reasonable. The parties agreed that s 99 of the Civil Law (Wrongs) Act 2002 (ACT) applies retrospectively in this respect to enable the Court to refer to earlier decisions for the purpose of establishing the appropriate award. Ultimately, I have not found any of those decisions to be particularly helpful.
This was a significant injury. It had a major impact on Mr Wormald’s life. Mr Wormald struck me as a rather laconic individual, who did not make much of his plight. Nevertheless, he has had a substantial amount of pain now for over a decade. He took a range of analgesia. Some of it did not agree with him. Consequently, he took to self-medicating with alcohol and later, cannabis.
The evidence shows that he was a fine tradesman, who gained pleasure and pride from his work and the acclaim it received. Within three years of learning the tiling trade he was proficient enough to work alone as a sole trader carrying out residential ceramic tiling and stone masonry. His business expanded to commercial work and he joined forces with Mr Plunkett in a successful tiling business, which included prestige jobs such as the laying of pathways at the new Parliament House and a large project at the Albatross Naval Base, near Nowra. One project, for the Australian Bureau of Statistics in Belconnen, won for the business a Master Builders’ Association award for “best installation of stone”.
Mr Wormald was also fit, active and energetic, participating in a range of sports with friends and family. He had two young sons, who were 9 and 11 years old at the time of his accident. The injury deprived him of the ability to work and enjoy his trade and the range of activities he enjoyed. An independent and physical man, he has become dependent on others. Although he made nothing of it, I have no doubt that this has embarrassed him. Admittedly, he has done his best to adjust to his circumstances. For example, although he avoids ocean fishing, he fishes in calmer waters. He used to enjoy stalking and shooting (with bow and arrow and rifle) feral animals in the woods over a variety of different terrains. Now his friends do the hunting and he confines himself to the shooting. But he appears to be significantly troubled by pain. In particular, in contrast to his life before the injury, he is a poor sleeper, often waking with pain that occurs with simple movements. He was separated from the mother of his children at the time of the injury and re-partnered since, but his sex life is affected by pain.
He was injured while a relatively young man. He has a life expectancy on the tables of 40 years. The next few years will likely see a deterioration in his pain levels culminating in a hip replacement and at least one further replacement. There is no evidence about what impact the hip surgery will have on his pain or his lifestyle but it is reasonable to assume it will reduce, if not alleviate, the pain for a prolonged period. Nevertheless, as it wears out he will again be troubled by increasing pain and disability.
Past out-of-pocket expenses
These are agreed at $37,395.19.
Past loss of earning capacity
Compensation for loss of earning capacity may be awarded where the diminution in an injured plaintiff’s earning capacity is or may be productive of financial loss: Graham v Baker (1961) 106 CLR 340 at 347. There is no doubt that Mr Wormald’s earning capacity has been reduced by the injury and that it has been productive of financial loss.
Having tried and failed to resume tiling (hampered by his difficulty crouching, squatting and undertaking heavy labouring activities), with Mr Plunkett’s assistance he changed his work. The two of them abandoned tiling for concrete polishing and, by June 2010, had built up the new business to the point, it is accepted, he would have reached had he not been injured.
Past loss of earning capacity is agreed at $323,641, as is interest on that sum at $178,648.
Past care
Mr Wormald, his two sons, his mother, Sandra, and his partner ,Alexis Mackenzie, all gave evidence of the assistance he has required since his injury. The assistance has been entirely gratuitous and, provided that it has reasonably been required, it is compensable under the principle recognised in Griffiths v Kerkemeyer (1977) 139 CLR 161.
The parties agreed that the hourly rate should be $21.
Mr Wormald’s claim is for $56,000.
For the first year all the care came from his mother. Mrs Wormald’s evidence was that she provided assistance for three hours a day, seven days a week for the 5.1 weeks during which her son was hospitalised; and five hours a week until he returned to his own home and around the time he started going out with Ms Mackenzie. Her evidence was vague as to when that was. But her evidence, read with Ms Mackenzie’s, tends to support the inference upon which Mr Wormald’s claim is based, namely, that Mrs Wormald’s assistance ceased in around November 2002.
Mrs Wormald said that after his surgery her son could not do anything for himself except to move his head and arms. Whilst Mr Wormald was in hospital, she cut his hair, shaved him, took meals to him if he wanted something different to eat, did his washing and returned it to him, cleaned his house, fed his dog, brought his children to visit him, dined with him on weekends and shopped for him at Christmas. This is the source of the three hours a day seven days a week.
Edward, the older of Mr Wormald’s two sons, testified that over the last four to five years he has provided assistance for half a day a month with labouring tasks in the garden and around the house. Mr Wormald’s younger son, Thomas, gave evidence that he has also provided assistance in the form of gardening and household labour for two hours a week over the last five years. The claim is for 234 weeks of assistance given by Edward and 260 by Thomas. The figures are respectively $5,148 and $5,720. Caftor does not quarrel with either figure. The amounts claimed should be allowed in full.
Ms Mackenzie’s evidence was that for the first eighteen months after she met Mr Wormald she provided him with four to six hours of assistance a fortnight; for the next five to six years while they were living together two hours a week; and thereafter four to six hours a fortnight. The assistance consisted of massaging his hip, cleaning the house, removing rubbish, landscaping, shovelling, cooking, doing the laundry and folding it, and other work in the garden. She also gave evidence that she walked Mr Wormald’s dog for five to 10 hours a week.
Not all assistance provided in hospital is necessarily compensable. The assistance must be reasonably necessary to meet the plaintiff’s physical or emotional needs. No compensation is payable for services which a hospital would have provided for no additional charge had family members not chosen to provide the same services gratuitously: Kopp v Pigram [2003] QSC 248 at [66]. In this case, however, there was no dispute that the services Mrs Wormald provided to her son were reasonably necessary. The only controversial part of the claim related to the care provided to Mr Wormald’s dog and the tasks the evidence showed that Mr Wormald could do for himself. They include cooking, washing and folding clothes. No allowance should be made for those tasks or for the claim with respect to the dog.
Mr Crowe could cite no authority to support the proposition that caring for pets is compensable under the Griffiths v Kerkemeyer principle. He relied on s 33 of the Law Reform (Miscellaneous Provisions) Act 1955 (ACT). At the relevant time, it provided:
(1) The liability of a person in respect of an injury suffered by another person as a consequence of negligence extends to include liability for damages for any resultant impairment or loss of that other person’s capacity to perform domestic services that he or she might reasonably have been expected to perform for his or her household if he or she had not been injured.
(2) In proceedings for the recovery of damages referred to in subsection (1), it is immaterial –
(a)whether the plaintiff performed the domestic services for the benefit of other members of the household or solely for his or her own benefit; and
(b)that the plaintiff was not paid to perform those services; and
(c)that the plaintiff has not been, and will not be, obliged to pay another person to perform those services; and
(d)that those services have been, or are likely to be, performed (gratuitously or otherwise) by other persons (whether members of the household or not).
In substance, the argument advanced for Mr Wormald is that the members of the plaintiff’s household include domestic animals. For the following reasons the argument must be rejected.
The ordinary and grammatical sense of the statutory words must be interpreted having regard to their context and legislative purpose: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [4]. A construction that would promote the legislative purpose is to be preferred to a construction that would not: Interpretation Act 1967 (ACT), s 11A, cf. Legislation Act 2001 (ACT), s 139.
Section 33 was inserted by the Law Reform (Miscellaneous Provisions) (Amendment) Act 1991 (No 2) (ACT). In introducing the Law Reform (Miscellaneous Provisions) (Amendment) Act 1991 (No 2) Bill (ACT), the then Attorney-General, the Hon Terry Connolly MP, explained its purpose:
This Bill bolsters the law by affirming in clear and unequivocal language the right of people to adequate compensation for loss of capacity to do housework. The provisions of the Bill make clear that liability for the loss should not be affected by matters which are irrelevant to the extent of the loss or which have influenced the courts in the past as they have grappled with this principle. The Bill states that it is immaterial whether the housework has been paid for, whether the relatives were to provide voluntary help, and whether the loss included loss of capacity to work for others as well as oneself.
The purpose of the legislation was therefore twofold — to give legislative recognition to the principle in Griffiths v Kerkemeyer and to apply it to a loss of the capacity to provide help to others. Before the passage of the amendment, there were conflicting opinions of intermediate appellate courts concerning whether or not a plaintiff, who was disabled by reason of his or her injury from providing care to other members of his or her household, was entitled to be compensated under the principle in Griffiths v Kerkemeyer. The majority of the New South Wales Court of Appeal in Burnicle v Cutelli [1982] 2 NSWLR 26 (“Burnicle”) held that there was no such entitlement. In Hodges v Frost(1984) 53 ALR 373 a Full Court of the Federal Court declined to follow Burnicle.
None of these cases, however, concerned the care of animals. The plaintiff’s case depends upon the meaning of the expression “members of the household” in s 33. In that respect no assistance is to be gained from the extrinsic materials. The expression is not defined in the Act. There is nothing to suggest that it was part of the legislative purpose to provide for compensation for an inability to care for pets. In Geaghan v D’Aubert (2002) 36 MVR 542 Stein JA, with whom Handley JA and Foster AJA agreed, held there was no such entitlement at common law. At [61]-[62] his Honour said:
[61] I do not believe that Griffiths v Kerkemeyer, or any of its extensions, includes the provision of care to an injured person’s pets or a hobby. The cases have accepted domestic care at home, in the garden and shopping. But counsel has found no case which extends domestic assistance to the care of domestic pets or the retention of a hobby.
[62] It might be that no relevant “need” of a plaintiff to the provision of such a service as pet care or a hobby has been established. Alternatively, it may be that if the plaintiff was unable to look after a pet, or lost a hobby, that loss more appropriately sounded in general damages. It may also be that such a loss may be seen as too remote a damage to be laid at a defendant tortfeasor’s door.
At [63] his Honour pointed out the emphasis given in Sullivan v Gordon (1999) 47 NSWLR 319, which overruled Burnicle, to the exceptional nature of Griffiths v Kerkemeyer damages.
There is nothing in the legislative context that supports the conclusion that animals are members of the plaintiff’s household for the purposes of s 33. The construction that would best promote the legislative purpose is to confine the members of the household to human beings.
Accordingly, no allowance should be made for caring for Mr Wormald’s dog, including walking the dog. In the case of the assistance given by Mrs Wormald, it is difficult to know how much of the time should be attributed to these tasks. The evidence is unhelpful but it is unlikely to be a significant part of that claim. Accordingly, the better course is to discount slightly that part of the claim. The total figure sought for Mrs Wormald’s assistance was $7,746. I would simply round the figure down to $7,500.
The claim made for the assistance provided by Ms Mackenzie amounted to $19,734, excluding the dog-walking. It appears that with respect to the first and last periods, washing and folding of laundry has been included and also cooking in the first period, although no claim was said to have been made for it. Doing the best I can, I would assign half an hour a week to the laundry tasks and reduce the first period to take into account some additional cooking time. I would allow $3,000 for the first period, $12,584 for the second and $5,460 for the third. That comes to a total of $21,044.
The sum total is $39,412.
Interest should be allowed at the rate of 4.5% per annum, being the agreed rate for calculating interest on past economic loss, and not the rate of 2% per annum for which the plaintiff’s schedule of damages provides: Grincelis v House (2000) 201 CLR 321. Interest of $18,622 is therefore payable.
Future out-of-pocket expenses
There is no denying that Mr Wormald will require a hip replacement in about five years’ time, possibly sooner. The evidence as to its costs comes from Dr Griffith, a consultant surgeon retained by Mr Wormald’s solicitors who assessed Mr Wormald and prepared multiple medicolegal reports, and is uncontested. That is $36,000. Deferred for five years (multiplier 0.863) the figure is $31,068. Assuming the prosthesis lasts 17½ years (the median estimate given by Dr Griffith) the present value of the claim for the second hip replacement, deferred for 22½ years (multiplier 0.5145) is $18,522. Mr Wormald also claims an allowance for general medical care including GP and specialist consultations, diagnostic tests, physiotherapy and analgesia of $10,500.
The total of these sums is $60,090.
It is true as Mr Morgan argued that there is no certainty about the second prosthesis and the allowance for general medical care may well be inflated. I would allow $50,000 for future out-of-pocket expenses.
Future loss of earning capacity
This is also the subject of some dispute. Mr Wormald claims $100,000; Caftor concedes $35,000. The assessment of damages for future economic loss depends on the estimation of possibilities: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 643. It is necessarily imprecise: Donald v McKeown [2004] NSWCA 285 at [38].
Mr Wormald will certainly come to surgery, probably within the next five years.
Plainly Mr Wormald will be unable to work for the three months the medical evidence indicates will be associated with his hip surgery and his recuperation. It is possible that for some time before surgery he will also be incapacitated. Surgery will be elective. Whether this means he will have to wait some time before he can have it is not known, but it is reasonable to make some allowance for the contingency. He may also require another replacement before he retires from the workforce. And there may be complications with surgery that might protract recuperation. All these contingencies should be taken into account.
Mr Wormald’s current net weekly earnings are $3,062. 12 weeks at $3,062 deferred for five years (using the 3% multiplier of 0.863) is $31,710. An additional allowance of less than $4,000, which is what Caftor’s submission contemplates, would plainly be inadequate. Similarly, the figure put on Mr Wormald’s behalf is manifestly excessive. I would allow a total of $50,000.
Future care
Mr Wormald’s claim (excluding dog-walking) is for $42,686. Caftor submits an amount of $20,000 is appropriate. Once again, I think Mr Wormald’s claim is excessive and Caftor’s insufficient. Mr Wormald’s claim is based on 4½ hours a week for ten years only with no reduction for vicissitudes on the basis that there are both positive and negative vicissitudes to take into account. The need for care may be greater at times, particularly as he approaches surgery and recovers from it and it may extend beyond a total of ten years. I accept the argument that there are positive and negative vicissitudes so that the total figure should not be discounted but I would reduce the hours to four for the reasons I gave earlier. Using the 3% multiplier for 10 years of 451.8, the figure for future care is $37,943.51, which I would round down to $37,000.
Conclusion
Mr Wormald succeeds in his claim. There should be no reduction in damages for contributory negligence. Damages are payable in the total sum of $ 889,418 made up as follows:
General damages $140,000 Interest on past general damages $14,700 Past out-of-pocket expenses $37,395 Future out-of-pocket expenses $50,000 Past loss of earning capacity $323,641 Interest on past loss of earning capacity $178,648 Future loss of earning capacity $50,000 Past gratuitous assistance $39,412 Interest on past gratuitous assistance $18,622 Future gratuitous assistance $37,000 Total $889,418
There will be judgment accordingly.
I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour Justice Katzmann.
Associate:
Date: 22 June 2012
Counsel for the plaintiff: Mr R L Crowe SC and Mr S Hausfeld
Solicitor for the plaintiff: Maliganis Edwards Johnson
Counsel for the defendant: Mr D Morgan
Solicitor for the defendant: Richard Mole & Associates
Date of hearing: 12, 13 and 14 June 2012
Date of judgment: 15 June 2012
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