Wright v Bramley

[2017] NSWDC 45

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Wright v Bramley [2017] NSWDC 45

Hearing dates:

28 February, 2 and 9 March 2017

Date of orders:

17 March 2017

Decision date:

17 March 2017

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict and judgment for the plaintiff in the sum of $231,509.70, which includes aggravated damages;

 

2. The defendant is to pay the plaintiff’s costs of the proceedings on the ordinary basis until 19 September 2016 and on the indemnity basis thereafter;

 

3. The exhibits may be returned;

 4. Liberty to apply on 3 days’ notice if further or other orders are required.

Catchwords:

TORTS – intentional tort of assault; DAMAGES – assessment of damages including an award of aggravated damages

Legislation Cited:

Civil Liability Act 2002, s 3B, s 18
Crimes (Sentencing Procedure) Act 1999, s 10
Evidence Act 1995, s 60, s 136
Limitation Act 1969, s 52
Property (Relationship) Act 1984

Cases Cited:

Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Barton v Armstrong [1969] 2 NSWLR 451
Bresatz v Przibilla [1962] HCA 54; (1962) 108 CLR 541
Cheng v Farjudi [2016] NSWCA 316
Cooper v Mulcahy [2013] NSWCA 160
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Glen v Sullivan [2015] NSWCA 191
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Gray v Motor Accidents Commission [1998] HCA 70; (1998) 196 CLR 1
MacDougal v Mitchell [2015] NSWCA 389
Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522
Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Penrith City Council v Parks [2004] NSWCA 201
Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327
State of NSW v McMaster [2015] NSWCA 228
State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536
State of NSW v Riley [2003] NSWCA 208
Strong v Woolworths Ltd t/as Big W [2012] HCA 5, (2012) 246 CLR 182
Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28
Uren v John Fairfax & Sons Pty Ltd [1996] HCA 40
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Whitbread & Anor v Rail Corporation NSW & Ors [2011] NSWCA 130

Texts Cited:

The Law of Torts, John G Fleming, 10th ed, 2011, p 34, [2.70]

Category:

Principal judgment

Parties:

Jack Wright (Plaintiff)
Paul Bramley (Defendant)

Representation:

Counsel:
Mr G Radburn (Plaintiff)
Ms G O’Shannessy (Defendant)

  Solicitors:
Bourke Love (Plaintiff)
- (Defendant)

File Number(s):

2016/101054

Publication restriction:

None

Judgment

Table of Contents

Nature of case	[1]
Parties	[2]
Factual background	[3] – [9]
Issues	[10]
Evidence overview	[11] – [13]
Credibility and reliability of testimony	[14] – [70]
The plaintiff	[15] – [17]
The defendant	[18] – [41]
Mr Lee Mitchell	[42] – [47]
Mr Nigel Magnay	[48] – [57]
Ms Rachel Kelly	[58] – [65]
Senior Constable Cooke	[66]
CCTV recordings of the events	[68] – [70]
Facts	[71] – [85]
Issue 1 – Sequence and manner of touching	[86]
Issue 2 – Whether assault or self-defence	[87] – [98]
Issue 3 – Damages, including aggravated damages	[99] – [167]
Medical and allied assessments	[100] – [114]
Disabilities	[115] – [122]
Employment consequences	[123] – [132]
Mitigation	[133]
Actuarial factors	[134]
General compensatory damages	[135] – [138]
Aggravated damages	[139] – [144]
Past economic loss	[145] – [148]
Future economic loss	[149] – [157]
Past loss of superannuation	[158]
Future treatment expenses	[159] – [161]
Past out-of-pocket expenses	[162]
Interest	[163] – [166]
Summary of damages/interest	[167]
Issue 4 – Claim of novus actus interveniens	[168] – [182]
Claimed effect of conduct of others	[173] – [176]
Incident on 21 February 2016	[177] – [182]
Disposition	[183]
Costs	[184]
Orders	[185]

Nature of case

1. This is a common law action claiming damages for the intentional tort of assault, and as such, the Civil Liability Act 2002 does not govern these proceedings, except in respect of the calculation of any interest awardable on assessed damages for non-economic loss: s 3B(1)(a) and s 18 of that Act.

Parties

2. The plaintiff, Mr Jack Wright, formerly a duty manager employed at the Brunswick Heads Hotel, brings these proceedings against the defendant, Mr Paul Bramley, a patron of that hotel, who at the relevant time, was coincidentally the holder of a wine bar liquor licence. The plaintiff claims the defendant had violently assaulted him in a public bar whilst he was on duty at that hotel on the evening of 21 February 2015.

Factual background

3. At about 9.15pm on that evening, and against a background of the defendant’s alcohol intoxication, which had followed his consumption of some “20 odd schooners” of beer at the least, over a period of some hours since midday on that day, the defendant had approached an area known as the back bar located within the licensed premises of the hotel in order to remonstrate with hotel staff, and to express his disappointment over a decision made by hotel staff to stop serving alcohol to intoxicated guests at a function the defendant was hosting at the hotel for his son’s 21st birthday.

4. At the time the defendant approached the bar, he was in an upset state, and he was expressing his disappointment to hotel staff in an agitated, voluble and gesticulating manner. In those events, the defendant’s presence came to the attention of the plaintiff, and in the course of his duties and obligations as a bar manager, the plaintiff sought to engage the defendant in a conversation about the fact that the service of alcohol to the defendant’s party had ceased. A violent and frightening altercation then took place between the parties, during which blows were struck. Following that altercation, the attending police were unable to locate the defendant that evening, and determined that the defendant’s wife was being evasive as to his whereabouts: Exhibit “2”, p 2. The defendant claimed in evidence that he had gone to another police station that evening to report an assault upon himself, but found that police station was closed. The defendant subsequently attended the Byron Bay Police Station the following day.

5. In the defendant’s police record of interview relating to those events, which was undertaken on the following afternoon, the defendant acknowledged that he regretted the events which had occurred in the course of that physical altercation which is the subject of the proceedings. In that interview, he also acknowledged that he should have “walked away” before the events had escalated, as will shortly be described.

6. In defending these proceedings, the defendant claims that it was the plaintiff, and not himself, who had first initiated a physical contact between them. There was no cross-claim for any alleged assault or battery by the plaintiff. The defendant further claimed that contact was a battery that gave rise to a reasonable need on his part to physically react in his self-defence. The defendant maintained that he had done nothing wrong. The plaintiff disputed the veracity of the defendant’s version of events.

7. The plaintiff and the defendant each gave conflicting accounts in their respective testimonies concerning the events. Those issues will be determined according to the assessment of the credibility and the reliability of testimony. The altercation was partly recorded by two CCTV cameras located in the ceiling of the back bar area. Those recorded images require evaluation.

8. The plaintiff claims that in the events in question, the defendant had, without authorisation, made physical contact with him in an aggressive manner, whereby the defendant then forcefully punched him in the face, following which the plaintiff was then pushed backwards against the bar, and he was then pushed, thrown or pulled to the ground, whereupon some other members of the defendant’s party joined into what was variously described as an ensuing melee or fracas. In those events, the plaintiff claims he was physically and verbally assaulted.

9. The plaintiff made a claim for compensatory damages, including aggravated damages, and for exemplary damages. He abandoned his claim for exemplary damages during the course of the hearing. This was because the defendant has already been dealt with by a court in the criminal justice process: Gray v Motor Accidents Commission [1998] HCA 70; (1998) 196 CLR 1, at [15]. That was a generous concession in the circumstances, where the defendant was not made the subject of “substantial punishment” for assaulting the plaintiff, but was dealt with according to s 10 of the Crimes (Sentencing Procedure) Act 1999: Cheng v Farjudi [2016] NSWCA 316. This was in circumstances where he was initially charged with assault occasioning actual bodily harm in company, as well as common assault, but pleaded guilty to a reduced charge of common assault on the plaintiff. That plea did not constitute an estoppel: Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28.

Issues

10. After resolving matters concerning the credibility and the reliability of testimony, the issues that call for decision in these proceedings are: first, which party had first touched the other without permission to do so, and in what manner; secondly, whether the plaintiff was assaulted by the defendant in the manner claimed by the plaintiff, or whether the defendant had acted reasonably in his own self-defence when he struck the plaintiff; thirdly, in the event of a finding that the plaintiff was assaulted by the defendant, the appropriate measure of the plaintiff’s entitlement to damages; and fourthly, whether blows initiated by others during the fracas, and whether a further incident on 28 February 2016, should be characterised as a novus actus interveniens, so as to influence the assessment of the plaintiff’s damages.

Evidence overview

11. In the plaintiff’s case, in addition to his own evidence, the plaintiff called oral evidence from Senior Constable Michael Cooke, Mr Nigel Magnay and Ms Rachel Kelly. In addition, the plaintiff tendered CCTV images taken from hotel security cameras (Exhibits “G.1” and “G.2”), a copy of a police record of interview given by the defendant the following day (Exhibit “L”), together with a bundle of medical reports (Exhibit “B”), and various other documents and photographs, which will be referred to where it becomes relevant to do so.

12. In the defendant’s case, in addition to his own evidence, the defendant called Mr Lee Mitchell who was also present at the function, and who claimed to have seen something of the events in question. The defendant also tendered a shorter copied version of the CCTV images: Exhibit “3”. The relevance of that copy tendered by the defendant is that a version of it had been electronically copied by a police officer, and that copy had then been provided to another person involved in the fracas, who had also been charged, and the legal representative of that person then gave a copy to the defendant.

13. It was that last and shorter copy of the CCTV images which the defendant had used to refresh his memory of the events. In view of the discrepancies between Exhibit “3” and Exhibit “G.1”, Exhibit “3” was admitted into evidence for the limited purpose of identifying the material from which the defendant had refreshed his memory: s 136 of the Evidence Act 1995.

Credibility and reliability of testimony

14. In the paragraphs that follow, I set out my conclusions on the credibility and the reliability of the testimony of the respective witnesses. The conclusions I have reached on those matters have been reinforced by my viewing of the respective copies of the CCTV images, which provided a measure of objective evidence of the events, notwithstanding that those images were not accompanied by any sound recording relating to the events shown in those images. In that process, the images were first viewed consecutively as a whole, and then examined in specific frame sequences.

The plaintiff

15. The plaintiff is presently aged 27 years. At the time of the incident in question, he was of slight to medium build. After leaving school in 2007 following his completion of the HSC, he had commenced employment with the Brunswick Heads Hotel as a casual bar worker for about 18 months. He then worked elsewhere as a warehouse manager for a food distribution business. On 7 August 2014, he recommenced his employment with the Brunswick Heads Hotel, this time in the capacity of a full time duty manager, being one of several of such managers. He continued in that role until the events which were the subject of these proceedings.

16. I found the plaintiff to be an impressive witness. He gave his evidence on the matters in contest in a measured and restrained manner even though the subject matter was plainly upsetting to him. There was nothing in his evidence that caused me to doubt its factual accuracy, either before or after the CCTV footage was examined.

17. There were no relevant inconsistencies arising from the evidence of the plaintiff. For the reasons that follow, I have preferred the evidence of the plaintiff and his witnesses when considered and compared to that of the defendant and his witness. I accept the plaintiff’s evidence in its entirety.

The defendant

18. The defendant is presently aged 51 years. He is a resident of the Gold Coast in Queensland. He is presently employed as a rugby league development officer involved in the recruitment of young rugby league players in central Queensland. At the time of the subject event he was the licensee of a wine bar. He also drove trucks for a living. At the hearing, his appearance was that of a short man with a heavy muscular build. He said he weighed about 120kgs. That description looked consistent with the defendant’s appearance as shown on the CCTV footage. He has in more recent times transferred his interest in the liquor licence for his wine bar to his wife. On the day in question, he was present at the hotel because he had booked a marquee for a function in order to entertain guests, including some guests from interstate, for his son’s 21st birthday party.

19. It was apparent from the answers the defendant gave to Senior Constable Cooke in an electronically recorded record of interview, that he had very little memory of the detail of what had occurred in the course of the events of which the plaintiff complains.

20. There were some significant differences between the content of the defendant’s oral evidence of the events at the hotel when compared to his answers to police when he was interviewed by police at 4:06pm on Sunday 22 February 2015, the day following the incident.

21. Whereas in his oral evidence the defendant denied having placed a hand on the plaintiff’s left shoulder, and denied punching the plaintiff (T127.8), he ultimately agreed he had slapped the plaintiff’s face: T123.30; Exhibit “G.1”, 9:16:03. In his record of interview, he said he could not recall the movements inherent in the sequence of events without seeing the CCTV recording: Exhibit “L”, Q&A 46; Q&A 47; Q&A 49; Q&A 50; and Q&A 91. It follows that his oral evidence was on the basis of a memory that had been either created or reconstructed from viewing his copy of that recording.

22. When interviewed by investigating police, the defendant conceded he was “verbally upset” at the time of his interchanges with the barman and the plaintiff which was before things became physical: Exhibit “L”, Q&A 51. He had told police: “… I feel like I haven’t done anything wrong …”: Exhibit “L”, Q&A 85. He later stated: “Being punched in the head I would call assault”: Exhibit “L”, Q&A 115. In my opinion, that is exactly what he did to the plaintiff in the events in question, as is shown in the CCTV footage.

23. The defendant gave oral evidence which I considered to comprise a skewed and highly selective self-serving view of the sequence in which the events unfolded. He represented to the interviewing police officer, over-simplistically in my view, that he had simply approached the bar and was initially talking to the person on the other side of the bar when the plaintiff simply “jumped into the conversation”: Exhibit “L”, Q&A 97. Obviously, the defendant’s recollection at that time was affected by his intoxicated state (Exhibit “L”, Q&A 89), and his inability at that time to remember all that had occurred: Exhibit “L”, Q&A 91.

24. The initial and the determinative point of difference between the respective versions of the plaintiff and the defendant was the circumstances which initiated the confrontation. In his evidence in chief, the plaintiff gave the following account of the commencement of those events:

“Q. What did you see Mr Bramley do?

A. Mr Bramley was yelling at one of the bar staff, a young male.

Q. What was he saying to him?

A. He was calling him a faggot and a fucking cunt, and that he couldn't cut us off as he had spent thousands of dollars over the course of that day.

Q. Where were you at this stage?

A. I've turned around and face to within proximity, like very closely to each other.

Q. Did he then say something to you?

A. He's then had his hand on - placed his hand on me, on my left side, while still yelling, directing stuff at Nick Brodley behind the bar. I've told him to calm down and to step away. At that stage I've gone to reach for my—”

[T18.2 – T18.16]

25. The defendant denied he had used words to the effect cited in the above extract from the transcript: T144.27 – T144.30. Those denials were based upon his belief as to what he had said rather than upon an actual recollection (T139.25; T146.4) as to whether or not he had used such language. In the circumstances where the defendant could not recall exactly what he said, doubtless because of his intoxicated state, for those and other reasons that will become plain, I prefer the plaintiff’s sober recollection as the more reliable source of evidence of what was said at that time, rather than the defendant’s reconstructed account, and I accept that the defendant uttered the words and exhibited the behaviour as described at paragraph [24] above.

26. In the defendant’s oral evidence in chief, the defendant explained that he had approached the bar in order to speak to the barman, described as Nick, with whom he had been dealing before the service of alcohol had been stopped. His full account of the ensuing events, extracted from his evidence in chief, was as follows:

“Q. And then what did you do?

A. I was obviously disappointed because I thought, you know, that the day had been working, in that we communicated with each other. So I got up and walked to the bar to speak to the young man behind the bar, who I believe is Mr Bodley, and, you know, demonstrated that I was disappointed that he hadn't come to us and that we couldn't have worked it out.

Q. Were you swearing and carrying on?

A. I don't believe I was. I don't - I wasn't happy. Yeah, I - you know, and I'm not Italian but I speak with my hands. My hands, you know, communicate with me, so - but, yeah, I was disappointed that we didn't have an opportunity to communicate and that we'd all been cut off and told to go.

Q. And you were directing your comments to, as you just said, the man behind the bar.

A. Yes.

Q. And what happened then?

A. Well, I was at the bar and a gentleman I'd never really seen before that day during that day was standing there. So I was attempting to talk to Nick. He stepped into my vision and informed us that we had to go and I expressed that I wasn't talking to him, that I was talking to the boy behind the bar, the young gentleman--

…

Q. Yes, carry on.

A. So at that point, I leant around the man at the bar and continued to try and talk to the bar person at the time.

Q. And then what happened?

A. Well, the gentleman continued to interrupt and as I said, I didn't know who he was. I didn't know he was the bar manager. I didn't know what his role there was, so I told--

Q. Was there any physical contact between you?

A. Well, yes. As I leant forward to talk around him, I put my hand forward to gesture to move him, so I could talk to the lad. He put--

Q. You are gesturing with the back of your hand--

A. Around.

Q. So your right hand and you're trying to lean to the left around the man.

A. Yes.

Q. Is that what you're saying, the back of your right hand?

A. Probably around his hip.

HIS HONOUR: More precisely, it's a gesture that involved the open right hand.

Q. The back of the right hand.

A. Yeah, probably around his hip or waist and continued trying to talk to--

O'SHANNESSY

Q. I'll just clarify.

A. Yes.

Q. You're not saying around. Are you saying around or are you saying--

HIS HONOUR: I read it as near.

O'SHANNESSY

Q. In the vicinity of.

A. Yes, so the gentleman was standing there. I tried to go around him like that to continue to have eye contact with the man behind the bar.

HIS HONOUR

Q. So you ducked around him, so to speak.

A. Yes, it was - yeah, it was slow and I was just trying to continue my conversation with the young lad behind the bar. He continued to interrupt.

Q. "He" being the plaintiff.

A. Yes, and, you know, at that point it was fine. He then put his hand on my shoulder and from there, I kept continuing to tell him to stay out. It was none of his business. At that point he put his hand - I sort of pushed towards - he went to his microphone to indicate he needed more security.

Q. When you say--

HIS HONOUR: Just pause there for a moment. I want to understand this.

Q. So when you said you pushed towards, you gestured with your open right hand moving forward.

A. Yeah. Well, he was pushing--

Q. Did you make physical contact with him or not?

A. After he'd placed his hand on my shoulder, yes.

Q. So when you pushed toward, indicating with your open right hand, that motion resulted in contact with the plaintiff.

A. To his chest, yes, or shoulder, yes.

O'SHANNESSY

Q. Did you ask him or do anything to indicate to him to take his hand away from you?

A. Yep. Well, I believe I asked him to take his hand off my shoulder. I indicated to him that his call for more security was an overreaction, that I was dealing with this lad here, and from that point in time, I gestured to push his hand off the microphone, to stop calling, you know, more security and from that point on, it just became a push and shove.

Q. When you say it became a push and shove, what happened?

A. Well, I believe he pushed towards me. I went back. I then sort of I would say plungely(as said) fell forward and I grabbed his shirt and pushed him towards the bar.

Q. And then what happened?

A. Then I'm on the floor, so I - I felt - until I'd seen the vision of it, I felt I'd been king hit to the side of the head.

Q. When you say you'd been king hit, can you explain that more fully.

A. Well, it was a punch that I didn't see to the side of my head and then I just remember being on the floor on my back with Mr Wright on top of me.

Q. Are you saying you don't remember how many times - you don't remember anything?

A. No, no. The only way I know is from seeing the vision.

Q. The?

A. The vision, the footage.

Q. And the only way you know what?

A. That I'd been punched, three to, you know, four times; definitely three. There was three punches to - to my head.

Q. And you say that - I'll just carry on to pick up the train.

A. Yep.

Q. After you were hit the first time, you don't remember what happened. You fell or

A. Yes.

Q. And then what do you remember?

A. I just remember being on my back. There was a lot of bodies around. There was a lot of, obviously, commotion. I could hear a woman's voice screaming. I couldn't tell you what she was saying, but I - I - that's probably the most prominent thing - is that I could hear a woman's voice screaming, sort of almost, like, in my ear but - and then I looked up and Jack is on top of me with his - he's holding me down by my shirt, and I've got my hand up, holding him, basically - you know, each other apart.

Q. You remember holding onto him?

A. Yes.

Q. And is that the extent of your memory?

A. Yeah, until it was sort of broken up. It was just a - you know, it's a blurrish moment, and it does seem to happen very quickly.”

[T104.27 – T107.33]

27. The defendant further explained his view of the events as follows:

“Q. Did you at any time consent to Mr Wright putting his hand on you?

A. No.

Q. Just before you pushed Mr Wright - why did you push him?

A. He did, you know - I don't know what - he was in my space. So, again, I was still trying to communicate. He'd put his hand on my shoulder, and I was sort of standing there, and I'd gone backwards, then come forward - whether he'd pulled me forward or I stumbled forwards - and that's when I sort of grabbed his shirt, and we went into the bar.

HIS HONOUR

Q. When you say he was in your space, did you realise at the time that perhaps he might be trying to engage you in conversation?

A. Well, he was interrupting into the conversation I was attempting to have with the guy behind the bar, but I didn't know who he was.

O'SHANNESSY

Q. After this happened, do you remember either yourself or Mr Wright getting up? Can you explain what happened.

A. Yeah, well, you know, we were on the ground. I believe Mr Wright was sort of - you know, we were both separated. Mr Wright went away, and then I was just sort of assisted to my feet, and - yeah, and then that was it.”

[T108.17 – T108.40]

28. In his oral evidence, the defendant was adamant that he had not hit the plaintiff: T108.50. His construction of what occurred once he was on his feet after the fracas and the grappling between them had been broken up, was as follows:

“Q. So when you got up, did you follow Mr Wright?

A. I went towards the bar, talking to the bar staff behind, because they'd, you know, ruined the night.

Q. And how were you feeling at that time?

A. I was angry. I was, as I said, very disappointed. It was my son's 21st. It had been an absolutely fantastic day, and in a split second it was sort of destroyed.

Q. What happened following that? Did anyone question you about the incident?

A. I left the bar after, obviously, a staff member informed me to leave. I left the bar. I actually walked down to the police station, which is down the road, at the end of the street. I knocked on the door, and attempted to go in and speak to the police, but the police station was shut.

Q. Why were you going to the police station?

A. Because I felt I'd been assaulted.”

[T109.2 – T109.19]

29. The defendant’s account of his angry and disappointed reaction in the events after he and the plaintiff had been separated involved significant understatement on his part, going by the angry and violent gesticulating movements he was directing at the plaintiff, as shown on the CCTV footage, and in respect of which other oral evidence was given stating that the defendant was at that time threatening to kill the plaintiff.

30. My assessment of the defendant’s account of the events is that it amounts to a conflated rationalisation and an incorrect reconstruction of the events that omits significant sequences of events, and which seeks to unreliably characterise his behaviour as innocent or benign. The assertion that he had not hit the plaintiff, and that he had somehow been pulled forward or had stumbled forward towards the plaintiff (T108.24) whilst the plaintiff had interrupted the defendant’s conversation with the barman (T108.31), was simply not credible in light of what is shown in the CCTV footage, and I reject that explanation.

31. In my view, the defendant, who I accept was in shock and felt stunned after the incident, for whatever reason, possibly out of embarrassment, has unreliably reconstructed the events in his own mind to avoid being seen in an adverse light in relation to the behaviour he displayed on the night in question, and which is the subject of this litigation.

32. The defendant maintained that he had been “King hit”. When asked to explain what he understood that to mean, he stated:

“A. As I understand, it is I didn't see the punch coming, and I didn't see who - I didn't see the punch coming. So after I was hit, I fell to the floor. So, at that point in time, I - to me, that's a king hit. I didn't see the punch coming; I knew I'd been hit; I felt the hit; and I fell to the ground.”

[T136.8 – T136.11]

33. I find the defendant’s statement that he did not see the punch (from the plaintiff) coming, difficult to believe, and I do not accept it, as he was facing the plaintiff directly when the plaintiff raised his right arm and punched the defendant in the head immediately after the defendant had first punched him, and had pushed him into the edge of the counter of the bar.

34. When cross-examined on the content of the CCTV footage, notwithstanding that the defendant had earlier claimed to the interviewing police officer that when he was in the bar area he had two hands (of the plaintiff) on his throat before he was hit and went to the ground (Exhibit “L”, Q&A 49), in cross-examination in these proceedings, he conceded that statement was incorrect: T140.34; T141.43.

35. An indication of the defendant’s process of reconstruction of his evidence emerges from cross-examination concerning the content of his police record of interview, as follows:

“Q. Question 91:

"Q. Have you got a clear recollection of the night an the incidents that occurred during the night?

A. Clear enough. I, I can't remember it all, no. And then that's being honest. It's, is that the punch in the head? Is that whatever it may be? I, I do recall my conversations because, as I said, all I was trying to do was keep everyone together, keep the situation."

That is the situation, isn't it, that you, because of your state that you were in at the time - namely, as you said, intoxicated - you really haven't got a clear recollection of what took place at the time that you assaulted Mr Wright, have you?

A. No.”

[T143.3 – T143.16]

36. It appears that the genesis of the unfortunate outbreak of violence in the events in question was that the defendant, having spent thousands of dollars on the function at the hotel, was (as he acknowledged at T144.45 – T144.49), irritated and upset at having bar service to his guests cut off. He had therefore gone to the bar in order to ventilate his disappointment with bar staff. This occurred in an unrestrained and intemperate manner, consistent with his state of intoxication. Unfortunately, this extended to him becoming violent and abusive to the plaintiff, who at that time was innocently fulfilling the requirements of his job.

37. I do not accept the defendant’s evidence to the stated effect that he was not yelling obscenities to the plaintiff after the fight had been broken-up: T148.25.

38. In the face of compelling evidence to the contrary, the defendant steadfastly maintained that he had done nothing wrong: T148.49. I reject that reconstruction by the defendant, which was necessarily founded on his state of intoxication, in favour of the sober recollections of the plaintiff, Mr Magnay and Ms Kelly: T146.40 – T146.46.

39. It was plain that in giving his evidence, the defendant had relied upon a reconstructed understanding of the events from viewing a shortened version of the CCTV images of the events which comprised Exhibit “3”: T107.1 – T107.6; T107.49 – T108.8.

40. For the reasons that will appear in my analysis of CCTV footage, I consider that the defendant’s testimony on key matters of dispute should be seen as being unreliable. This is because, against the background of an uncertain and at times absent memory of his own, he obtained a reconstructed account from an incomplete version of the CCTV recording, and he has understated and has sought to minimise the nature and the extent of his actions on the night in question. His evidence on key matters in dispute is not borne out by the objective record of the CCTV footage.

41. For those reasons, on material matters of conflict in the evidence of the plaintiff and the defendant, I prefer the evidence of the plaintiff, as I am satisfied that it is reliable and truthful, in contrast to the defendant’s minimised, reconstructed and unreliable account of the events.

Mr Lee Mitchell

42. Mr Mitchell, an acquaintance of the defendant, gave his evidence by audio link from a location in Queensland where he conducts a business. He had arrived at the defendant’s party at about 6:20pm on the evening in question. By the time the incident in question had occurred, he estimated that he had consumed about one and-a-half schooners of mid-strength beer. The vantage point from which he had made his observations was that he was sitting in front of a band playing in the bar, about 4 to 5 metres from where the incident occurred. He said he was “not entirely” aware of the circumstances in which the incident occurred: T158.36.

43. I formed the impression that Mr Mitchell’s evidence was confused as to the sequence of events that he said he had seen. That confusion arose from the outset of his evidence, where he said he believed he had seen the defendant talk “to a staff member behind the bar” and that he then saw that the defendant “took a bit of swipe with his hand toward him”, being that person behind the bar: T158.40. In my view, he could not have made that observation of a swiping hand movement made by the defendant toward the man behind the bar, as on the objective evidence, and on the defendant’s evidence, that movement was not directed to the person who was behind the bar.

44. In my assessment, Mr Mitchell has confused that movement, which was in fact made towards the plaintiff, who was indisputably in front of the bar. Mr Mitchell’s evidence of what he believed he had seen was as follows:

“Q. Can you tell the Court please what you observed to occur?

A. I observed Mr Bramley approach what I presumed to be a staff member behind the bar. He started talking to him. He took a bit of a swipe with his hand toward him and then an unknown gentleman, I wasn't sure who he was, then pushed himself or tried to push himself between Mr Bramley and the staff member behind the bar and from that a push and shove started, and then this gentleman punched Mr Bramley. He come back, they grabbed, they fell and then basically all hell broke loose.

Q. Did you at any time see Mr Bramley punch Mr Wright?

A. At no time did I see that happen.

Q. When they fell on the floor, do you remember the position they were in?

A. Yes, Mr Bramley was on the floor holding the gentleman's right arm.

Q. Do you remember, were any other persons involved? When you say, "All hell broke loose," can you be a little bit more specific about that?

A. I'm not sure how many, maybe three, four or even five people ran straight towards the altercation.

Q. Could you see Mr Wright at that time?

A. He was just - Mr Bramley was on the ground and the gentleman, who I presume was Mr Wright, was on top of him.

Q. Was he being attacked by other people?

A. Mr Wright was, yes.

Q. Do you know certainly how many other people or would - don't say it if you

A. I couldn't tell you for certain how many. But certainly there were two others.

Q. Were you aware whether either of those people were members of the party?

A. I wasn't sure who they were at all. The only person I knew in the altercation was Mr Bramley.

Q. Did you see Mr Wright or Mr Bramley get up off the floor?

A. I saw Mr Wright get up off the floor, yes. I didn't really see Mr Bramley because Mr Wright wasn't - yes, he wasn't in a good way.”

[Emphasis added]

[T158.38 – T159.27]

45. Although Mr Mitchell claimed to have seen what happened from the start (T160.45), I do not accept as reliable his account of how the incident occurred insofar as he asserted that the plaintiff was the initiator of the physical interchanges between himself and the defendant. He has obviously confused the plaintiff with the barman at the outset, as appears from the emphasised text in the transcript extract cited in the immediately preceding paragraph.

46. I therefore do not accept Mr Mitchell’s evidence of his claimed observations as being a reliable account of the events, despite his assertion to the contrary: T163.15 – T163.18. It is possible that the angle from which Mr Mitchell had viewed the events might have given him a distorted view. It is not necessary to resolve that question as it was not explored in the evidence. I am satisfied from the CCTV footage that Mr Mitchell has given an inaccurate account of the events.

47. Mr Mitchell’s evidence that “all of a sudden a few punches were thrown by Mr Wright” (T164.20) was an inaccurately conflated account. It was not an accurate reflection of the entire sequence of the events, as is demonstrated by an examination of the images shown in the CCTV footage comprising Exhibit “G.1”. When this account by Mr Mitchell is taken alone, it indicates that it is unlikely that he saw all of the events of the interchanges between the parties.

Mr Nigel Magnay

48. Mr Magnay is a current employee of the Hotel Brunswick. On the night in question, he was working as a duty manager at the hotel, and he was working with the plaintiff. He had started his afternoon shift at 2:30pm. He estimated the defendant’s party had consisted of about 20 – 30 persons.

49. Before the subject incident, Mr Magnay had occasion to speak to one of the defendant’s guests who was intoxicated (T76.25 – T76.28) and that person was refused service of alcohol: T77.6 – T77.12.

50. Mr Magnay had his attention drawn to the incident in question when, whilst aware that the plaintiff was stacking glasses on the bar, he heard some glasses breaking. As he was unable to make either visual or radio contact with the plaintiff at that time to check on events, and since he heard some yelling, he went to the back bar to investigate, as he felt something was wrong. When he attended there, he saw a fight between patrons in progress. That fight was one which was quite separate to the fight which involved the plaintiff and the defendant, as is evident from a viewing of the images within Exhibit “G.1”: 9:16:33 – 9:16:51.

51. When Mr Magnay had entered the bar area, he initially could not see the plaintiff, but he then saw him on the ground with 2 or 3 people on top of him, and one of those persons that was engaged with the plaintiff on the ground was the defendant: T78.30. Both Mr Magnay and Ms Kelly then made attempts to pull those persons off the plaintiff, and to then assist the plaintiff to get up from the floor: T78.24 – T78.40. He then observed Ms Kelly to attend and to assist the plaintiff to move away from the area and towards a nearby office: T79.5.

52. Whilst Mr Magnay did not recall exactly what had occurred in the interchanges between the plaintiff and the defendant, and whilst he did not recall all the details of his role in separating them (T78.42 – T79.9), he recalled the defendant making threats to the plaintiff from a distance after they had been separated, as follows:

“Q. What else did you see Mr Bramley do?

A. He was following Jack and, like, pointing going, like, "I'm going to fucking kill you," trying to chase him into the office and, yeah, he was pretty aggressive.”

[T79.19 – T79.22]

53. From his observations of the events, Mr Magnay formed the opinion that the defendant was continuing to behave in an aggressive and violent manner after he and the plaintiff had been separated: T79.49. His opinion in that regard is plainly borne out by the images shown in the CCTV footage comprising Exhibit “G.1”.

54. In those events, Mr Magnay then asked the defendant to leave the hotel. He recounted that conversation in the following terms:

“Q. After Mr Wright went into the office what did Mr Bramley do?

A. I was telling Paul to leave the hotel and then he was saying, like, "We're going to leave anyway. This is a shit hotel. I want a refund." He then - yeah, he was pretty - his mates were there with him and then, yeah, as I said, "Just leave the hotel, mate," and then they went out the back, the back entrance.

Q. Did he say anything else to you other than, "This is a shithole, we want a refund"? Do you recall?

A. I don't recall.”

[T80.17 – T80.25]

55. Mr Magnay then described the subsequent police attendance at the scene, and he recounted that he had given the police access to the hotel’s CCTV footage of the incident in question: T80.40 – T80.50.

56. Mr Magnay said that at the time, he felt sick on account of seeing the bloodied appearance of the plaintiff: T81.26. He had formed the impression that at the time he spoke to the defendant to ask him to leave the hotel, the defendant was not very “intoxicated at all”, in that he did not think he was slurring his speech, and he did not appear to be unsteady: T81.29 – T81.35.

57. Apart from the latter observations (which seemed to be at odds with the defendant’s more contemporaneous concession that he was intoxicated, and which could possibly be explained by either the passage of time and uncertain memory on Mr Magnay’s part, or perhaps his cited emotional reaction to the events, or perhaps because the defendant did not necessarily show much in the way of signs of his undoubted intoxication), I nevertheless consider that Mr Magnay’s account is otherwise generally reliable, as it is consistent with the objective record comprising the CCTV footage within Exhibit “G.1”.

Ms Rachel Kelly

58. On the night in question, Ms Kelly was employed at the hotel as a bar supervisor. She now works in an unrelated medical field. She had started her afternoon shift at about 3:30pm on that day. At the time, her duties were to ensure service, manage the staff, and to enforce the hotel’s legal obligations concerning the responsible service of alcohol.

59. Ms Kelly was aware of the fact of the defendant’s day-time function, and of the fact that the defendant’s group had at some stage in the evening been relocated from the marquee and into the hotel insofar as the group aggregated into the back bar. In the course of the evening, at about 9:00pm, she had occasion to decide that one of the defendant’s party should be refused further service of alcohol.

60. Ms Kelly believed that hotel staff had spoken to that person and to his surrounding group, including the defendant, and had informed them that person could not be served further alcohol, and if anyone obtained further alcohol for that person, then the group would have to leave the hotel: T87.26 – T88.17. In cross-examination, Ms Kelly fairly acknowledged that she saw but had not heard the actual conversation to that effect: T93.17 – T93.26. However, the defendant confirmed the fact that conversation had occurred.

61. Ms Kelly recounted the fact that a member of the defendant’s group had subsequently obtained a further alcoholic drink for the person who had earlier been refused further service of alcohol. She notified management that the group would be required to leave. She then recounted how she then heard Mr Magnay ask the group to go to their pre-booked accommodation upstairs: T88.32.

62. Ms Kelly then related the interchange between the plaintiff and the defendant as the defendant approached the bar, in the following terms:

“Q. What did you then see?

A. I saw Mr Bramley walk over to the bar. He looked very angry and his body language was very tense and he started talking to Jack, pointing his finger and being very loud and abusive towards him.

Q. What did he say to him? Did you hear anything that he said?

A. The only bit that I can recall - am I allowed to swear?

Q. Yes.

A. He said, "You can't fucking do this to me. I've spent a lot of money in this hotel today," and that's about all I can recall.

Q. What did you then see happen?

A. Mr Bramley pushed Jack into the bar. Jack went to grab his radio on his collar and Mr Bramley sort of smacked it away. Jack kind of looked like he was trying to push him forward because he was sort of - Jack was pinned against the bar and then Mr Bramley started to trying to punch him and then it sort of went to ground so I couldn't see because of the bar what happened after that initial incident.

Q. Did you see Mr Wright or Jack as you refer to him before going to the ground, punch Mr Bramley four times, savagely punch him four times?

A. No.

Q. Did you see anything happen with glasses on the bar?

A. All the glasses had smashed when Jack had been shoved against the bar. There was broken glass, quite a lot of it all over the bar and on the floor as well.

Q. Did you then take some action after you saw Mr Bramley and Mr Wright go to the ground?

A. Yeah, I ran around the bar to where they were on the floor and tried to get in between them and I was grabbing Jack trying to pull him off Mr Bramley.

Q. Were there other persons in that vicinity at the same time?

A. Yeah, there was a tall gentleman in a black hat whose name I don't know. He was also there.

Q. Did you see him in the earlier in the day with Mr Bramley?

A. Yeah, he was part of their party. They all had Hawaiian shirts on so it was very easy to tell. So he'd sort of run in as soon as they - the altercation had started, this gentleman ran in but, yeah, I saw them on the floor and they were hitting Jack.

Q. What then happened?

A. I managed to get Jack along - off the ground and we started to run towards the office. Mr Bramley and a couple of his mates that were involved in that were following us and I could hear Mr Bramley shouting, being loud and abusive.

Q. What was the saying?

A. "I'm going to fucking kill you." That was the most of what I heard. It was very loud and very scary and I took Jack into the office and locked the door so that there could be no further injury.

HIS HONOUR

Q. Why were you scared?

A. Because it was really aggressive and there was quite a lot of them and from my recollection it was just myself and Jack and quite a lot of this group of people that were there, so - and I'd sort of put myself in the middle of it but I wanted to get Jack out of there because I thought they were going to do a lot of damage to him.”

[T89.2 – T90.14]

63. The context of Ms Kelly’s observations was that she was completely focussed on the events, and she was watching the defendant’s group, as would be expected, given her duties at the hotel on the night in question: T94.30 – T94.33.

64. Ms Kelly acknowledged that whilst the altercation involving the plaintiff and the defendant was in progress, she saw someone come over and start hitting the plaintiff: T94.49. She expanded upon that answer, and agreed that there might have been 2 or 3 such people hitting the plaintiff: T96.6. She confirmed that despite the fact punches were being thrown, she went in to separate them, and she tried to get the plaintiff out of there, and to get him away into the office: T96.13 – T96.40. After the circumstances had settled, Ms Kelly observed the plaintiff to have a ripped shirt, and she observed quite a lot of blood on the plaintiff, noting that he was bleeding from his nose, and from his face. Her actions, by which she had placed herself in that situation of danger, were selfless and courageous in the circumstances.

65. It was suggested to Ms Kelly that she had given the content of her evidence in a form that was favourable to the plaintiff’s case because of her collegiate friendship with the plaintiff T97.1 – T97.4. I accept her rejection of that proposition. I am satisfied that Ms Kelly gave her evidence truthfully and accurately to the best of her recollection. She made concessions when it was appropriate for her to do so. The substance of her account was borne out by the objective CCTV recording, and I therefore accept the truthfulness and the reliability of her evidence in its entirety.

Senior Constable Cooke

66. Senior Constable Cooke attended the hotel as part of the police response on being called to the fracas. He observed the plaintiff to have blood on his face, which was swollen and appearing to him as if it had been hit. He also observed the plaintiff’s shirt to have been ripped. He was the officer who conducted the electronically recorded record of interview with the defendant at 4:00pm on the following day, a Sunday: Exhibit “L”. He had taken the photograph of the plaintiff’s appearance on the night in question. Exhibit “H”. He had also prepared the COPS database entries: Exhibit “1” and Exhibit “2”. His evidence was of a formal nature, linking the events of the police investigation. No credit or reliability of evidence issues arose from his evidence.

67. Before addressing the issues calling for decision, it is necessary to interpret and summarise the CCTV footage.

CCTV recordings of the events

68. There were two CCTV security cameras located within the hotel that captured images of the melee in the back bar, including the moments of prequel and sequel to that melee, taken from different camera angles. Those CCTV images were produced on subpoena from police records and they were tendered in the plaintiff’s case as Exhibits “G.1” and “G.2”. The time signatures on those images commenced at 9:15:46 seconds and finished at 9:18:05 seconds, a total recorded time of some 2 minutes 19 seconds.

69. The defendant tendered a different version of Exhibit “G.1” which appeared to show fewer recorded frames, or which ran at a faster speed, where some of the images were less clear due to the presence of pixelated artefacts. That version was limited to a duration of 1 minute 27 seconds: Exhibit “3”. That tender was the subject of a limiting order as to the utility of that recording, as already identified at paragraph [13] above.

70. The CCTV footage comprising Exhibit “G.1” has greatly assisted the task of fact finding where it was necessary to compare the sober recollections and accounts of the plaintiff, Mr Magnay and Ms Kelly, to the limited observations of Mr Mitchell, and the reconstructed account given by the defendant, that was based on his sparse and reconstructed recollection as at 22 February 2015, as was aided by his viewing of Exhibit “3”. The CCTV footage shown on Exhibit “G.2” is not all that helpful because the images are very dark and the footage plays at a very fast rate.

Facts

71. In the factual findings that follow, references are made to the CCTV images shown in Exhibit “G.1” as I consider that exhibit provides the most useful point of reference. Where reference is made to time signatures on those images, these all relate to the events portrayed in the images comprising Exhibit “G.1” as recorded by a hotel CCTV camera on the evening in question, between 9:15:46pm and 9:18:05pm.

72. At the commencement of those images, the plaintiff is seen to have been initially standing in front of the counter of the back bar, facing it, and with his back towards the public area. Whilst handling some empty beer glasses, he was momentarily distracted, and looked back over his left shoulder, and he then continued to attend to the task of placing used beer glasses intended for washing, onto the counter of the bar: 9:15:46 - 9:15:55.

73. Very shortly afterwards, the defendant is seen to have approached the front counter of the bar from the plaintiff’s rear left side, and as he did so, the plaintiff turned to face him. The defendant then continued his approach to a position very close to the front of the plaintiff, and as he did so, he proceeded to extend his right arm and hand out towards the plaintiff’s left side in what appeared on the CCTV images to be the commencement of a manoeuvre in which he touched the plaintiff: 9:15:56 - 9:15:57. The plaintiff said of those events, and I accept, that at that time, the defendant had, without authority or justification, positioned his right hand onto the plaintiff’s left biceps region, on his upper left arm: T18.27.

74. At that time, I accept that the defendant was intent on speaking to the barman standing behind the bar, he being the person who had earlier refused the service of alcohol to the defendant’s party. The circumstances of that refusal were as already recounted by Mr Magnay and Ms Kelly at paragraphs [49], and [60] to [62] above. In those circumstances, the defendant was wanting to remonstrate with the barman to express his disappointment at the decision to stop the service of alcohol to his party, and to require the party to go upstairs to their pre-arranged accommodation: T77.9.

75. Between 9:16:00 and 9:16:09, whilst the defendant continued to have his right hand on the plaintiff’s left arm, the defendant proceeded to adopt an angled or leaning posture towards his right, whilst seeking to look around the plaintiff, and towards the barman. At that time, the plaintiff’s right forearm can be seen to have been resting on the ledge of the bar. The plaintiff then moved back slightly as the defendant addressed the barman. It appears to me that the defendant then had part of his right hand on the plaintiff’s left shoulder whilst he continued to gesticulate and to talk to the barman, as can be seen on a close examination of that recorded segment, which I interpret to show the defendant’s right hand, probably his fingertips, partly located on the plaintiff’s left shoulder: 9:16:00 to 9:16:04.

76. In those events, whilst a conversation appeared to continue, the defendant’s left hand is seen to suddenly strike the plaintiff on the right side of his face, whilst the plaintiff’s right hand continued to remain out of sight: 9:16:03. At that time, the plaintiff then moved his slightly extended left arm and hand up to the defendant’s right shoulder, and then made open handed contact with that shoulder, as if to create an arm’s length space of separation between the two of them (at 9:16:04), and as he did so, the plaintiff’s right hand reached up to his own right shirt collar, in what the plaintiff described as an attempt to use his collar microphone to call hotel security personnel (at 9:16:06), at which time the defendant is then seen to have used his left hand to again strike the plaintiff, in a rapid and poking manner, this time in the region of the neck or upper body, or near the base of the plaintiff’s neck (at 9:16:07).

77. Between 9:16:08 and 9:16:13, the plaintiff physically reacted to that poking strike (at 9:16:09) and in doing so, used his left arm and open hand, which by then was extended, and which he then placed on the shirt or collar front of the defendant’s right shoulder. In doing so, the plaintiff then pushed the defendant back and away from him, in what I interpret as a movement of self-protection. The defendant then reacted to that movement by what appeared to be a shift of his body weight and a step backwards. He then lunged forward, using a forceful and deliberate blow of his right upper limb towards the plaintiff’s face with his fist: 9:16:10. That blow connected, and by way of reaction, the plaintiff was then pushed back into the ledge of the bar counter, at which time (9:16:12) the defendant stepped back, and then moved forward again with a lunging movement of his body towards the plaintiff, and this time using his right forearm, if not his right fist, to deliver an obviously forceful swinging blow to the plaintiff’s upper body, whilst at the same time, lunging forward with his own body, whilst also holding onto the plaintiff’s right upper arm with his left hand, and again pushing the plaintiff into the ledge of the bar. At that time, whilst the defendant remained directly in front of him in very close proximity, the plaintiff moved, and then straightened himself up, raised his right arm and then punched downward towards the defendant’s head, which was at a lower level than his own head and shoulders, and that blow then connected: 9:16:13.

78. Between 9:16:13 and 9:16:14, the plaintiff and the defendant were engaged in a momentary grapple, and it appears that the commotion associated with those circumstances then attracted the attention of some Hawaiian-shirted men from the defendant’s party, who can be seen to have started to move quickly towards the fracas (at 9:16:14), by which time the plaintiff had grappled, pushed and twisted the defendant towards his own left, with the defendant’s head then apparently making contact against the ledge of the bar counter before the defendant was then either, pushed, thrown, or had fallen down, onto the floor, and out of the line of sight of the CCTV camera recording the images on Exhibit “G.1”: 9:16:14.

79. By 9:16:14, a Hawaiian-shirted member of the defendant’s party, and another man, a blue-shirted member of that party, had arrived on the scene. One of them was the defendant’s brother-in-law. As the defendant was seen to have disappeared from camera view as he went down onto the floor, those men then quickly proceeded to manhandle the plaintiff down onto the floor, and also out of camera view. As they did so (between 9:16:14 and 9:16:21) they appeared to be giving their visual and physical attention to events below them on the floor, by bending forward towards the floor, using their hands and arms, and in the case of the dark blue shirted man, in a cowardly fashion, he rained repeated, at least 5, fist blows towards the fracas below. It is not clear as to whether these blows had actually connected with the plaintiff who was on the floor with the defendant.

80. By 9:16:21, there was an aggregate of 5 members of the defendant’s group involved in the ensuing fracas, whilst the plaintiff and the defendant at that time continued to remain on the floor, and out of camera view.

81. By 9:16:21, other hotel staff can be seen to seek to intervene. Somewhat bravely, Ms Kelly left her position of safety from behind the segregated area of the bar, and tried to break-up the fracas. She was then assisted in that course by the barman, and a tall white T-shirted bearded man, apparently a hotel patron, who came into the scene from an adjacent bar.

82. In those events, and against the resistance of two large men from the defendant’s party, who appeared to be holding the plaintiff, or the defendant, or both of them, down onto the floor, Ms Kelly managed to separate the plaintiff from the physical attentions of those men, and, it appears, from the grip of the defendant, who was then also still on the floor. Upon disengaging them, Ms Kelly then helped the plaintiff to get to his feet, and she then helped him to walk away from the group of the defendant’s party: 9:17:37. At the same time, the barman was trying to herd or contain the milling Hawaiian-shirted group of men, including the defendant, who was by then, also on his feet: 9:17:34.

83. Between 9:17:41 and 9:17:47, Ms Kelly helped the plaintiff to walk away to the right and out of camera view, with some 5 – 6 members of the defendant’s group, including the defendant, quickly following them, and in that process, they were pushing the hotel barman out of the way, and ignoring his obvious efforts to contain them to a fixed location in the bar area: 9:17:47.

84. At 9:17:54, the recording shows the defendant and his group of supporters were located at the end of the bar on the right side on the camera view, and the defendant was seen to be actively and repeatedly gesticulating in an aggressive manner and in an apparently agitated state, between 9:17:56 and 9:18:04, until some members of his party then led him away, and out of camera view. I find it was at around that time, that the defendant issued his verbal threat to kill the plaintiff. The circumstances were undoubtedly fearsome and frightening to the plaintiff. The CCTV recording is then seen to have stopped at 9:18:05.

85. The detail of the matters of fact that relate to the plaintiff’s post-accident history and to the assessment of the claim for damages, will be taken up later in the context of a consideration of the plaintiff’s entitlement to damages. I now turn to a consideration of the issues calling for decision, as identified at paragraph [10] above.

Issue 1 – Sequence and manner of touching

86. I find that following an uninterrupted viewing of the CCTV images within Exhibit “G.1”, “G.2” and Exhibit “3”, and on the basis of the analysis of those images as set out between paragraphs [72] to [85] above, the factual accuracy of the plaintiff’s evidence is confirmed as showing that upon the defendant’s entry into the plaintiff’s immediate vicinity and space, and in the subsequent physical interactions, it was the defendant who had first touched the plaintiff, without authority, consent, or good reason, and not vice versa, as claimed by the defendant. I find that the defendant’s physical contact with the plaintiff escalated as the defendant’s agitation and aggression towards the plaintiff progressively increased, between 9:15:46pm and 9:18:05pm. I find that this physical contact occurred unreasonably, without the plaintiff’s concurrence, either express or implied.

Issue 2 – Whether assault or self-defence

87. The intentional tort of assault is constituted by; “… creating in another person an apprehension of imminent harmful or offensive contact. If the threat is actually carried out, the whole incident is properly described as an ‘assault and battery’. Usually both offences occur in rapid succession, and in common parlance, the word ‘assault’ is frequently used to include a battery”: The Law of Torts, John G Fleming, 10th ed, 2011, p 34, [2.70]. The tort is made out where an act of a person causes another person to reasonably apprehend a threat of force or violence: State of NSW v McMaster [2015] NSWCA 228, at [205], applying Barton v Armstrong [1969] 2 NSWLR 451, at p 455.

88. It is plain from the evidence, and from my factual analysis and findings as set out above, that the plaintiff was both physically and verbally assaulted by the defendant, in a frightening sequence of events that occurred between 9:15:46pm and 9:18:05pm on the evening of 21 February 2015, concluding with a violent and aggressively gesticulating threat from the defendant that he would kill the plaintiff. In no way could the defendant’s conduct be reasonably described as being in self-defence.

89. The physical assault by the defendant was brutal. It was unprovoked and it was sustained, including during a continued grapple until separation of the parties occurred due to the efforts of those who went to the plaintiff’s rescue and assistance. The verbal component of the assault, including the threat to kill, was made angrily after the defendant had already well demonstrated that he had an undoubted capacity to deliver violence to the plaintiff.

90. I am satisfied that in those events, the defendant intended the plaintiff to suffer physical harm from the blows he delivered, and to experience fear from the verbal threats that he had made.

91. I reject the suggestion that the defendant had acted in self-defence. The defendant’s actions were wholly disproportionate to the circumstances of the plaintiff seeking to create a space between them, and the defendant’s actions were undoubtedly influenced by his alcohol intoxication. There were no mitigating circumstances.

92. In the culmination of those events, I find that the ultimate threat by the defendant to kill the plaintiff, was not just a vernacular or anecdotal manner of speech, but it was a deliberate threat calculated to cause fear in the mind of the plaintiff, consistent with the anger, fury and aggression that had been exhibited by the defendant in the earlier physical exchanges which had preceded that last threat. It was a fear-inducing threat issued by an enraged defendant who needed to be restrained by many hands from achieving further physical contact with the plaintiff, who was undoubtedly the intended object of such threats.

93. The defendant’s attitude in the early stage of those events was angry and aggressive, and when the plaintiff tried to establish a physical distance between them to have a necessary conversation with the defendant in his capacity as bar manager, the defendant responded with consecutive violent and forceful punches, first with his left fist, and then with his right fist. I am left in no doubt that he delivered those punches with deliberative intent to injure the plaintiff, and in rapid succession, after taking aim, with considered and considerable force. It was the very kind of activity which he acknowledged in his record of interview as constituting an assault: Exhibit “L”, Q & A 115.

94. I am satisfied from both the oral evidence, which I have accepted, and from the CCTV footage in evidence, that the defendant was the verbal and physical aggressor who had initiated physical contact that occurred without the consent of the plaintiff. I am also satisfied that the defendant was in an angry state at the time, and that he had sequentially escalated his verbal aggression into threatening physical gestures that culminated in unauthorised physical contact with the plaintiff, and when the plaintiff sought to create a defensive distance between himself and the defendant, the defendant then reacted by delivering a series of violent punches to the plaintiff, and sought to wrestle the plaintiff in an attempt to overpower him. In those events, the plaintiff was either pushed, thrown or dragged to the floor, where the grappling of the parties continued for several minutes until they were separated. In those events, the plaintiff was surrounded by the defendant’s supporters, some of whom were being physically violent in an intimidating scene.

95. Those circumstances clearly amounted to a fearful and violent assault on the plaintiff, who was merely carrying out his duties as a bar manager, which included the legal obligation of ensuring the responsible service of alcohol.

96. I find that the defendant’s actions in the circumstances were intentional, unrestrained and disproportionate. The defendant displayed gratuitous thuggish behaviour of an extreme kind, delivered by a man who was more powerfully built than the plaintiff, weighing something in the order of 120kgs, and who must have known that his enraged behaviour, unrestrained actions, and his punches, would inflict fear and injury to the mind and body of the plaintiff.

97. I reject the defendant’s claim that his actions were carried out in self-defence in response to an alleged earlier battery on him by the plaintiff. The defendant made the first physical contact, and the plaintiff’s progressive reactions in trying to protect himself from the defendant’s escalating violent behaviour were both reasonable and proportionate to those circumstances. Given the ensuing fracas, the plaintiff was fortunate that his resultant physical injuries were not of a much more serious and lasting nature.

98. Given the unprovoked and sustained nature of the physical interchanges, and the defendant’s violent threats to kill the plaintiff after physical contact had ceased, I consider that in addition to general compensatory damages for assault, the defendant’s conduct calls for an award of aggravated damages. I take that view because the threat to kill, which followed the violent physical assault which had already drawn the plaintiff’s blood, was calculated to instil fear in the plaintiff.

Issue 3 – Damages, including aggravated damages

99. Before assessing the plaintiff’s damages, it is necessary to review the plaintiff’s history of medical and allied assessments, and to identify the plaintiff’s disabilities which flowed as a consequence of the described assault.

Medical and allied assessments

100. In the paragraphs that follow, the history of the plaintiff’s examinations and his attendances upon medical and allied practitioners, is reviewed in the chronological sequence in which they took place.

101. On 23 January 2015, the plaintiff consulted his general practitioner, Dr John Holmes. He subsequently saw Dr Holmes on 6 further occasions regarding the consequences of the subject assault, namely, 20 March 2015, 14 May 2015, 23 June 2015, 23 July 2015, 17 August 2015, and 2 September 2015.

102. Dr Holmes noted that on his initial examination, the plaintiff had bruising around both eyes, swelling of the nose with tenderness, abrasions to the right side of the neck, tenderness to the neck and upper back muscles, associated with a reduced range of movement of the neck. He diagnosed soft tissue trauma comprising bruising and strains, and Post-Traumatic Stress Disorder [“PTSD”] requiring anti-depressant medication and counselling.

103. Dr Holmes identified the plaintiff’s complaints of symptoms as persisting neck pain radiating to the left shoulder area, and psychological symptoms characterised by anxiety, depression and sleep disturbance, which required medication and referral to a psychologist.

104. On 2 March 2015, the plaintiff consulted a chiropractor, Dr Shane Eade for lower and mid back pain and neck pain. Dr Eade obtained a history from the plaintiff of him having been thrown against a bar. The basic complaint made by the plaintiff at that time was of feeling generally sore all over, and feeling tightness in his whole body. Dr Eade noticed that the plaintiff was still anxious and emotionally shaken up by the ordeal he had described. The treatment given by Dr Eade was directed at reducing muscle spasm and hyper-tonicity, using soft tissue therapy, over the course of 4 treatments between 2 March 2015 and 18 December 2015. Dr Eade’s opinion was that the plaintiff had suffered extensive musculoskeletal sprain/strain injuries as a result of the described attack.

105. On 2 June 2015, the plaintiff commenced attending upon Mr Peter Chown, to obtain psychological treatment for the ongoing trauma-related anxiety and related psychological difficulties he was experiencing. There were 8 such consultations with Mr Chown between 2 June 2015 and 29 January 2016.

106. The plaintiff’s complaints, as recorded by Mr Chown over the course of that clinical contact, included severe anxiety, depression, sleeplessness and sleep disturbance, hyper-arousal and hyper-vigilance, especially in the workplace, flashbacks, intrusive thoughts and memories, avoidance behaviour, loss of confidence, feelings of helplessness, suicidal ideation, loss of interest, and withdrawal from normal social and family activities.

107. Mr Chown noted these problems were pervasive for the plaintiff, and were disruptive of his functioning. Mr Chown was of the opinion the plaintiff had developed secondary symptoms of major depression, which was greatly exacerbated by his perceived lack of support from his employer, and from the senior management staff of his employer, following these events.

108. Mr Chown was also of the opinion that the plaintiff was suffering from PTSD, with persistent symptoms causing a significant level of functional impairment, which made the plaintiff vulnerable to triggers causing psychological distress. Mr Chown considered that this condition developed as a direct result of the incident the subject of the proceedings. Mr Chown considered the plaintiff needed a course of anti-depressant medication to assist him with mood disturbances, and this was discussed and arranged with the plaintiff’s general practitioners. Mr Chown reported that the plaintiff was diligent with his treatment but at the last consultation, Mr Chown noted that the plaintiff was still experiencing the residual symptoms of PTSD, including bouts of severe anxiety, sleep disturbance, and some avoidant behaviour, with continued hyper-vigilance and anxiety in the workplace, and including other situational triggers, such occurrences causing the plaintiff to experience low mood for days when triggers occur.

109. On 12 January 2016, the plaintiff’s physiotherapist, Mr Nigel Pitman, prepared a report setting out the details of 5 incident-related treatment sessions he had with the plaintiff. The treatment was noted to have been for severe cervico-thoracic pain and associated headaches following the subject incident. On examination, Mr Pitman noted an antalgic posture of the neck with increased thoracic kyphosis, with restricted neck mobility in extension, with decrease in thoracic mobility, and tightness of the muscles in the upper quadrant, which included the upper trapezius, levator scapulae, scalenes, and pectoris minor muscles. The physiotherapy treatment that he provided to the plaintiff was up to August 2016, which seemed to be the point of improvement, subject to intermittent exacerbations.

110. On 23 March 2016, at the request of his solicitor, the plaintiff was examined by Dr John McKee, a consultant general surgeon. Dr McKee undertook a physical examination of the plaintiff for the purpose of assessing the physical effects of the assault. Relevant to his specialty, Dr McKee identified the plaintiff’s complaints as mainly comprising troublesome intermittent discomfort and tightness about the head and neck, more pronounced on the right side than on the left side. He noted the plaintiff’s report that pain or discomfort was brought on or aggravated by particular sleeping positions. The plaintiff also reported experiencing a “cracking” sensation on both sides of his neck on certain movements.

111. On examination of the plaintiff, Dr McKee found no abnormalities of the neck, upper limbs or the thoraco-lumbar spine. Dr McKee was of the opinion that the plaintiff’s experience of the continuing neck and inter-scapular symptoms would not need medication or further physical treatment from a physiotherapist or a chiropractor. He deferred commenting on the plaintiff’s psychological symptoms because he considered that such matters were outside the remit of his expertise.

112. On 6 May 2016, at the request of his solicitor, the plaintiff was examined by Dr Stephen Huntsman, a consultant psychiatrist. After reviewing the plaintiff’s history and the history of the events that are the subject of the litigation, Dr Huntsman made the then applicable DSM IV diagnoses that the plaintiff was suffering from chronic PTSD, and an adjustment disorder with depressed mood. Dr Huntsman concluded that the plaintiff was no longer fit to work in a hotel environment in which he may encounter patrons who might be or become aggressive, or in situations where he may feel endangered.

113. Dr Huntsman consequently concluded that the plaintiff would be effectively unable to work as a hotel manager, as face-to-face contact is an essential part of that role. In that context, it was noted that the plaintiff’s persisting symptoms of anxiety have limited his ability to perform his duties, which has led to him ceasing his employment in the hotel industry. Dr Huntsman also expressed the view that the plaintiff remained unsuited to any occupation where he may be exposed to aggression, and to the risk of assault.

114. Significantly, Dr Huntsman considered the plaintiff’s PTSD symptoms were likely to remain chronic, with gradual improvement over time, but without complete resolution of symptoms. Dr Huntsman also identified a pre-disposition in the plaintiff that was created by the effects of the subject assault, which meant that the plaintiff was rendered vulnerable to developing more severe symptoms of anxiety if exposed to an assault in the future, which would then result in significant exacerbation of the plaintiff’s PTSD. Dr Huntsman believes that the plaintiff’s symptoms of adjustment disorder will resolve over time, provided the plaintiff is successful in establishing an alternative career path, and provided he is able to feel that there has been a just outcome of the events in question.

Disabilities

115. Given my acceptance of the plaintiff's credit and reliability as a witness, and my acceptance of his evidence generally, in the absence of significant challenge on matters of history, I propose to treat the above summaries extracted from the medical history as evidence of the plaintiff's early post-injury difficulties and treatment: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995.

116. Consistent with that approach, I have drawn upon the unchallenged content of the tendered medical reports to identify relevant aspects of the plaintiff's history that are influential on the assessment of damages for non-economic loss, and to record my findings as to his remaining disabilities.

117. The plaintiff’s physical problems concerning his nose, neck, and thoraco-lumbar spine largely resolved after about 13 months, which was when Dr McKee examined him. Dr McKee noted the plaintiff still had neck discomfort after being in particular sleeping positions, and experienced an occasional “cracking” sensation in his neck. Those remaining problems are now of a relatively minor nature.

118. The more significant and lasting problems are the psychological sequelae of chronic PTSD and adjustment disorder with depressed mood. Whilst the plaintiff’s adjustment disorder is expected to recede after he becomes more established in an alternative career path, and following the conclusion of this litigation, the same cannot be said for his chronic PTSD.

119. The latter condition has closed off and precluded the plaintiff from continuing in what was his chosen field of employment. The symptoms are unlikely to completely resolve, and the plaintiff remains vulnerable to developing symptoms of anxiety and exacerbation of his PTSD in the face of emotional triggers, which are likely to be random, especially in situations where he may face aggressive behaviour from others. As a result, the plaintiff has become socially withdrawn and encounters the serious psychological problems outlined at paragraph [106] above. There is no evidence that would enable a confident or a reasoned conclusion that there will be a dramatic improvement in respect of those matters, and certainly not in the short term.

120. The plaintiff had not suffered depression and anxiety before the defendant assaulted him: T29.20 – T29.25. In the months that initially followed the assault he struggled to get out of bed, and did not want to go to, or to be at work, and things that he normally found to be easy for him, “became all too much”: T30.15 – T30.31.

121. Whilst his nightmares have ceased, he has become less active, and has gained about 20kgs in weight. He feels he still needs the help of Mr Chown, his treating psychologist: T30.43 – T31.38. He finds the post-assault stress, anxiety and reduced motivation debilitating: T53.16. A claim is made for future treatment expenses.

122. I consider those matters warrant a significant award of general damages for the plaintiff’s pain, suffering, and the loss of amenity of his life.

Employment consequences of the assault

123. On his return to work the plaintiff was experiencing significant anxiety towards his work: T27.50. He would experience a build-up of anxiety as he was getting ready for work: T28.4. He began to fear going back to work because of the presence of large groups and he was concerned there may be a recurrence of a similar incident to the one which involved the defendant: T28.7 – T28.10.

124. The plaintiff found that at work, he was anxious and not able to cope with confrontation, and he would seek to distance himself from large groups or gatherings in the hotel, especially with males: T29.35 –T29.49.

125. Ultimately, for those reasons, he felt he could no longer pursue moving forward in his work in the hotel or hospitality industry as it became too much for him to deal with, whereas beforehand, he had managed his work with ease: T30.15 – T30.25.

126. In February/March 2016, the plaintiff reached a tipping point by which time he decided that he should leave his employment at the hotel. He described this in the following terms:

“Q. Is there any reason why you did so?

A. There was a minor incident that occurred, I believe a couple of days prior to me ceasing work, that in a way just tipped me over the edge. I couldn't deal with the normal situations that I would have been able to deal with prior to the incident and with that, I decided that I wasn't really getting any better by being in that work environment where it's causing me a lot of anxiety, so I decided to resign from the hotel.”

[T32.13 – T32.19]

127. The history of that incident, which occurred on 21 February 2016, which happened to be the anniversary of the incident which is the subject of these proceedings, was described in the report of Dr McKee in the following terms:

“Second Incident

According to Mr Wright, about a month before he had seen me, and on Sunday 21 February 2016, he had again been involved in a scuffle at Brunswick Heads Hotel. A male patron, in his thirties, had become violent after being asked to leave the Hotel. Both Mr Wright and assistant manager had ended up scuffling on the floor. Mr Wright thought that he had acquired "bruised" ribs as he had been pushed into the furniture. The following day he had attended Dr Matthew Murphy at Ocean Shores Medical Practice and the following day a CT scan of his chest had revealed no abnormality, and in particular no rib or thoracic spine fracture had been seen. He had rested and had eventually been able to return to work on 26 March 2016.”

[Exhibit “B”, p 2]

128. Within a week of that incident, he decided to buy a business comprising a fish and chip and burger bar: T32.27 – T32.41. He runs that business from behind the scenes, employing others to serve and to do the cooking, and although he hopes to build up that business, at present this means he earns less than what he would otherwise earn if he had stayed in his pre-assault employment.

129. I find that the plaintiff’s realisation that he needed to change careers due to his inability to deal with the associated stress and anxiety which stemmed from the assault, and the problems he was experiencing in approaching people in the course of his work in the hotel (T53.40 – T53.45) was a realistic one in the circumstances.

130. It was suggested to the plaintiff that the second assault, as described in paragraphs [126] and [127] above, was not the tipping point for his decision to change his career as he had already began the process of buying a business before that assault occurred: T54.1 – T54.3. Whilst the plaintiff conceded in cross-examination that at around that time he had been looking at buying the business (T54.4), that concession was not inconsistent with his earlier evidence that he had made up his mind to get out of the hotel industry before the occurrence of the second incident (T32.38) and it was not inconsistent with his evidence that the owner of the business he bought decided to sell at short notice, giving him the chance to make the purchase: T32.30.

131. In cross-examination directed at seeking to suggest that the plaintiff was not as badly affected by stress, because, it was suggested, he had sufficient motivation to decide to buy a business, and to take on all the responsibilities entailed in such an enterprise, the plaintiff responded as follows:

“A. I don't believe it's a motivation, it was a - me realising I needed to change careers. I wasn't dealing with the stress, the anxiety, and all that was caused by that incident. I couldn't deal with that anymore, being in the hotel, where there's lot of people, where it was my job to approach people and that, where I couldn't do that.”

[T53.41 – T53.45]

132. The plaintiff rejected the suggestion that the second incident was not “the tipping point” because he had already begun to buy his business. In response to that suggestion, he said he was looking at buying the business at the time: T54.3. That evidence was not inherently improbable, and I accept it as credible and truthful. The answer in question was not further explored as to whether it related to the time of the incident on 21 February 2016, or when he returned to work on 21 March 2016.

Mitigation

133. I find that the summary outlined at paragraphs [100] to [132] above indicates that the plaintiff has taken reasonable steps to mitigate the effects of the assault upon him by the defendant by pursuing appropriate physical and psychological treatments. The defendant made no contrary submissions.

Actuarial factors

134. At the age of 27 years, the plaintiff has an expected median life span of 54 years. He has an expected working life of 40 years to age 67.

General compensatory damages

135. The matters of fact outlined at paragraphs [100] to [133] above call for a substantial award of damages to compensate the plaintiff for his pain, suffering, and for the loss of the amenity of his life. Such damages are at large and are to be assessed roundly, subject to considerations of soundness in formulating a discretionary judgment where there are no comparable cases and where the matters calling for assessment have had an intrinsic effect on the plaintiff: Bresatz v Przibilla [1962] HCA 54; (1962) 108 CLR 541, at p 549; Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118, at [10] – [11]; pp 124 – 125; Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327, at [69].

136. The plaintiff did not merely suffer hurt feelings from harsh words uttered. He was brutally assaulted, with lasting psychological consequences. In that regard, as indicated to the parties, having regard to the plaintiff’s relatively young age, the chronic nature of his PTSD, and the impact the assault has had on his life, I consider the appropriate range for such damages to be between $80,000 and $100,000.

137. The elements which lead me to that view are the described immediate physical sequelae, which largely resolved after about 13 months, but continue to an only limited degree, the absolutely petrifying experience the plaintiff underwent in the events, not knowing what was going to happen to him, and the fear this instilled into him (T36.13), and the chronic psychological problems, which are vulnerable to further triggering events, and the plaintiff’s need for ongoing psychological treatment.

138. In view of my finding that the plaintiff should receive an award for aggravated damages, and in order to avoid overlapping of damages, I propose to award general compensatory damages at the mid-range that I have indicated. There is no reason to apportion the amount awarded to the period up until the time of the hearing as interest is claimable on that amount: s 18 of the Civil Liability Act 2002. I award the plaintiff general compensatory damages in the amount of $90,000.

Aggravated damages

139. As indicated at paragraph [98] above, I find the plaintiff is entitled to aggravated compensatory general damages for the fear instilled in him not only in the initial minutes when he felt petrified in not knowing what was going to happen to him next, and whilst he was still in the grip of the defendant whilst they were on the floor, surrounded as they were by the defendant’s supporters, but also on account of the defendant’s post-physical verbal assault on him, in the form of an aggressive threat to kill.

140. The fact that the defendant’s threat to kill the plaintiff was fuelled by the defendant’s state of enraged intoxication is not a mitigatory circumstance. The defendant, as the holder of a liquor licence, ought to be taken to have known about the legal constraints on hotel management concerning the responsible service of alcohol, and he should have modified his behaviour accordingly. I find that the defendant was in a position to know that restraint was required on his part, yet his threat to kill the plaintiff, borne as it was from his anger over the refusal of service of alcohol, was unrestrained, and was calculated to instil fear in the plaintiff.

141. The purpose of aggravated damages is to compensate the plaintiff for the harm done to him by a wrongful act that was aggravated by the manner in which the harmful act was carried out: Uren v John Fairfax & Sons Pty Ltd [1996] HCA 40, at [3]; MacDougal v Mitchell [2015] NSWCA 389, at [29]. Aggravated damages are given for conduct which shocks the plaintiff: Gray v Motor Accidents Commission [1998] HCA 70; (1998) 196 CLR 1, at [101]. It is difficult to imagine a more shocking circumstance than an aggressive threat to kill which was delivered in circumstances where severe violent blows had already been a feature of the wrongdoer’s conduct, as is the case here. Aggravated damages are to be awarded in cases where there is increased mental suffering consequent upon the reprehensible conduct of the wrongdoer where greater indignity and outrage in the victim occurs: Whitbread & Anor v Rail Corporation NSW & Ors [2011] NSWCA 130, at [256]. That statement aptly describes the plaintiff’s situation in this case.

142. In my assessment, the defendant assaulted the plaintiff in an egregiously high-handed manner in circumstances of indignity that was intended to cause suffering in the plaintiff, and as such, constituted conduct that could well be set apart from ordinary human fallibility so as to require an award of a significant amount for aggravated damages: State of NSW v Riley [2003] NSWCA 208, at [131].

143. In seeking to resist an award of aggravated damages, the defendant relied upon the decision in Cooper v Mulcahy [2013] NSWCA 160, where damages were reassessed at $4000. In my view that case is entirely distinguishable from the present case for numerous reasons, including that elements of the claim were brought pursuant to the Property (Relationship) Act 1984, and where there were multiple assaults, where some were found to have been statute barred by the operation of s 52 of the Limitation Act 1969, and where the conduct complained of was “demeaning” [138] rather than brutal, as I have found to have occurred in the present case, and where, at [145] it was held that in that case, aggravated damages were not indicated. The plaintiff’s case here is very different to the case cited by the defendant.

144. In those circumstances, I accept the plaintiff’s submission on the quantum of aggravated damages, and I assess and award the plaintiff aggravated general compensatory damages in the amount of $50,000.

Past economic loss

145. The plaintiff claimed an amount of $25,155 by way of past economic loss. This amount comprised the difference between what the plaintiff would have earned had he remained in the employ of the Brunswick Heads Hotel and that which he has earned to the time of trial in self-employment in his new business. That amount is reasonable, and is justified on a comparison of Exhibit “D” and Exhibit “E”.

146. For the plaintiff to receive an award for loss of earnings, as for loss of earning capacity, it must be shown not only that there was such a loss of capacity, but also, that this was productive of a financial loss: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1.

147. I am satisfied that those requirements have been met in this case because the plaintiff was required to change his employment on account of the fact that he had reached a tipping point in dealing with his symptoms and vulnerabilities, as will be more fully explained in my reasons concerning the evaluation of the claimed defence of novus actus interveniens, and the result of that change has been a diminution in earnings.

148. I therefore award the plaintiff damages for past economic loss in the claimed amount of $25,155.

Future economic loss

149. The plaintiff makes a claim for future loss of earning capacity, the quantum for which was submitted to be in the sum of $50,000, which should be taken to include an amount for superannuation.

150. In my review of the evidence, I consider that the plaintiff should receive a buffer amount for damages for future loss of earning capacity notwithstanding that he is now self-employed. I come to this conclusion for a confluence of reasons.

151. It is a notoriously known fact in the community that a significant percentage of small businesses do not continue to remain solvent, and many ultimately fail. That is a vicissitude that must be weighed against the defendant, who caused the plaintiff to leave his otherwise secure employment as a result of the assault.

152. Furthermore, the plaintiff continues to suffer the effects of PTSD and his chosen field of employment in the hotel and hospitality industry is now closed to him. This is for sound medical reasons, as has been explained by Dr Huntsman, as summarised at paragraphs [112] to [114] above.

153. That fact, and the possibility, that the plaintiff’s business might not continue to operate successfully, places the plaintiff, a relatively young man, at a great disadvantage as a competitor for employment on the open labour market, especially where he would need to be and to work amongst people in the context adverted to by Dr Huntsman. This is so especially where before the assault by the defendant, the plaintiff had no such restrictions on his earning capacity.

154. It is recognised that the assessment of the plaintiff’s loss of earning capacity in such circumstances is a necessarily difficult exercise. Nevertheless, the fact that such a loss is difficult to quantify does not mean that the loss should not be assessed monetarily, including by taking a broad approach that incorporates a discount for deferral of loss, in the form of an assessed buffer amount: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] – [27].

155. I consider the plaintiff’s employment restrictions as identified by Dr Hunstman to be significant. The door is effectively closed on the plaintiff pursuing a career in the hospitality and hotel industry, and in positions where he may find himself in the company of significant numbers of males where confrontation might occur. In my view, the matters I have reviewed in respect of this head of damage call for an economic buffer award to cover such circumstances.

156. Whilst the plaintiff has, and is presently experiencing a discrepancy between his present level of earnings from his newly acquired business, and the earnings he would otherwise have continued to derive in the employ of the hotel, the expectation on the balance of probabilities, is that he will eventually achieve, if not exceed those earnings in the not too distant future: Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638.

157. In the meantime, it is appropriate for a buffer amount to be awarded to cover the losses that will continue for an uncertain period of time. In those circumstances, I consider the buffer amount submitted on behalf of the plaintiff to be modest. I accept it as reasonable in the plaintiff’s circumstances. I therefore award the plaintiff damages for future economic loss in the amount of $50,000.

Past loss of employer funded superannuation

158. The plaintiff claims damages for the loss of the value of past employer funded superannuation benefits. That loss is calculated at 9 per cent on $833 per week gross over 45 weeks. I accept that evaluation as reasonable, and I assess damages for past-employer funded superannuation benefits in the amount of $3,373.

Future treatment expenses

159. The plaintiff makes a claim for future treatment expenses in the sum of $17,849.25. The elements that go to make up the claim are based on the recommendation by Dr Huntsman to the effect that the plaintiff needs further cognitive behavioural therapy and trauma-focussed therapy, which he estimates as comprising 10 further sessions at about $200 per session ($2000, three monthly GP consultations for an unspecified period to monitor the plaintiff’s psychological status ($255 per annum or the projected amount of $9308.30) and anti-depressant medication for an unspecified period ($360 per annum or the projected amount of $6540.95). Mr Chown also recommends the plaintiff receive further treatment for his PTSD.

160. The terms of those treatment recommendations do not suggest that the treatment be provided indefinitely over the plaintiff’s remaining life span. However, the chronic nature of the plaintiff’s PTSD, and the importance of the plaintiff managing the symptoms of it appropriately in order to mitigate its effects on his earning capacity, justify those treatment recommendations. I consider that the effects of the defendant’s actions warrant such compensation. However, it is unlikely, the plaintiff will need to be buffered from the projection of such expenditure to the extent of the amount claimed for the rest of his life. Hopefully, he will lessen his dependence on such therapies over time, and will learn to manage his residual symptoms. In those circumstances, I consider it is both appropriate and necessary that the plaintiff receive a lump sum buffer award to cover such expenses in the coming years.

161. The cost of providing for such a treatment regime is not capable of precise estimation. I consider the appropriate buffer sum, appropriately discounted, to be in the amount of $10,000. I therefore award the plaintiff damages for future treatment expenses in the amount of $10,000.

Past out-of-pocket expenses

162. The plaintiff’s paid out-of-pocket expenses for treatment amount to $2552.70 (Exhibit “J”), of which $1284.75 was paid by Medicare, leaving a balance of $1267.70 that was paid by the plaintiff. I am informed that in this case, Medicare does not require a refund of the amount it has paid (T97.44 – T97.45), and therefore this component of the plaintiff’s claim is limited to the balance paid by the plaintiff. I therefore assess the plaintiff’s claim for out-of-pocket expenses in the amount of $1267.70.

Interest

163. The plaintiff is entitled to interest on certain of his past losses comprising past economic loss, past loss of superannuation, and past paid out-of-pocket expenses.

Interest on past economic loss

164. The plaintiff has submitted a calculation of interest on past economic loss based on current Practice Note rates in the sum of $1446. I accept that calculation as being reasonable and allow interest on past economic loss in the amount of $1446.

Interest on past loss of superannuation

165. The plaintiff has submitted a calculation of interest on past loss of superannuation based on current Practice Note rates in the sum of $160. I accept that calculation as being reasonable and allow interest on past economic loss in the amount of $160.

Interest on paid out-of-pocket expenses

166. The plaintiff submitted an interest calculation of $108.43 based on current Practice Note interest rates in respect of the gap payments incurred for past paid out-of-pocket expenses. I accept that calculation and assess interest on past out-of-pocket expenses paid by the plaintiff in the rounded sum of $108.

Summary of assessment of damages and interest

167. My assessment of the plaintiff’s damages is summarised as follows:

(a) General compensatory damages	$90,000
(b) Aggravated damages	$50,000
(c) Past economic loss	$25,155
(d) Future economic loss	$50,000
(e) Past loss of superannuation	$3,373
(f) Future treatment expenses	$10,000
(g) Out-of-pocket expenses	$1,267.70
(h) Interest: past economic loss	$1,446
(i) Interest: past superannuation	$160
(j) Interest: past out-of-pocket expenses	$108
Total	$231,509.70

Issue 4 – Claim of novus actus interveniens

168. During submissions, a defence of novus actus interveniens was raised feintly, in circumstances where it had not been pleaded. In my view, the failure of the defendant to plead such a specific defence is fatal to it being applied in the circumstances of this case. Lest I be wrong in that conclusion, in the paragraphs that follow, I nevertheless set out my reasons why such a defence should be rejected in this case.

169. A defence of novus actus interveniens arises when the chain of causation linking the harm caused by the tortfeasor is broken by an unrelated supervening event: Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522, at [6].

170. The first basis upon which the defendant argued that any liability on his part for damages to be paid the plaintiff should be reduced, or ameliorated on account of a claimed novus actus interveniens, is because it was not just the defendant’s actions alone that caused the plaintiff the harm in question. In that regard, it was suggested that blows delivered by other persons effectively broke the causal chain: T175.28 – T175.46.

171. The second contended basis upon which, the defendant argued there had been a novus actus interveniens was the occurrence of a second work-related incident on 21 February 2016, a year after the subject assault, wherein the plaintiff was involved in a scuffle resulting in him sustaining bruised ribs, and which, after a period of absence from work for some 5 weeks, was later followed by the plaintiff resigning his employment as a hotel bar manager.

172. For the reasons that follow, I have concluded that no proper foundation exists for a defence of novus actus interveniens on either of the contended bases argued by the defendant. The causal chain of damage that followed the defendant’s assault of the plaintiff has not been broken by other supervening events as claimed by the defendant.

Claimed effect of the conduct of others

173. With regard to the first of the defendant’s novus actus interveniens contentions, which was based upon the argued impact of the conduct of others in the defendant’s entourage, I consider that conduct does not relevantly constitute a breach in the causal chain.

174. This is so because that conduct on the part of the members of the defendant’s group, who were allied to his camp, was a natural and probable consequence of the defendant having started a fight with the plaintiff in circumstances where the plaintiff was compelled to offer resistance. In that sense, the defendant caused the group behaviour that followed. Furthermore, the major and significant damaging impact on the plaintiff was from the initial brutal assault in which the plaintiff was punched in the face and the head and neck area, and which caused him to suffer injury to his thoraco-lumbar spine from forced contact with the edge of the bar counter before he went to the floor. In my view, the defendant has failed to discharge the onus of showing that the blows delivered by the man in the blue shirt as seen on the CCTV footage in Exhibit “G.1”, actually connected with the plaintiff, and similarly, the defendant has failed to disentangle any specific causative effects said to have resulted from the involvement of others in the fracas: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164.

175. Significantly, it was the defendant’s verbal threats and aggressive behaviour that attracted his crowd of supporters, together with the initial blows delivered by the defendant, in such frightening circumstances which “petrified” the plaintiff, followed by the defendant’s later threat to kill him, which were the relevant elements that caused the plaintiff to suffer psychological harm.

176. I therefore conclude that notwithstanding the potentially intimidating conduct of others in the defendant’s group, where it appears some of them were trying to keep the plaintiff and the defendant from coming to further blows, the plaintiff has discharged the onus of establishing the causal link between the defendant’s behaviour and the damage he has sustained: Glen v Sullivan [2015] NSWCA 191. Those events would not have occurred “but for” the defendant’s behaviour in the assault in question: Strong v Woolworths Ltd t/as Big W [2012] HCA 5, (2012) 246 CLR 182.

Incident on 21 February 2016

177. The second of the defendant’s contended bases for an argued novus actus interveniens breaking the causal chain was the further incident at the hotel which occurred on 21 February 2016, which was the tipping point for the plaintiff’s decision to leave his work at the hotel, as described in the summary cited at paragraph [127] above. However, those circumstances must be viewed in the proper context.

178. That context is the assessment made by Dr Huntsman, as summarised at paragraphs [112] to [114] above, as well as the assessments made by Mr Chown, as summarised at paragraphs [105] to [108] above.

179. In this regard, the plaintiff was still suffering significant impairment in his functioning as a result of his incident-related PTSD at the time the 21 February 2016 incident occurred. The symptoms of that impairment included anxiety and hyper-vigilance in the workplace, along with sleep disturbance, avoidant behaviour, and vulnerability to situational triggers, with associated low mood. In those circumstances, Dr Huntsman’s unchallenged and inherently reasonable opinion was that the plaintiff was by that time no longer fit to work in a hotel environment because of his assault-related vulnerability, and the potential exposure to aggressive behaviour that might cause him to feel endangered, with the potential for exacerbation or recrudescence of more intense symptoms of PTSD.

180. In those circumstances, I find that the incident of 21 February 2016 operated as a trigger in the manner that was envisaged by Mr Chown and Dr Huntsman. At that time, as a consequence of the defendant’s earlier assault upon him, the plaintiff was in effect already primed for an adverse reaction to an incident of the kind that occurred on 21 February 2016. In that sense, the defendant must accept the plaintiff’s reaction in the form of a tipping point occurring and leading to the decision to abandon his career in the hotel and hospitality industry. That was as a natural and probable consequence of the assault perpetrated by the defendant.

181. In those circumstances, I find that there has been no novus actus interveniens in the sense of breaking the causal chain that existed between the assault on the plaintiff by the defendant on 21 February 2015, and the plaintiff’s decision to leave work in March 2016.

182. For the above reasons, I reject the defendant’s suggestion that the plaintiff’s assessed damages should be reduced on account of a claim of novus actus interveniens.

Disposition

183. The plaintiff has succeeded on all issues against the defendant in the proceedings. He has also established his entitlement to an award of compensatory damages of $231,509.70, which includes a component for aggravated damages, economic related damages, special damages comprising out-of-pocket expenses, and interest.

Costs

184. It follows from these findings that the plaintiff is entitled to have his costs of these proceedings paid by the defendant on the ordinary basis, unless a party is able to show an entitlement to some other order.

Orders

185. I make the following orders:

1. Verdict and judgment for the plaintiff in the sum of $231,509.70, including aggravated damages and interest;

2. The defendant is to pay the plaintiff’s costs of the proceedings on the ordinary basis until 19 September 2016 and on the indemnity basis thereafter;

3. The exhibits may be returned;

4. Liberty to apply on 3 days’ notice if further or other orders are required.

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Amendments

17 March 2017 - Amendment to costs Order 2.

Decision last updated: 17 March 2017