Bilal Kassem v ACN 075092232 Pty Limited

District Court of NSW|2009-03-26|Before: Mr AJ

CITATION: Bilal Kassem v ACN 075092232 Pty Limited (In Liquidation) (Formerly known as "Australian Event Protection Pty Limited") [2009] NSWDC 262

HEARING DATE(S): 23-26 March 2009, 1-3 June 2009 and 1 July 2009

(1) Verdict and judgment for the first defendant against the plaintiff on the action. DECISION: (2) Plaintiff to pay the first defendant's costs of the proceedings in an amount as agreed or assessed. (3) Direct that the exhibits remain with the file to be returned on application to the Registrar after 28 days. (4) Note the order made on 25 March 2009 that the proceedings against the second defendant be dismissed.

CATCHWORDS: TORTS - Intentional torts - Assault and battery - Patron of nightclub punched by security guard outside premises - Very severe head and facial injuries - Licensed premises - Security guard employed by security company engaged by operator of nightclub - Vicarious liability of security company - Whether security guard's harmful conduct carried out in course of or incidental to employment - Whether security guard's acts so closely connected with authorised employment acts as to be mere improper modes of performing them - Whether security guards acts were independent and motivated by personal animosity and vindictiveness - Whether security guard acted in self-defence to enable security company to avoid liability - Whether injured patron engaged in conduct constituting serious criminal offences to prevent any award of damages in his favour - Whether security company could be vicariously criminally liable for conduct of security guard so as to save any award of damages - Extent of application of Civil Liability Act 2002 - Assessment of damages - Common law principles applied to assessment of damages - Dismissal of claim against security guard for failure to serve claim

Civil Liability Act 2002, ss 3B (1)(a), 3C, 50, 51(3), 52, 53 and 54, Pt 2, Pt 6 and Pt 7 Corporations Act 2001 (Cth), s 500 (2) LEGISLATION CITED: Crimes Act 1900, ss 59(1), 61, 93C(1) and 93D(2) Registered Clubs Act 1976, ss 44A(1) and 67A Uniform Civil Procedure Rules 2005, rr 6.24(b) and 12.9(2)

Awada v Linknarf [2002] NSWSC 873 Deatons Pty Ltd v Flew (1949) 79 CLR 370 Kiperman v Highflame Pty Ltd [2007] NSWDC 165 New South Wales v Lepore (2003) 212 CLR 511 CASES CITED: Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204 R v Donovan [1934] 2 KB 498 R v Taylor [1992] 2 All ER 299 Sprod v Public Relations Oriented Security Pty Ltd [2007] NSWCA 319 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 Zorom Enterprises Pty Ltd v Zabow [2007] NSWCA 106; (2007) 71 NSWLR 354

TEXTS CITED: Salmond's Law of Torts (London: Sweet & Maxwell, 9th ed, 1936) at 495

Bilal Kassem - Plaintiff PARTIES: ACN 075092232 Pty Limited (In Liquidation) (formerly known as "Australian Event Protection Pty Limited") - First Defendant Josefa Varo Matako - Second Defendant

Mr AJ Bartley SC and Mr F Tuscano for Plaintiff COUNSEL: Mr PJ Deakin QC, Mr AR Davis and Mr G Dilworth for First Defendant No appearance for Second Defendant

SOLICITORS: Consolidated Lawyers for Plaintiff Walker Hedges & Co for First Defendant

1 After forcibly being removed from a Sydney city nightclub by security staff for alleged unseemly behaviour in the early morning hours, a patron was released and sent on his way. However, he returned and attempted, in a somewhat dramatic and vigorous way, to re-enter the Club but was met with resistance from a number of security guards who endeavoured to restrain him. In the ensuing melee the patron received four punches to his head by one of the guards and lost consciousness; he suffered very severe head and facial injuries. On being transported to Royal Prince Alfred Hospital, emergency surgery to the head was performed that day with further surgery the following day to relieve intracranial pressure. He was discharged from hospital two weeks later. After four months, he was readmitted to hospital for four days and underwent elective surgery to correct certain defects in the skull but the results of the injury are still very much visible.

2 The resultant condition from the injuries was said to be an incapacity to engage in gainful employment due to cognitive impairment and only intermittent part-time work at an unskilled level was performed for a short period. Otherwise, the disabilities from the injury were said to be extensive as affecting memory, concentration, sleep patterns, mood, energy levels, self-esteem and confidence levels; there was a reduced capacity to participate in social, family and domestic activities; and regular occurrences of depression and anxiety symptoms were experienced.

3 The plaintiff, Bilal Kassem, sued Australian Event Protection Pty Limited as the first defendant who provided, managed and controlled at all relevant times the security services at a nightclub known as the "Cave Night Club" (the Club) located in licensed premises at Star City Casino in Pirrama Road, Pyrmont and operated by Rejoleer Pty Limited. The claim against the second defendant, Josefa Varo Mataka, was brought in his capacity as the security guard employed by the first defendant who punched the plaintiff in the subject incident which occurred at about 3am on Monday 24 March 2003. The plaintiff was a member of the Club and regularly attended on a weekly basis, usually on Saturday nights.

4 The action concerning the first defendant pleaded counts of negligence by breaching its duty of care to the plaintiff in failing to take reasonable security measures to protect him against assault while attending the Club, breach of the contract it had with Rejoleer as the operator of the Club to protect the plaintiff as a member entering or seeking to re-enter the premises and vicarious liability for the assault and battery on the plaintiff by the second defendant as its employee. The count against the second defendant was for the assault and battery in punching the plaintiff. By way of defence, the first defendant pleaded any injury, loss or damage was wholly or partly the result of the plaintiff's own negligence in behaving aggressively, refusing directions and placing himself in a position of peril. However, as the matter was argued, the plaintiff's claims in negligence and contract were abandoned and the defence of contributory negligence was not pursued. Thus, the sole count relied upon was the intentional assault.

5 The principal defence by the first defendant was that it was not vicariously liable for the acts and conduct of the second defendant in assaulting the plaintiff because such acts were outside the scope of his employment. It was put that they were independent acts constituting unauthorised and wrongful conduct which, by their viciousness, were acts of "retributive justice" for which the employer should not be held liable: see Deatons Pty Ltd v Flew (1949) 79 CLR 370 at 382; and also New South Wales v Lepore (2003) 212 CLR 511 at [54] and Zorom Enterprises Pty Ltd v Zabow [2007] NSWCA 106, (2007) 71 NSWLR 354 at [27].

6 Reliance was placed by the first defendant on the whole of the Civil Liability Act 2002, and in particular s 54(1), in denying liability. Even if s 3B(1) of the statute made inapplicable its provisions as to civil liability in respect of an intentional act done with intent to cause injury as was the position here, Pt 7 (which included s 54) of the statute was by subpara (ii) of s 3B(1)(a) continued in operation so as to preclude an award of damages to a person where the injury occurred at the time of, or following, conduct of that person which constituted a serious offence within the meaning of s 54(3) as being an offence punishable by imprisonment for six months or more. This was said to be fatal to the plaintiff's claims as in the subject incident he engaged in conduct sufficient, on the balance of the probabilities, to satisfy the requirements of three such criminal offences under the Crimes Act 1900: first, common assault under s 61; second, assault occasioning actual bodily harm under s 59; and, third, affray under s 93C.

7 In his reply, the plaintiff pleaded reliance on s 54(2) of the Civil Liability Act to exclude the effect of the s 54(1) defence. In that respect, it was said the plaintiff's injury for which damages were sought was caused by conduct of the first defendant through the second defendant as its employee constituting criminal offences of assault occasioning actual bodily harm and common assault respectively under ss 59 and 61 of the Crimes Act.

8 In its pleaded defence, the first defendant relied also on ss 52 and 53 of the Civil Liability Act to deny liability as the second defendant during the incident was acting in self-defence. The plaintiff in reply denied the first defendant was entitled to rely on s 52 as such a defence was available only to the second defendant.

9 The first defendant pleaded the s 50 defence under the Civil Liability Act that the plaintiff was under the influence of alcohol during the incident to the extent his capacity to exercise reasonable care and skill was impaired. The plaintiff joined issue on this but in submissions senior counsel for the first defendant did not attend to this defence. The plaintiff's senior counsel simply put that s 50 was unavailable because it was excluded by s 3B(1)(a).

10 The second defendant did not file a defence or any notice of appearance.

12 The second defendant did not appear at the hearing and no pleading was filed on his behalf. The statement of claim in this matter was filed on 24 March 2006 but I was informed that it was not served upon the second defendant because he could not be located and apparently had since returned to his homeland in Fiji. Accordingly, on 25 March 2009 I made an order, for reasons then given, pursuant to r 12.9(2) of the Uniform Civil Procedure Rules 2005, having in mind the provisions of r 6.2(4)(b) as to the invalidity of claims not served within the specified time of filing, that the proceedings against the second defendant be dismissed with no order as to costs. Thus, the case continued against the first defendant only.

13 The hearing in this action commenced on 23 March 2009. During the plaintiff's examination-in-chief on 25 March 2009 counsel advised, it having just then come to their notice, that the first defendant in October 2008 had been placed in voluntary liquidation. Thereupon, on 26 March 2009 the matter was adjourned as required by s 500(2) of the Corporations Act 2001 (Cth) to enable the plaintiff to seek leave from the Supreme Court of New South Wales to proceed with the action or, in the alternative, for a declaration that as a voluntary winding-up leave was not necessary: see Awada v Linknarf [2002] NSWSC 873 per Barrett J. That relief was duly granted and the proceeding resumed in this Court on 1 June 2009. In all, the hearing occupied eight days and counsel provided, very helpfully if I may say so, detailed outlines of submissions which were supplemented orally.

14 In the circumstances, the name and style of the first defendant on all process was amended on 1 June 2009 to "ACN 075092232 Pty Limited (In Liquidation) (formerly known as 'Australian Event Protection Pty Limited')".

15 In addition as senior counsel for the first defendant advised in indicating his instructions to so continue appearing, the first defendant's insurer who had previously given instructions had also gone into liquidation. The case so proceeded.

Plaintiff's background 16 The plaintiff was born in Lebanon on 15 July 1968 and migrated to Australia with his parents and siblings in June 1984. He was educated in Tripoli to the equivalent of Year 10 in high school and on arrival in Australia undertook a full-time six month course in English. He completed the Higher School Certificate at Arthur Phillip High School, Parramatta in 1986 followed by the award of an Associate Diploma in Chemical Technology from Granville TAFE in 1991. In the meantime, however, in 1985 he suffered head and neck injuries in a motor vehicle accident for which compensation of $17,000 was received.

17 Employment of a couple of months as a laboratory technician with the then Metropolitan Water Sewerage and Drainage Board occurred in early 1992 until the plaintiff commenced at the University of Technology Sydney a degree course in Applied Science. Due, as he said to the death of his mother, he deferred that course but never resumed it. Thereafter, employment was intermittent as involving work as a laboratory technician for about four months in 1992 at GM Laboratories Pty Limited at Leichhardt and then for about two years in 1994-1996 as the North Sydney Area Supervisor for Swan Services Pty Limited in the commercial and industrial cleaning industry. He was married in February 1994 and a daughter was born in November 1995 and a son in December 1997. At the end of 1996 he commenced to work part time for his older brother in the family video store in Granville assisting customers with CDs and tapes of movies and music in both English and Arabic. However, that employment was interrupted by another motor vehicle accident on 7 September 1999 when the plaintiff sustained injuries to his neck and shoulders for which a settlement of $40,000 was eventually obtained. He did not return to paid work at the video store and has since been unemployed; he went to the video store from time-to-time to help his brother as a family member but without remuneration. In the longer term, he said he intended to resume a job as a laboratory technician.

18 In 2000 the plaintiff and his wife separated and were divorced in December 2002.

19 It seems that the plaintiff during 1988 got to know about the Cave Night Club at Star City Casino and he began, on becoming a member of the Club, to regularly visit it each week on a Saturday night with friends; he said he gradually got to know the people who ran the Club.

20 The plaintiff said he became aware he attended the Club on the evening of 23 March 2003 at about 11pm or midnight but had no recollection at all of the incident which occurred early the following morning. His first memory was waking up in the intensive care ward of Royal Prince Alfred Hospital, where members of his family were present, but he did recall "a little bit" before the incident when he arrived at the Club with a friend and had a drink of scotch at the bar.

21 Prior to the subject incident in March 2003 after the plaintiff and his wife separated in 2000, he lived alone and did all of his own shopping, cleaning and other household tasks. Although he applied a number of times after the September 1999 motor accident for employment as a laboratory technician he was unsuccessful. At that time, the plaintiff experienced feelings of dizziness, headaches and an admitted psychiatric problem of depression with chronic pain, although by the time of the subject incident he said he was not consulting any medical practitioners as a result of that motor accident. From the first motor accident in 1986 the plaintiff said he had a neck problem. Interestingly the plaintiff said he had been involved since 1986 in as many as five or six motor accidents and on two such occasions in 1987-1988 had been knocked unconscious and suffered consequent headaches for which medication was taken.

22 Otherwise, prior to the incident at the Club, the patient's condition seemed to be unremarkable. It need only be emphasised that since the September 1999 motor accident he had been unemployed, but was looking for work as a laboratory technician, with the extent of work being part time helping in his brother's video store without pay.

23 Beyond recalling attendance at the Club on Sunday evening, 23 March 2003, and having a drink of scotch at the bar, the plaintiff had no memory. Therefore in determining what occurred in this incident it is necessary to review the other evidence, that evidence comprised as a principal part of the case put by each party, film from closed-circuit television cameras positioned inside the foyer and bar area of the Club and most importantly from an outside camera covering the main entrance/exit door of the Club and the adjacent area. However, it is to be noted that the footage obtained was not all that clear and it was necessary for the film to be shown four or five times so as to enable a reasonable understanding of it. In any case the circumstances of the incident were the subject of oral evidence from the Club's duty manager (for the plaintiff) and from the operations manager (for the first defendant) of Lani Richmond Promotions and Events which was engaged to promote and host events at the Club. In addition five witnesses to the incident gave statements to the police as part of the subsequent investigation and having in mind those persons (with one exception, who was not required for cross-examination) could not be located to give evidence. The statements were admitted into evidence in the first defendant's case, it is convenient to consider the video film and each witness in turn.

24 Video film: Footage from three cameras was shown. The first was of activity in the bar area of the Club, called the Velvet Room, from 2.30am to 3.02am. Much of this period was not relevant and showed a crowded bar area with people drinking, conversing and moving around. At about 3.01am the activity increased with what seemed to be a group of people moving rapidly backwards and forwards in what could have been a scuffle; a female was seen getting up from the floor. Identification of those involved and who was doing what was not possible.

25 From the camera in the foyer area footage from 3.02am to 3.05am showed a person struggling in a very agitated and animated state being forcibly restrained by two persons. He broke free and went further inside the Club but then reappeared in the custody of two persons still in an agitated state and struggling and was then taken outside the Club through the main front doorway. The images were clear enough for persons to be identified.

26 The outside camera recorded events from 3.02am to 3.26am. Again, the images were not entirely clear but it was possible to discern the general course of what occurred and identification of the persons concerned was possible for those familiar with them. On emerging from the front doorway under physical force by another behind him with arms under the shoulders and hands around the back of the neck, apparently a hold called a "Full Nelson", the person was "frog marched" to the right of the doorway along the footpath. The two escorts returned and stood outside and in front of the entrance to the Club. The escorted person was seen then to reappear, barechested and without his shirt on, and quickly moved towards the two persons who had escorted him away. A struggle occurred as the person seemed to be trying to get past the two persons. At least two other persons arrived and stood nearby as the struggle continued - it was then about 3.05am. A few seconds later, the person who earlier applied the Full Nelson, a tall and heavily built man, was then seen to punch the left-hand side of the person's head with two quick blows with the right fist and, as he was falling to the ground, a left and then a right hand punch to the head occurred. The person fell to the ground. The assailant was then seen to leave and enter the Club to emerge a couple of minutes later carrying things which he used to do something on the ground near where the man was felled. Other people arrived to tend to the man on the ground as he lay motionless. About 3.20pm ambulance officers were seen to arrive and treated the injured person as he lay on the ground.

27 Ashley Semitecolos: Employed by Rejoleer for about ten years, Mr Semitecolos at the time of the incident was on duty at the Club as its duty manager. On Sunday he said the Club opened at 9pm and stayed open until 6am the following morning. Security at the Club during opening hours was provided by the first defendant, although not acting under the direction of Mr Semitecolos, and on Sundays four security guards were provided. On the night in question, the guards present were Joe Mataka (the second defendant), Waqa Kolivuso, John and a fourth person he could not recall; Mr Mataka was described as "tall and big ... solid". Mr Semitecolos's duties involved liaising with guests and bar staff, generally ensuring everything was in order and office work looking after cash and paperwork. Around 3am on the Monday morning concerned he was in his office.

28 On the television monitor screen in his office at 3.05am, Mr Semitecolos noticed activity at the front entrance to the Club which caused him to go there. He said he first saw a person known to him as "Doug" and then he saw "Bill" (the plaintiff) and another person who was the security guard "Joe" (the second defendant); Bill was shirtless. Mr Semitecolos said he then saw Joe punch Bill twice with his right arm as Bill stood in front of him - present also were Doug, Alofa Melei who was the Club's door host at the time and another unidentified person but dressed as a security guard - Bill then fell to the ground with blood pooling on the ground from his head. Mr Semitecolos telephoned for the attendance of an ambulance as Alofa and another duty manager, Ashween Reddy, administered first aid to the plaintiff using a kit supplied by Mr Semitecolos. Joe was then seen with a bucket and there was water on the ground. A number of guests then exited the Club and left the scene. The ambulance duly arrived, stabilised the plaintiff and transported him from the Club.

29 Mr Semitecolos, although in his office at the time, was shown the video film of events in the foyer area at about 3.03am and identified the plaintiff as the person moving quickly followed by Joe Mataka and Waqa Kolivuso, the two security guards, with Alofa Melei and Doug Blaikie standing nearby.

30 Earlier in the evening, Mr Semitecolos had the opportunity to see the plaintiff who he knew from previous occasions at the Club. He said the plaintiff was generally "a very welcoming individual ... He'd shake your hand. He'd say how are you". However, on the night in question the plaintiff appeared to be "quite rigid ... very rigid body ... He was almost staring, looked very aggressive and very cold". On the other hand, Mr Semitecolos described Mr Mataka's behaviour as a security guard as "professional, calm ... he followed correct security procedure ... a big teddy bear" and was not known to ever use force on guests or to inflict any injury on them. Another witness later described Mr Mataka as a "gentle giant".

31 As to the specific incident outside the Club as recorded by the video camera around 3.05am when the plaintiff returned shirtless, Mr Semitecolos gave this evidence: "Q. What was the first thing that you can recall seeing as far as any movements of Bill is concerned? A. Bill appeared to me to be trying to get past the security guards.

Q. In trying to get past the security guard, what was he actually doing as far as you can recall it? A. He was flailing his arms, trying to jump up, push maybe, around the security guards.

Q. Was he flailing his arms in any particular direction or towards anybody? A. It was towards the security guards. ... Q. Did it appear to you that he was using his arms in an attempt to get around the security guards? A. Yes.

Q. Did you see contact between Bill's arms or hands and the security guards? A. Yes.

Q. Multiple contacts or only a single contact? A. Multiple.

Q. Can you give us an estimate as to how many times his arms or his hands came into contact with the guards? A. Just in those few split seconds, like five, six. ... Q. That he (Bill) was pushing violently against guards, do you agree with that? A. Yes.

Q. Do you agree that he, to your observations, hit the guards on more than one occasion? A. He wasn't throwing punches.

Q. But hit nevertheless? A. If hitting is making contact with your arms - trying to get around, then yes." 32 Douglas George Blaikie: As the Operations Manager for the promotions and events company at the Club on the night concerned, Mr Blaikie was engaged in hosting and coordinating events at the Club with the particular role of collecting fees at the entrance and permitting entry. He estimated about 240 to 250 people were present at the Club at the time on that early Monday morning. He was familiar with the plaintiff as a regular guest, but did not know his name, and at the time concerned he was wearing a red shirt.

33 Mr Blaikie was in his office off the foyer area of the Club and, on hearing a disturbance, opened the office door and saw the man in the red shirt being brought into the foyer "wrestling with guards ... was highly agitated" and was saying "fuck you, you fucking cunt, I'm going to fucking smash you. I'm going to fucking kill you". He said the plaintiff was "swinging his arms around at people ... thrashing his arms wildly around, making guttural noises ... his eyes were very wild and a lot of spittle around his mouth". Mr Blaikie then added as to events in the foyer area: "Q. Do you recall what were the guards doing? A. So I saw the guards bringing him into the foyer area trying to restrain him. There were two guards at a time, as I recall. One guard then had hold of him while he was thrashing around and the other guard then let go and turned around to question the crowd what was going on, to find out why the gentleman was, you know, behaving the way he was.

Q. Was he then moved out into the foyer area; do you recall that or not? A. So they were in the foyer area for quite a while. The gentleman broke free of one of the guards and then started running back into the Velvet Room. The guard who had his back to that gentleman turned around just as that gentleman arrived and then pushed into that guard, almost knocking him to the ground. ... Q. When what? A. When the guard drove the gentleman in the red shirt back into the foyer area they were restraining him and then trying to pull him outside to take him outside of the Club. At that point I saw one of the guards swear and retract his hand away from the gentleman. ... Q. Who was the security guard whose hand you later observed? A. I can't remember his full name ... we used to call him Waqa. ... Q. What was it that you later observed of Waqa's hand? A. He had a mark on his hand that appeared to be a bite mark and we put plaster on it from the first aid kit."

34 As to events which then occurred after the guards took the plaintiff outside the Club, Mr Blaikie gave this evidence: "Q. What was he (the plaintiff) doing that you were able to observe in terms of his physical movements? A. He was kicking, throwing his arms around, screaming.

Q. Then what happened as far as him being removed from inside the Club to a position outside, that you observed? A. Once the guards got him outside the Club they took him past the cordoned off rope areas and at that point they let him go.

Q. Just to assist us, approximately to the best of your recollection, how far from the entrance doors had he been taken before he was let go? Can you recall that? A. Approximately 10 to 15 metres.

Q. Then what happened after he had been let go? A. The guards were standing back from him and he was standing in front of them screaming, clutching at his face and tore off his shirt.

Q. Just take it one step at a time. Firstly, what was he screaming at that point to the best of your recollection? A. To the best of my recollection it was similar to what he was screaming inside the foyer - screaming 'Let me back into the club. Fuck you. Fuck them. I'm going to kill you'.

Q. As far as the movement of his shirt was concerned, what did you actually see him do with his shirt? A. He tore it off his body.

Q. How far away from the closest guard was he at the time that he tore his shirt off, that you observed? A. A metre and a half, two metres.

Q. What did you then see happen? A. At that point, after screaming for a moment and tearing off his shirt he then started running back at the guards and managed to break past the guards and came running back towards the Club doors."

35 On Mr Blaikie's evidence, present at this time outside the front entrance to the Club, apart from himself and the plaintiff was Alofa Melei (off duty promotions and events employee), Joe Mataka (the second defendant security guard) and Albert Siu (a security guard). As the plaintiff ran back towards the guards with arms swinging, Mr Blaikie said he struck multiple blows on Mr Melei who had raised his own arms in front of his body. At that point, Mr Blaikie said he stepped forward and restrained the plaintiff across the neck and chest and, with Mr Melei, put him on the ground and held him there. He explained the reason for that action as being "because I was scared that Alofa was going to be hurt and that the gentleman would get back inside the club". While on the ground, Mr Blaikie said he told the plaintiff "cut it out, just calm down". One of the security guards then told Mr Blaikie to release the man and he did. Thereupon the plaintiff stood up and yelled - "I'm gonna fucking smash you. I'm gonna fucking kill you". With his arms swinging, the plaintiff was seen by Mr Blaikie to strike Albert Siu's head with one of his hands.

36 Directly relevant for present purposes, Mr Blaikie gave this evidence as to what then happened: "Q. All right. Was he moved away from the position where he had been in at the time you released him? A. He stood up and moved - he got closer to the doors of the Club.

Q. From that position, was he then moved further away again, by the guards or not? A. So as he moved forwards towards me and Albert stepped in front, the gentleman for a moment was pushing Albert back towards the doors and Albert then put his arms up and started moving the gentleman backwards. At that point, I believe Joe stepped forward to assist Albert with the gentleman, and I could not see from behind Joe and Albert, they were blocking my view and I could not see the gentleman any more from that point. ... Q. However did you actually see a movement of one of the parts of their bodies, one of the guards? A. I could hear slapping sounds.

Q. All right. Did you see any particular part of one of the guard's bodies move in an unusual way? A. I saw the guard's head move back. I saw Albert's head move back and to the side.

Q. Were you able to make any observation of what may have caused his head to move back? A. One of the gentleman's hands moving through the air.

Q. Were you able to recall seeing any contact between one of the gentleman's hands and the head or were you only able to see the hand moving through the air and the movement of the head backwards? A. I recall seeing and hearing contact with the gentleman's hand against Albert's head."

37 Then, as to the involvement of Mr Mataka with the plaintiff, Mr Blaikie said he could not see any contact between them but "observed the gentleman striking his head against the floor - against the wall and against the ground… Saw him clutching his head and moaning on the ground and blood".

38 Fransisco Corea: A statement dated 2 April 2003 by Mr Corea as to events inside the Club in the early morning hours of 24 March 2003 was without objection, admitted into evidence; he was not required for cross-examination by the plaintiff's counsel. Mr Corea was employed by the company promoting events at the Club and at the time his duties involved controlling entry to the Club according to the dress code and behaviour rules. He said that around 2 or 3am he noticed a commotion at the entrance to the Velvet Room with about four or five people pushing and shoving each other; one of them was wearing a red shirt (Mr Blaikie said the plaintiff was wearing a red shirt). He reported the disturbance to Waqa Kolivuso, a security guard, and noticed him attempt to separate the people. As he did so, someone on his left hand side hit Mr Kolivuso as he turned to the right to grab the red shirted plaintiff - the plaintiff was seen to have smudges of blood on his chin - who was then taken into the foyer area repeatedly saying "Piss off, let me go, I am going to go in there and smash him. The fucking bastards I am going to fucking get them, I am going to fucking kill them." Mr Corea saw Mr Kolivuso take the plaintiff outside saying "calm" and "go outside", and a short time later he saw the red shirted plaintiff struggling with the security guards as Mr Kolivuso held him around the chest and told him to "calm down". He heard the plaintiff continually yelling - "Let go of me, I am going to fucking get in there, don't touch me." Mr Corea then returned inside the Club and a few minutes later went outside again to see Mr Melei with a first aid kit attending to the plaintiff who was laying on the ground with blood near his head. Mr Corea watched until the ambulance arrived.

39 Waqa Kolivuso: On 9 April 2003, Mr Kolivuso made a statement to police concerning the subject incident. At the time he was employed by the first defendant as a security guard at the Club on Friday, Saturday and Sunday nights. On 24 March 2003 at about 3.00 am he said he was with Mr Mataka standing outside the front door the Club but went inside to the bar area when called by one of the promoters, known as "Dougie". He saw Mr Siu trying to remove "Bill" (the plaintiff) out of the Club and went to assist Mr Siu. The plaintiff was apparently swearing a lot when someone behind Mr Kolivuso punched the plaintiff's face causing him to fall to the ground. On helping the plaintiff to his feet, and noticing he had cuts near his eyes which were bleeding, he told him "You have to go outside". In the process, Mr Kolivuso said the plaintiff started to struggle with him and tried to bite his hand as he felt "his teeth on the back of my hand". Mr Mataka and Mr Kolivuso then proceeded to take the plaintiff outside with Mr Mataka holding his hands behind his back and Mr Siu assisting as the plaintiff tried to stay inside the Club. Once outside, Mr Kolivuso saw Mr Siu walk the plaintiff along the roadway, release him and then Mr Siu returned to where Mr Mataka was standing. On being asked by one of the promoters, Lani, to remove from the Club the man who had punched the plaintiff, Mr Kolivuso did so and the person left and did not return.

40 By that stage, Mr Kolivuso next saw the plaintiff laying on the ground outside the Club on the footpath near the front wall of the Club with Mr Mataka and Mr Siu standing beside him. He then saw Mr Melei and Mr Semitecolos attending the plaintiff with a medical kit and, on being asked by Mr Semitecolos to go back inside the Club to oversee activities, he did so. After about five minutes he again went outside and saw the ambulance arrive to attend to the plaintiff.

41 Later in the day after finishing work, Mr Kolivuso saw "a small scratch on the back of my left hand where Bill bit me. I didn't bleed but I could feel it." Interestingly, a week or so later, Mr Kolivuso said to Mr Mataka - "Did you do anything to Bill?"; Mr Mataka replied - "I just try and stop him coming back to the nightclub."

42 Albert Siu: Employed part time by the first defendant as a security guard from Friday to Sunday evenings at the Club, Mr Siu was on duty on 23-24 March 2003. He gave police a statement dated 29 March 2003 as to the events at the Club at that time.

43 Mr Siu said he walked into the bar area and saw Bill (the plaintiff) standing in the middle of a group of men with blood on his face and "everyone was pushing and shoving". Being alone, Mr Siu said he tried unsuccessfully to remove the plaintiff from the scene as he was screaming and, so, he called Mr Kolivuso and Mr Mataka to help him. They found it difficult to control the struggling plaintiff as they tried to take him outside; Mr Mataka eventually held him and took him outside onto the footpath where the plaintiff started to swear and said "I got hit for nothing" - Mr Siu and Mr Mataka outside released the plaintiff but he attempted to return inside the Club by striking and pushing Mr Siu. As Mr Siu said - "We tried to talk to him, to calm him down, but he wouldn't listen to us. About three times he tried to push his way passed me. I kept hold of Bill by putting my arms around his body and holding tight. Joe said 'Let him go,' so I took my arms away and he ran passed me towards the entrance to the club."

44 Mr Siu added in his statement: "10. There were two guys standing at the entrance, a promoter, his name is Alofa (Melei) and the guy who collects the entry fees, Dougie (Blaikie). Alofa and Dougie took hold of Bill and put [him] down on the ground. When I looked down Dougie had Bill in a headlock and was holding him on the ground. Bill tried to struggle for a while and then he stopped. Joe said to Dougie 'Let him go'. A few seconds later Bill got up off the ground and then he tried to get back into the club.

He tried to make his way inside. I think Joe stopped him. Joe tried to hold him back and they had a bit of a wrestle. There was just the two of them. Bill was trying to free himself. I think there might have been something wrong with him, he was off his head or something. I am not sure what happened, maybe Joe pushed him but all of a sudden Bill was on the ground. They were standing near the front wall of the Cave Nightclub. Maybe Bill hit the wall. They were standing very close to the wall and Bill was struggling very hard to get away so maybe he hit the wall but I am not sure. I was standing about three metres away. I was standing between where Joe and Bill were and the entrance to the club.

I can remember quite a few guys who were working standing around, I can remember Dougie was there, but I can't remember the others. I can't remember if Bill hit anyone or if anyone hit Bill. I just know he ended up on the ground. After he was on the ground someone came up to see if he was okay. I saw some blood on the ground right next to him. I had some blood on my shirt from where I was struggling with him....

I went back inside because there was heaps of people trying to assist Bill… I overheard the bar staff talking and one of the girls said that she saw Bill push one of the guy's girlfriends and the girl fell over a table".

45 Alofa Melei: Mr Melei was employed by the operator of the Club as a door host and performed that function up to about two months before the subject incident; however, he was present at the Club on the evening/morning concerned as a guest. He made a statement to police on 31 March 2003. At about 2.30 or 3am while sitting in the lounge area with his girlfriend and friends, he heard a crashing noise and saw that a girl had fallen onto a table a metre away from him. Mr Melei said that "Billy" (the plaintiff who was wearing a red shirt) was "staring towards her… standing front on and mouthing off to her". Then, he saw a man walk up to the plaintiff and say "What the fuck are you doing?" After a short response by the plaintiff, the man then punched him on the chin and he fell to the floor. The plaintiff then got up and sat on a chair.

46 A few seconds later Mr Melei said the plaintiff stood up, yelled "I am going to kill you. I am going to kill everyone" and was making wild gestures with his arms as a number of men told him to "just relax". Mr Siu then arrived and said "Come with me" as he took hold of one of the plaintiff's arms to take him to the foyer area.

47 Relevantly, what then occurred was described as follows by Mr Melei: "18. About ten seconds later I heard screaming and yelling coming from the foyer area. I heard it was Billy yelling out, 'Fuck you, I am going to kill you, you fucking cunts'. I saw two other security guards trying to hold the guy back by holding him by the body. It was Albert and Waqa… Billy was trying to push past and appeared to be trying to get back inside.

…I decided to stand up and help out the security… my concerns that Billy would be attacked by the group (crowd of patrons) from his yelling out 'I am going to kill you'… also concerned for the welfare of the security guards…

…I noticed that Albert, Waqa and Hoe had just got Billy out through the front door. Albert I think was leading in front of the guy, Joe was behind and Waqa was behind Joe. Billy was still yelling and screaming as he'd been led out…

I walked outside as well, I saw Albert holding Billy with his arms locked around Billy. Billy was still yelling and screaming and yelling out, 'Let me go you fucking cunts' and 'I am going to kill everyone'. Joe and I yelled out at different times to Albert, 'Let him go.' I believed that he would just walk away.

Albert let go of Billy. Billy ripped off his own shirt and threw it on the ground.

He slapped a pillar located near the entrance about four or five times and yelling out, 'you fucking bastards'.

I was standing with Dougie, Joe, Albert and Waqa near the front entrance. Billy came back towards the front of the entrance. Albert pushed Billy on the shoulder and said, 'just go home'. Billy took a couple of steps back and said, 'just let me in'. Billy pushed past Albert by the shoulder and walked back towards the entrance.

I grabbed hold of Billy by the shoulders. Joe grabbed him as well by the right arm. Billy tried to rip his arm free by pulling his elbow back. When he was doing that he was leaning backwards, he appeared to loose his footing and fell back about one foot behind, whilst turning to his right. He fell downwards and struck the right hand side of his head onto the cement wall.

I heard his head contact the wall. It was a loud noise…

…He looked up at us with an aggressive look. He stood up and lunged at me… He looked very angry. I grabbed hold of both of Billy's elbows. Joe grabbed him from behind…

…I held onto his legs to stop him from kicking. Joe held his body down by using downwards pressure on his arms. Billy was still moving around. Dougie came over and held his head down… He was yelling out, 'Let me go you fucking cunts'.

Dougie and I said words to the effect of, 'just relax we are not letting you go until you relax'. About twenty seconds later, Billy appeared to have calmed down. We decide to let Billy go by walking back. About five seconds later Billy stood back up. He started going crazy again. He walked towards the door again. Joe was standing in front of the door. I was standing right behind Joe. He tried to push Joe aside by using both hands onto Joe's chest region. Joe put his hands up as Billy began to throw his arms towards Joe's head…

Joe stepped back and threw a punch with one of his hands towards Billy and connected with Billy's right hand side eye area. Billy fell backwards. I could not see how he landed because Joe was in front of me.

I said to Joe, 'That's enough.' I pushed in front of Joe. Joe backed off straight away…"

48 Mr Melei then asked Mr Semitecolos to call an ambulance as he attended to the plaintiff.

49 Nichola Te Kiri: Ms Te Kiri worked at the Club as a bartender and was performing such work at the time of the subject incident. In her statement to police made on 31 March 2003 she said she knew the plaintiff from his regular visits to the Club as a fun loving and friendly person. On the 23-24 March 2003 occasion she was working at the Club. However, on the plaintiff arriving just before midnight she greeted him, as usually was the case, but noticed he seemed "a bit depressed. Usually he is full of life, but he was more subdued than usual". Interestingly, the plaintiff arrived with a male friend who was said by Ms Te Kiri to be wearing a red shirt. That was the only evidence of someone other than the plaintiff being the red shirted person concerned in the video and, indeed, there was no real issue between the parties that it was the plaintiff who wore the red shirt.

50 As it happened, Ms Te Kiri was absent from the bar area on a rest break when the relevant events took place and only became aware of them later. However, as a precursor she recited what happened when the plaintiff earlier ordered some drinks and as she handed him the glasses he scooped out some ice cubes and threw them at her "quite hard...not playful, but like he meant to hit me. I was quite shocked...he scowled at me and walked off...usually he is a lovely guy".

51 Overview of the evidence: In reviewing the evidence it is to be immediately observed that the untested statements from the four persons who could not be located are to be treated with care - the fifth statement was from a person who was available but not required for cross-examination - and the evidence of the two persons who gave oral evidence may be treated with greater confidence. However, overall I found all of the evidence, perhaps remarkably in this complex of events, to be generally consistent in the main aspects of relevance and where, in any event, the video film provided objective certainty in what occurred. Indeed, as to the specific injury to the plaintiff, it was common ground between the parties that Mr Mataka inflicted it by a series of punches to his head in what was, as described by senior counsel for the first defendant, a "criminal act [in] viciously attacking the head of the plaintiff with a number of blows". The photographs of the plaintiff in hospital certainly confirm that description. Of course, and this is where the totality of the events which occurred becomes relevant, the issues for the court concerned whether the first defendant was vicariously liable for the conduct of its employee, Mr Mataka and the availability to it of the defences under Pt 7 of the Civil Liability Act.

52 From my consideration of the evidence I make the following findings as credibly flowing from it:

(1) The plaintiff generally was a very welcoming person to others and who was fun loving and friendly.

(2) The plaintiff visited the Club as a member on a regular basis each Saturday evening into the early hours of Sunday and, in doing so, became known to club and other staff (including security guards) as "Bill".

(3) The visit to the Club on the present occasion by the plaintiff on a Sunday evening/Monday morning was contrary to his usual practice of attending on Saturday evening/Sunday morning.

(4) At this time he attended with a male friend and the plaintiff was wearing a red shirt.

(5) For some unknown reason, the plaintiff was not his usual self on this occasion and seemed somewhat depressed with an aggressive, rigid and cold appearance.

(6) Relatively early during the visit in the bar the plaintiff apparently without cause threw some ice cubes at the bartender Ms Te Kiri, scowled at her and then walked away.

(7) Just before 3am in the Velvet Room of the Club it seemed that the plaintiff was involved in some way when a female guest fell onto or between tables.

(8) A friend of that female then punched the plaintiff in the face causing him to fall to the floor; he then sat on a chair with a bleeding cut near an eye.

(9) A few seconds later the plaintiff became agitated, stood up and yelled words to the effect - "I am going to kill you. I am going to kill everyone"; at the same time he was wildly gesturing with his arms as a group of men formed with people pushing and shoving.

(10) Mr Siu attended and tried to remove the plaintiff from the scene into the foyer area but with his screaming and physical actions could not do so; Mr Kolivuso and Mr Mataka arrived to assist Mr Siu to take the plaintiff outside but even they found it difficult to do so.

(11) In the foyer area, outside the Velvet Room, the plaintiff was still resisting being removed and was yelling out - "Fuck you, I am going to kill you, you fucking cunts"; Mr Melei as a visitor to the Club, previously a door host employed by the Club, expressed concern for the plaintiff from other patrons because of his language and for the welfare of the security guards in handling him.

(12) In the course of this, Mr Kolivuso's left hand was bitten by the plaintiff.

(13) Eventually, Mr Mataka was able to control the plaintiff by holding him with a "Full Nelson" and, with Mr Siu and Mr Kolivuso following, removed the plaintiff from the Club by forcibly taking him outside through the front door as he kicked, screamed and threw his arms around.

(14) Mr Mataka was an employee of the first defendant and in seeking to remove the plaintiff from the Club did so in the course and for the purposes of that employment.

(15) Outside the Club on the footpath about 10 to 15 metres to the right-hand side of the entrance, the security guards released the plaintiff.

(16) Mr Kolivuso then re-entered the Club and, without further incident, removed the man who had earlier punched the plaintiff.

(17) In the meantime, outside on the footpath the persons present were Mr Blaikie, Mr Melei, Mr Mataka and Mr Siu. The plaintiff then returned towards the Club entrance with his arms swinging and as he did so tore off his shirt to confront the guards by saying - "Let me back into the Club. Fuck you. Fuck them. I'm going to kill you".

(18) In this process, the plaintiff struck Mr Melei with multiple blows whereupon Mr Blaikie and Mr Melei, and by then possibly Mr Kolivuso, tackled the plaintiff to the ground and held him down; Mr Blaikie was concerned the plaintiff would get back inside the Club and that Mr Melei would be injured. On Mr Mataka's suggestion the plaintiff was let go as he appeared to then calm down.

(19) Then the plaintiff stood up and said - "I'm gonna fucking smash you. I'm gonna fucking kill you"; with his arms swinging, the plaintiff struck Mr Siu's head with his hand and inflicted multiple blows to the others present as he tried to return inside the Club.

(20) Mr Siu grabbed the plaintiff's upper body and started to push him backwards as Mr Mataka seemed to wrestle the plaintiff who was trying to break free.

(21) The plaintiff then pushed Mr Mataka in the chest whereupon Mr Mataka stood back and threw two right hand punches to the plaintiff's head, paused as the plaintiff began to fall, and then quick right and left punches to the head felling the plaintiff to the ground.

(22) The motivation for Mr Mataka's actions was to stop the plaintiff returning to the Club.

(23) Mr Mataka left and went inside the Club but shortly returned with a bucket of water and cloths to clean the footpath where the incident occurred. Mr Melei, Mr Semitecolos and Mr Blaikie attended to the plaintiff until the ambulance arrived to transport the injured plaintiff to Royal Prince Alfred Hospital.

53 Although not contentious here, it is appropriate for completeness to indicate the authority of the Club, through its contracted security provider (the first defendant) using an employee (Mr Mataka) and the other security guards, to remove the plaintiff from the premises. The Registered Clubs Act 1976 in s 44A(1) makes it an offence for the secretary of a registered club to permit any "indecent, violent or quarrelsome conduct on the Club premises". In s 67A of the statute the removal of a person from the premises of a registered club is dealt with, in terms, under sub-s (1)(a) of a person "who is then...violent, quarrelsome or disorderly" and under sub-s (1)(c) of a person "whose presence on the premises renders the Club or the secretary of the Club liable to a penalty under this Act". In those circumstances, pursuant to s 67A(1), the secretary or employee of a club "may refuse to admit to the registered club and may turn out, or cause to be turned out, of the premises of the Club any person" so behaving.

54 Here, I am satisfied from the facts as found that the plaintiff at all relevant times on 24 March 2003 engaged on the premises of the Club in violent or quarrelsome conduct so that the Club in permitting him to stay on the premises would have rendered itself liable to a penalty under s 44A(1). The Club was therefore authorised. in the language of s 67A(1) to "refuse to admit...turn out, or cause to be turned out, of the premises" the plaintiff who was so engaging in violent or quarrelsome conduct and, it may be added, in disorderly conduct. The Club did and I think it was proper for it to have done so.

55 Section 67A(3) requires for the purpose of a person being refused admission or "turned out" (that is, removed) from a club to be subject to "such reasonable force as may be necessary". In this case, the degree of force so used by the security guards, particularly that of Mr Mataka in seeking to prevent the re-admission of the plaintiff to the Club, very much goes to the central issue of vicarious liability and the statutory defences. I will deal with that aspect later.

56 Finally on the authority issue, it should be mentioned that under s 67A(4) of the Registered Clubs Act the plaintiff had a duty on being asked to leave the premises to do so on pain of a monetary penalty for not complying.

57 The ambulance attended the scene at 3.17am on 24 March 2003, stabilised the plaintiff and arrived at Royal Prince Alfred Hospital at 3.32am. The ambulance report noted the patient had lost consciousness and on examination the Glasgow Coma Score was only 3 but which rose to 10 about two minutes later. Swelling and lacerations to the face with movement of all limbs were recorded and the report stated the patient "smells of [alcohol], patient indicates [alcohol] & 1 x ecstasy this [morning]".

58 On admission to hospital a diagnosis of closed head injury secondary to assault was made and the plaintiff was referred to a neurosurgeon, Dr Michael Besser, who that day performed urgent surgery of a craniotomy but, due to persisting intracranial pressure, further surgery was required the next day. It seems the plaintiff remained in the intensive care unit until 30 March 2003 until eventual discharge on 7 April 2003.

59 Dr Besser kept the plaintiff under review from time to time and on 24 July 2003 performed surgery to re-insert the skull bone flap. In a report dated 11 May 2005, Dr Besser said he had arranged for the plaintiff to be assessed by Dr JDG Watson, a consultant neurologist, on 3 May 2005 and those investigations were underway. In the meantime, Dr Besser gave a guarded prognosis as the plaintiff continued to be disabled with headaches, dizziness and a degree of depression; cognitive disturbances were manifested by memory loss.

60 Dr Watson first saw the plaintiff on 3 May 2005 and reviewed him on 28 June and 16 August 2005. In treating the plaintiff, Dr Watson had access to the neuropsychological assessment by Ms Zoe Thayer made on 29 June 2005. In his report of 11 October 2005, Dr Watson diagnosed traumatic brain injury with subsequent cognitive dysfunction and ongoing headache from the subject incident; however, he had a concern about the overall genuineness of the cognitive complaints because more accurate answers to a number of the questions were expected even with significant brain damage. Even so, he considered that as at May 2005 the plaintiff was unfit for work in the open labour market because of the cognitive difficulties and it was most unlikely he would be fit for the pre-injury employment. Dr Watson, with the period of two years since the initial injury, thought there would be very little further improvement in the plaintiff's cognition but better control of his depressed mood and specialised rehabilitation would assist. For that reason, Dr Watson referred the plaintiff to Dr Kathy McCarthy, a consultant in rehabilitation medicine, at the Westmead Hospital Brain Injury Clinic.

61 Ms Thayer assessed the plaintiff on 28 June 2005 in a session which lasted for four hours and included cognitive and psychometric testing. Ms Thayer in her report gave the following opinion: "...He currently reports experiencing problems with concentration, memory, daily headaches, increased irritability, fatigue and depression. He has experienced some depression in the past associated with the consequences of a car accident and also at the time of the break up of his marriage.

The present Neuropsychological assessment yielded an estimate of pre-morbid intellectual abilities in the average range. His performance on many of the current measures of cognitive function was below this expected level. Weaknesses were evident on tasks requiring recall of visual information from a single presentation on tasks tapping sustained attention and working memory, tests of verbal memory, tests of flexible thinking and on tests of psychomotor speed. These findings are consistent with the sites of the reported brain injuries and suggest a degree of bitemporal and frontal lobe dysfunction.

There is also evidence that Mr Kassem is suffering from a significant mood disorder. The development of the depression may have contributed to his perception of worsening memory function as reported in a letter from Dr Besser. This undoubtedly has some effect on his cognitive abilities but this alone cannot account for the extent of the difficulties revealed on testing."

62 The plaintiff was initially reviewed by Dr McCarthy on 7 January 2006 who found he had clearly suffered "a very severe traumatic brain injury". She considered from the tests conducted by Ms Thayer that there was no evidence to suggest malingering by intentional poor performance and that premorbid intellectual abilities in the average range was now below that level. Like Dr Watson, Dr McCarthy considered the period of two years after the injury represented the plaintiff's condition as being of significant permanent cognitive impairment, including a significant mood disorder of depression, reduced sleep and early morning wakening. As to fitness for work, Dr McCarthy thought the plaintiff could manage part time or casual work like he was doing in the music video shop for two to three hours a day over several days a week; she placed his impairment from the traumatic brain injury at 40 per cent. In the result, Dr McCarthy considered the plaintiff would need psychological therapy of about 10 sessions a year for three years at a cost of $185 per session to manage his depression and then to address adjustment to a life-long disability and to manage his anger and irritability.

63 Dr Watson then reviewed the plaintiff on 28 February 2006, 2 August 2006 and 28 March 2007. Dr Watson estimated the plaintiff's depression in the mild to moderate category as being impairment of 20 per cent, cognitive disturbance was put at 15 per cent and impairment from pain at 5 per cent - overall the estimate of whole person impairment was in the range of 24 to 35 per cent.

64 On 3 June 2008, Dr McCarthy reviewed the plaintiff and reported, in effect, a continuation of the plaintiff's earlier complaints but with a focus by him on his physical appearance which prompted discussion of referral to a plastic surgeon but this has not occurred.

65 For the plaintiff himself, on discharge from hospital on 7 April 2003 he went to live with his former wife, at her request, for four months so she could care for and attend to his needs. For the first time he then saw from photographs taken by her the misshapen appearance of his head on the left hand side - he said he "start crying...half my head looked like it's gone and I'm not the same". At this time a bone from the skull had been removed so that he had to wear a protective helmet until the bone flap was replaced during the operation on 24 July 2003. After four days in hospital he returned to his former wife for one week. During that period she attended to his personal care, hygiene and feeding as he was confined to bed rest dealing with the head pain; a lack of concentration and understanding restricted his activities and his two children were scared to go near him because he did not look the same as they knew him. In early-August 2003 the plaintiff moved to live with his father and then his sister for about three or four months because he still needed care and assistance; he returned to live alone at his own home at the end of 2003.

66 A sense of embarrassment was felt by the plaintiff as to the appearance of his head and he sensed people stared at him. On returning to help out in his brother's video store in 2004 for a couple of months, the plaintiff was embarrassed in dealing with customers.

67 However, in April 2006 the plaintiff went back to Lebanon on a holiday and met a lady; they married in Lebanon on 2 June 2006 and now have a baby daughter.

68 In terms of employment, the plaintiff in the longer term had the ambition to resume laboratory technician's work. He applied for such a position in 2006 with Austech Sydney Laboratories but was unsuccessful; he applied also for jobs in customer service in the banking industry and as an area manager in the cleaning industry but, again, was unsuccessful. In the meantime he was in receipt of a disability pension. During 2008/2009 he said he applied for a variety of jobs in different fields and actually obtained work - security guard on a wharf for one day; labouring work on a building site for two days; and tree lopping for one week - he said he could not continue those jobs due to head pain. In August/September 2008 he completed a two week course in security work, funded by the government as part of the requirements for a continued disability pension, but no work was forthcoming. He continues to be unemployed.

69 At the present time, the plaintiff receives treatment from his general practitioner and from Dr McCarthy; he is on the waiting list for treatment at a pain management clinic.

70 Apart from the treating medical practitioners already referred to, the plaintiff was examined by a number of specialists for medico-legal purposes.

71 Dr Selwyn Smith: On 31 August 2005 the plaintiff was examined by Dr Smith, a psychiatrist, who accepted from the history given his exposure to a significant assault on 24 March 2003 with the consequence of "a complicated psychiatric picture…evidence of a post-concussional disorder associated with depression and anxiety". Dr Smith was satisfied the plaintiff had difficulties with focusing and concentrating and had memory and cognitive impairments, easy fatigability, disrupted sleep patterns, ongoing headache, irritability, anxiety and depression. In the result, there had been a marked personality change with apprehension of further assaults, lowered self-esteem and self-confidence and a feeling of being inadequate.

72 Dr Smith, like Dr McCarthy, saw the need for the plaintiff to have further psychological assistance and assistance to reintegrate him into the work setting. The prognosis was guarded.

73 Dr Mahmoud Abu-Arab: A clinical psychologist, Dr Abu-Arab provided a psychological assessment of the plaintiff in a report dated 26 February 2007. He diagnosed a chronic adjustment disorder with mixed anxiety and depressed mood; this was, as Dr Abu-Arab said, "obviously in addition to the extensive brain damage, which resulted in significant cognitive dysfunction, poor insight and personality changes".

74 Dr Abu-Arab considered further psychological treatment would be beneficial over the next two years, at $186 per session. Even so he said the plaintiff had reached maximum medical improvement and with no expectation of further improvement. The plaintiff's pain, depression and anxiety were said to be chronic and long-lasting so that a pain management programme and cognitive behavioural treatment were indicated. As to fitness for work, Dr Abu-Arab considered the plaintiff was not fit for the pre-injury jobs as a laboratory technician, shop assistant or cleaning supervisor but that he should be able to work part-time for six to eight hours per week supervised directly by another person, preferably a family member.

75 Dr J M Matheson: A consultant neurosurgeon, Dr Matheson, examined the plaintiff on 22 August 2006 and reviewed him on 26 August 2008. After reciting the details of the incident, clinical history and findings on examination, Dr Matheson in his report found the plaintiff had "recovered well from this life-threatening injury with little evidence of disability at this stage. He has retreated into a sickness role." Reference was made by Dr Matheson to the notes of Dr Besser, the assessment by Ms Thayer and the views of Dr Smith, but Dr Matheson, it appeared, largely discounted those opinions on the basis that they were either vague or confusing. Given the plaintiff had suffered a significant skull injury, with some complications, he thought "all of that has recovered…one would not expect much in the way of residual disability…a bit of recient memory loss…nothing here that would stop him resuming work as a lab technician…prognosis is good…minimal brain impairment and a cosmetic disability…the treatment he requires is simply vocational."

76 In his second report, Dr Matheson confirmed his earlier views, although he did accept the plaintiff could have some minor memory problems with an expectation the headaches would have resolved. Relevantly, Dr Matheson had the view that the plaintiff had little motivation to resume work, even though he did have a significant head injury with some possible brain damage, but where he was employable.

77 Dr Peter Snowdon: Dr Snowdon psychiatrically examined the plaintiff on 21 August 2006 and 8 August 2008 - both reports were most detailed and comprehensive in terms of the subject incident, work-related issues, treatment received, current symptoms, personal history, mental state examination and attitude. In the first report, Dr Snowdon considered the psychological symptoms were not severe enough to warrant a diagnosis of anxiety or depression but rather the only potential diagnosis was that of an adjustment disorder. However, he accepted the predominant symptom of headaches as being most clearly associated with the subject incident and considered overall that the plaintiff's headache, irritability and concentration difficulty would be long-term. As to employment, Dr Snowdon excluded jobs requiring driving motor vehicles because of the concentration problem but otherwise placed no limitation of jobs within the plaintiff's education and experience.

78 Despite the comments made, Dr Snowdon expressed the view that the plaintiff "has developed a significant degree of depression at times" and would benefit, like Dr McCarthy and Dr Smith suggested, from psychological counselling at the brain injury unit at Westmead Hospital - he estimated a cost of $175 per hourly session and $30 per month for medication.

79 Dr Snowdon in his second report of 11 August 2008 largely confirmed the earlier views but emphasised the most prominent issue being dealt with by the plaintiff was the chronic headache but which following a successful pain management programme would have to be reassessed. Capacity for employment was unchanged. Again Dr Snowdon expressed "some concerns regarding whether Mr Kassem's condition, including headaches and inability to work, are as severe as he states."

80 I was informed by the plaintiff's counsel, without any issue being taken by the first defendant's counsel, that the plaintiff was assessed by a neuropsychologist, Mr Anthony Cole, in August 2006 but his report was never served or tendered in these proceedings.

Vicarious liability of the first defendant as employer

81 It was agreed that Mr Mataka, the security guard concerned who inflicted the injuries on the plaintiff, was employed by the first defendant. In determining the liability in tort of the first defendant for what thereby befell the plaintiff, the action against Mr Mataka as the second defendant being dismissed for inability to serve process on him, its vicarious liability for the conduct of Mr Mataka outside the front entrance to the Club was relied upon as being committed in the course of employment. However, as counsel for the first defendant submitted in denying vicarious liability: "…may reasonably infer that Mr Mataka's duties extended to preventing the plaintiff from re-entering the premises and that the [first] Defendant as his employer could be vicariously liable for any injuries sustained by the plaintiff as a result of the use of some force in the course of performing such duties. Nevertheless, we do submit that the viciousness of this particular assault took him outside the scope of his employment. His actions went beyond the mere unauthorised mode of performing his work. It was an unauthorised and wrongful independent act…for which his employer should not be held liable…"

82 The principle was succinctly stated by Latham CJ in Deatons v Flew (at 378) thus: "An employer is liable for the act of his servant only if the act is shown to come within the scope of the servant's authority either as being an act which he was employed actually to perform or as being an act which was incidental to his employment..."

83 In the present case, it is plain from the evidence and as I have found, that Mr Mataka assaulted the plaintiff by four vicious blows to the head causing severe injuries. He did so just outside the front entrance to the Club in the course of resisting the attempt by the plaintiff to re-enter the Club after being removed (or "turned out" to use the language of the Registered Clubs Act). That Mr Mataka was entitled to use some force in doing so was not and could not be in dispute. For instance, s 67A(3) of the Registered Clubs Act expressly authorises in turning out of premises the use of "such reasonable force as may be necessary". The issue here turned on the nature and extent of the force used by Mr Mataka. It is that fine line of degree, in the circumstances as they occur, whether the first defendant thereby incurred vicariously a liability to the plaintiff for his injury, loss and damage. It may be accepted, in my view, that Mr Mataka was not employed by the first defendant to commit the criminal act of assault, but, in the circumstances was it an act incidental to his employment?

84 Various cases in recent times have attended to situations where patrons or visitors to clubs, hotels and like places have been assaulted by security guards and the question of the liability of the employer has arisen for such conduct. In Sprod v Public Relations Oriented Security Pty Ltd [2007] NSWCA 319, Ipp JA with whom Tobias JA and Hislop JA agreed, adopted the following statement of principle in these cases from what Basten JA, with whom McColl JA and Campbell JA agreed, said in Zorom Enterprises (at [21]): "The underlying principle is not in doubt: an employer will be liable for the act of its employee 'only if the act is shown to come within the scope of the servant's authority either as being an act which he was employed actually to perform or as being an act which was incidental to his employment': Deatons Pty Ltd v Flew [1949] HCA 60; (1949) 79 CLR 370 at 378 (Latham CJ). However, the precise application of that principle, so stated, can give rise to difficulties."

85 The instance case before me is yet another example of difficulty in applying the principle to the facts.

86 For completeness, reference on this aspect should be made to Salmond's Law of Torts (London: Sweet & Maxwell, 9th Ed, 1936) at 495, cited with approval in Deatons v Flew (at 384); Canadian Pacific Railway Co v Lockhart [1942] AC 591 at 599; Sprod (at [44]); and Zorom (at [24]) where the learned author said: "...but a master, as opposed to the employer of an independent contractor is liable even for acts which he has not authorised provided they are so connected with acts that he has authorised that they may be regarded as modes - although improper modes - of doing them. In other words, a master is responsible not merely for what he authorises his servant to do, but also for the way in which he does it. On the other hand, if the unauthorised and wrongful act of the servant is not so connected with the authorised act as to be a mode of doing it, but is an independent act, the master is not responsible: for in such a case the servant is not acting in the course of his employment, but has gone outside of it."

87 It was made plain in Deatons v Flew (at 385 per Williams J and at 388 per Webb J) that the civil liability of an employer extends to the improper mode of exercising an authority by conduct beyond the scope of the authority even if a crime was committed in doing so. However, it is to be cautioned, as Gleeson CJ warned in referring to the formulation of the test in Salmond's Law of Torts in Lepore (at 539, [51]) against pitching the level of generality at which it is proper to describe the nature of an employee's duties so high as to pre-empt the issue. In Sprod (at [46]) Ipp JA explained this by reference to the remarks of Gleeson CJ in Lepore (at 540, [54]) as follows: "Where acts of physical violence are concerned, the nature and seriousness of the criminal act may be relevant to a judgment as to whether it is to be regarded as a personal, independent act of the perpetrator, or whether it is within the scope of employment. A security guard at business premises who removes a person with unnecessary force may be acting in the course of employment. On the other hand...extreme and unnecessary violence, perhaps combined with other factors, such as personal animosity towards the victim, might lead to a conclusion that what is involved is an act of pure personal vindictiveness."

88 I think one must be careful in applying the factual circumstances of one case to decide the outcome of another case as each situation has its own peculiar features. However, I have to say I found their Honours' reasoning in Sprod and Zorom, with respect, instructive in terms of the reasoning used in applying the proper principle. Sprod concerned an assault by security guards of a very drunk and abusive visitor to a pizza shop who slapped a female patron and was removed by the guards to a nearby lane where, as one of the guards said, "he won't be causing any trouble tonight, he just got his head kicked in". In Zorom, a patron of a hotel was assaulted by security guards outside the premises after being evicted from the premises and was assaulted by a guard with a single blow of considerable force in the vicinity of the right eye. In both cases, the Court of Appeal found the employer to be vicariously liable for the unnecessary and excessive conduct of the guards as being incidental to the employment.

89 In Sprod, Ipp JA reasoned the position (at [72]-[84]) and during the course thereof relevantly remarked (at [79]): "In my opinion, the dominant cause of the assault was a desire on the part of the guards to do their duty by ensuring that the appellant would not again make a pest of himself at the shop, would not return to the shop, and would not again molest the customers..."

90 89 In Zorom, Basten JA applied the relevant principles to the facts (at [32]-[41]) and concluded (at [41]): "...Whatever the actual conduct of the individual's concerned, there appears to have been a significant level of frustration being exhibited by the security guards as a group in their attempts to move the men away from the hotel. It is apparent that those attempts had involved the application of some physical force... and a level of verbal abuse which degenerated into the unjustifiable assaults. Nevertheless, the language used demonstrates that the assailant was seeking to disperse the group and have them move on, albeit in an entirely unacceptable fashion. The fact that he struck not merely the plaintiff, but three persons in a short period, together with the words used, demonstrates that he perceived himself as acting in the interests of his employer and in the performance of his employment duties..."

91 Here, from the factual conclusions earlier stated, I find that the plaintiff in the Velvet Room inside the Club was engaged in disorderly conduct, albeit he may have been provoked by another patron punching him after the apparent table incident with a female patron. He became aggressive, violent and abusive in language with threats to "kill everyone" so that grounds arose for him to be removed from the premises and he was under a duty to quit the premises: see s 67A(1), (3) and (4) of the Registered Clubs Act. The security guards had difficulty in removing the plaintiff, but persisted as he struggled with them in the foyer area and repeated the threats of harm. Mr Mataka was finally able to hold the plaintiff and removed him outside where he was released about 10 to 15 metres from the entrance. At that point, Mr Mataka returned near to the front doors and Mr Kolivuso turned out from the Club without incident the other person who had earlier punched the plaintiff. As far as the security guards were concerned, I accept that they may reasonably have then considered the episode with the plaintiff had ended. However, he returned, shirtless and in an aggressive, violent way in an attempt to re-enter the Club and, in doing so, struck multiple blows on Mr Melei. Even then, as he appeared to calm down, he was released. But, the plaintiff then resumed his violent attempt to re-enter the Club, including by continuing the threat to "fucking kill you", and Mr Blaikie had a concern the plaintiff would indeed re-enter the Club with injury to others in the process.

92 The scene outside the entrance deteriorated as the plaintiff struck the head of Mr Siu and inflicted multiple blows on the other persons present. On pushing Mr Mataka in the chest, the plaintiff then received the punches from Mr Mataka which felled and injured him. As Mr Kolivuso later reported Mr Mataka as saying, "I just try and stop him coming back to the nightclub."

93 I am satisfied in the circumstances that the security guards, including Mr Mataka, were intent, and properly so, in ensuring the plaintiff in his then state did not re-enter the Club but were frustrated by his persistent attempts to do so and, it is to be emphasised, in a particularly violent, aggressive and threatening way. However, the punches struck by Mr Mataka were, in my view, certainly unwarranted and excessive; they were beyond the scope of his duty as a security guard - the plaintiff had been subdued earlier without resort to such measures and where there was severe provocation from the plaintiff. Even so, there was no suggestion, although given that the security guards did not give evidence, that Mr Semitecolos or Mr Blaikie was aware of any personal animosity between the plaintiff and Mr Mataka or the other security guards. I think frustration felt by Mr Mataka as he endeavoured to exclude the plaintiff from the Club, which was part of his duties, was the trigger for his behaviour as he tried to quell the plaintiff.

94 In the result, I find that the assault of the plaintiff by Mr Mataka was not some personal or independent act on his part but rather was incidental to his employment in that he had the task of effectively removing the disorderly plaintiff and denying him admission to the Club. Although the manner of doing so was excessive and quite improper, it was nonetheless sufficiently connected with the duty he was authorised to perform in the course of his employment. It follows, in my view, that the first defendant is vicariously liable for Mr Mataka's acts against the plaintiff.

95 Even if liability be established in the first defendant vicariously for the conduct of Mr Mataka, the submission was put for it that the provisions of the Civil Liability Act precluded a finding of liability and/or any award of damages in favour of the plaintiff.

96 Application of the statute: Senior counsel for the first defendant put the submission that the whole of the statute applied to this case, a submission which mainly affected damages rather than liability. However, in light of recent authority, I understood this to be a formal submission only as the primary thrust of the first defendant's case was that Pt 7 of the statute relating to self-defence and recovery by criminals was applicable. Indeed, senior counsel for the plaintiff acknowledged as much.

97 96 Section 51(3) of the Civil Liability Act provides that Pt 7 thereof does not apply to civil liability that is excluded from its operation by s 3B. Section 3B(1) makes the statutory provisions inapplicable in respect of liability and awards of damages except, in presently relevant respects as to an intentional tort, Pt 7 as to self-defence and recovery by criminals: see s 3B(1)(a)(ii). The argument of the first defendant was that the exclusion of the whole statute only operated where the intentional act was done by the person who had the intent to cause injury, here Mr Mataka, and not by the first defendant who could only be liable, if at all, vicariously. That approach, however, it seems to me, runs contrary to the terms of s 3C of the statute which provides that any exclusionary or limiting provision as to a person for a tort (Mr Mataka) also operates to exclude or limit the vicarious liability of another person, the first defendant, for that tort. Thus, the statute makes no distinction between primary or direct liability and vicarious liability.

98 97 This issue was considered by the Court of Appeal in Zorom (at [6]-[14]) in which it was held that s 3B(1) of the Civil Liability Act suggested no different approach should be taken to the civil liability for an intentional tort of an employee compared with that vicariously of the employer: see also Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204 at [79]-[82] per Ipp JA, with whom Allsop P and Beazley JA agreed.

99 In this case, therefore, s 3B(1)(a)(ii) results in Pt 7 (ss 51-54H) of the Civil Liability Act, and no other provisions being applicable to the plaintiff's claims.

100 Section 50 - No recovery where person intoxicated: This section was pleaded by the first defendant as a defence. However, it was not pursued in submissions. I think the omission to do so was correct because the section is not in Pt 7 but in Pt 6 of the statute so that it is excluded by s 3B(1)(a).

101 Section 54 - Criminals not to be awarded damages: The defence allowed by s 54(1) is that "a court is not to award damages in respect of liability" if: "(a) the death of, or the injury or damage to, the person that is the subject of the proceedings occurred at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence, and

(b) that conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage." 102 The first defendant relied on s 54(1) as a complete defence in the circumstances here to an award of damages, notwithstanding vicarious liability be found against it for Mr Mataka's acts, on the basis that the plaintiff engaged in conduct constituting three serious offences under the Crimes Act being common assault under s 61, assault occasioning actual bodily harm under s 59 and affray under s 93C. Each of those offences was a "serious offence" as being punishable by imprisonment for six months or more as defined by s 54(3). Such offences were said to have contributed materially to the plaintiff's injury. In avoiding the force of s 54(1), senior counsel for the plaintiff said there was no evidence that the plaintiff was committing any offence at the time of the assault by Mr Mataka.

103 In further answer to this s 54(1) defence, the plaintiff relied on s 54(2) that it did not apply, as the sub section said, "to an award of damages against a defendant if the conduct of the defendant that caused the...injury or damage concerned, constitutes an offence (whether or not a serious offence)". The submission was that the first defendant through its employee Mr Mataka had committed at the relevant time the offences of common assault and assault occasioning actual bodily harm so that the effect, if any, of s 54(1) was negated. However, senior counsel for the first defendant denied the plaintiff could rely on the ameliorating provision of s 54(2) because, in its terms, it was restricted to "the conduct of the defendant that cause the...injury" as constituting an offence but here there was no conduct of the first defendant that so constituted any offence; it only had, if at all, liability vicariously for the conduct of Mr Mataka who was not a defendant.

104 The effect of s 54(1) depends upon the first defendant satisfying on the probabilities two things: first, that one or more of the three alleged offences was committed by the plaintiff; ,and, second, that his conduct in doing so contributed materially to the injury which occurred at the time of, or following, such conduct. In that second respect, it seems to me the temporal aspect envisages a course of conduct as contributing to the injury as well as that conduct occurring at the time of the injury by reason of the phrase "injury which occurred at the time of, or following, such conduct". It is necessary to review the elements of each of the three offences relied upon.

105 Section 93C(1) of the Crimes Act prescribes the offences of affray as: "A person who uses or threatens unlawful violence towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of affray and liable to imprisonment for 10 years."

106 The necessary elements to establish the offence of affray are that the accused used or threatened unlawful violence towards another and that such conduct would cause a person of reasonable firmness present at the scene to fear for his or her personal safety. Additionally, s 93D(2) requires a person to be guilty of affray only if the person intends to use or threaten violence or is aware that his or her conduct may be violent or threaten violence.

107 I have earlier specified my findings on the facts as concluded from the evidence. In viewing the conduct of the plaintiff I do so as a course of conduct from his actions in the Velvet Room, the foyer and in the area outside the entrance immediately before and at the time he was punched by Mr Mataka causing the head injuries. In any event, if the offence were limited to the precise time of the injury outside the Club I think the same conclusion would follow as would be in viewing it as a course of conduct. During that whole period the plaintiff was using threatening and abusive words of violence, struggling with other patrons and security guards, physically resisting removal from the Club with threats of violence and actually striking others with his hands and arms, and forcibly seeking re-entry to the Club accompanied by threats of violence and physically striking other persons. Indeed, Mr Blaikie's clear evidence was of a fear that the plaintiff would carry out his threats of violence to both him and others. The persistent conduct of the plaintiff over a period of about 15 or 20 minutes reasonably shows that he had engaged in an intentional and deliberate mode of behaviour to, firstly, stay in the Club and, secondly, to re-enter it. That disorderly and unlawful conduct by him was exacerbated, in terms of his intent. once he was released by the security guards about 10 to 15 metres from the front entrance but then returned after a minute or so shirtless and repeating the earlier threats and physical violence.

108 I am comfortably and well satisfied that the plaintiff engaged in conduct at the relevant times which constituted the offence of affray.

109 The offence of common assault is prescribed by s 61 of the Crimes Act thus: "Whosoever assaults any person, although not occasioning actual bodily harm shall be liable to imprisonment for two years."

110 The elements of this offence of common assault, putting aside its oft joinder with battery, which is a separate common law offence (see R v Taylor [1992] 1 All ER 299 at 302-303) involve an act which intentionally or recklessly causes another person to apprehend the infliction of immediate, unlawful force on his person. Physical contact is not necessary and neither is the infliction of actual bodily harm.

111 I am satisfied to the requisite degree that the plaintiff committed the offence of common assault. In my view, the circumstances of the plaintiff's conduct compel this result in that on multiple occasions he threatened violence to others and associated that with aggressive physical actions.

112 Assault occasioning actual bodily harm is prescribed as an offence by s 59(1) of the Crimes Act as follows: "Whosoever assaults any person and thereby occasions actual bodily harm shall be liable to imprisonment for five years."

113 The elements of this offence are twofold: first, an assault; and, second, occasioning actual bodily harm. The first element is clearly satisfied. As to the second, reliance was placed by the first defendant on the bite inflicted on Mr Kolivuso's left hand by the plaintiff in the foyer area. Evidence of the bite, as earlier recited, was given by Mr Blaikie who saw the bite mark with a speck of blood and helped dress it; Mr Kolivuso also referred to the plaintiff biting his hand and the resultant small scratch.

114 Senior counsel for the plaintiff dismissed the commission of this offence "as no more than trifling or transient" and relied on R v Donovan [1934] 2 KB 498 at 509 where it was said: "...we think that 'bodily harm' has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling."

115 The bite here, I think, clearly falls into that de minimis category. The offence, therefore, has not been made out.

116 The requirements for s 54(1) to operate as a complete defence to the award of any damages to the plaintiff, notwithstanding the first defendant's vicarious liability, are made out. The offences of affray and assault were committed by him and that conduct contributed materially to the injury he sustained while engaged in it, either outside the entrance to the Club when punched or as a course of conduct. The question then arises whether s 54(2) operates to save the plaintiff's damages claim.

117 The first thing to observe about the whole of s 54 is that it is concerned with the concept of damages and not with liability. Thus, the section is framed to deny the award of damages in the specified circumstances rather than to prevent a finding of liability. The distinction was made by Ipp JA in Presidential Security Services (at [124]) in the course of consideration by his Honour of s 54(2) as to whether a corporate defendant could be vicariously liable for the criminal assault committed by a natural person. The distinction, of course, is of considerable importance in construing s 54(2) because it only operates to save an award of damages and then only against a defendant "if the conduct of the defendant that caused the...injury...constitutes an offence." Can, therefore, the criminal conduct of Mr Mataka, if that be what it was, be vicariously attributed to the first defendant to enliven s 54(2)? Senior counsel for the plaintiff said it could but senior counsel for the first defendant said it could not.

118 The offences alleged to have been committed by Mr Mataka were common assault and assault occasioning actual bodily harm. I did not hear any submission by counsel for the first defendant other than that Mr Mataka had committed a vicious assault on the plaintiff. I accept, on the facts as found, that indeed Mr Mataka committed such offences against the plaintiff on the subject occasion.

119 For the plaintiff, senior counsel relied on Presidential Security Services (per Allsop P at [5] and Ipp JA at [145]) for the proposition that vicarious responsibility for a criminal offence can be incurred by a corporate entity where, as was said to be the case here, the employee committing the offence did so in the performance or execution of the employer's responsibilities. The first defendant's senior counsel denied the proposition so relied upon and put that in Presidential Security Services the security guard concerned, unlike Mr Mataka here, was the managing director and sole employee of the company and could be identified as its "directing mind and will". Further, s 54(2) said senior counsel, in its terms did not apply because there was no conduct of the first defendant that constituted an offence.

120 As a matter of statutory construction, I agree with the submissions for the first defendant that s 54(2), in dealing with damages as distinct from liability, is concerned only with the conduct of the defendant that caused the injury. It plainly is so limited in its terms and to infer a concept of vicarious liability for such direct conduct would be to simply read into the sub-section words which are not there. Put another way, my view is that the provision is concerned to deny damages to an injured person who has committed a serious criminal offence except where the injury was caused by conduct of the defendant which itself constituted a criminal offence. Without more, therefore, s 54 (2) cannot be called in aid by the plaintiff.

121 In any event, I do not read Presidential Security Services as necessarily applying to criminal conduct in a vicarious sense. As Allsop P qualified in that case (at [6]), "there may, however, be limits to attributed responsibility. One such limit may be the nature of the offence as one of an intentional act of violence, or deliberate injury". And, as Ipp JA (at [146]) it "depends on the legislation applicable, the nature of the offence in question and the status and position within the company of the person who performs the acts said to constitute the offence". His Honour furthered those remarks (at [147]-[148]) by reference to long-settled authority where, as with the offences here in question, mens rea was an element so as not to be offences of strict or absolute liability and concluded (at [149]-[150]): "149 I reiterate that, absent a statutory provision to the contrary, vicarious liability has been rejected as a means of establishing mens rea in crimes requiring proof of that element (as otherwise criminal guilt could be found without the offender possessing the necessary intent).

150 The situation is different, however, where mens rea does not form part of the offence. Parliament may create offences by strict or absolute liability, and it has long been accepted that, in such a case, the application of vicarious liability principles is not inhibited."

122 On this aspect of a principal being criminally responsible for the acts of an employee by reference to s 54(2), but putting to one side an employee being the directing mind and embodiment of the principal, Ipp JA concluded in Presidential Security Services (at [154]): "154 Assault is not an offence of strict or absolute liability. Furthermore, there is nothing in ss 59 or 61 of the Crimes Act that indicates that the requisite mens rea for the establishment of those offences can be derived vicariously from a servant or agent of a corporation. It follows that the defendant in this case could not be vicariously criminally liable for an assault committed by Mr Bingle in the course of his employment."

123 It follows on that reasoning, in my view, that the plaintiff here is unable to rely on s 54(2) to avoid the adverse effect on his claim for damages of s 54(1).

124 Sections 52 and 53 - Self-defence: The first defendant relied on s 52(1) to avoid any civil liability incurred from the conduct of Mr Mataka in that such conduct was said to be in self-defence where it was necessary to defend himself or other person or, alternatively, to prevent criminal trespass to the premises from which the plaintiff had been removed. For the plaintiff, it was put that the s 52(1) defence was available only to Mr Mataka as there was no act on the part of the first defendant which could be said to be in self-defence; in any case, by reason of s 52(2) the conduct to be in self-defence had to be "a reasonable response" but in no sense could the conduct of Mr Mataka be so described.

125 I disagree with the submission put for the plaintiff that s 52(1) was limited in its scope to the conduct of Mr Mataka and for his benefit and did not extend to the first defendant. Unlike s 54(1) which provided "a court is not to award damages", s 52(1) provides for the circumstance where "a person does not incur a liability." Again, in my view, the distinction is important. If a person, such as Mr Mataka here, could properly rely on self-defence for his conduct then, it seems to me, in terms of attributing responsibility a person who is otherwise vicariously liable, such as the first defendant here, for that conduct must also be able to rely on self-defence to avoid liability. If that were not so then the very conduct from which Mr Mataka would have a defence would be no defence to the person vicariously liable for that same conduct. I think that would be nonsensical.

126 Even so, and given the necessary position that the onus is on the first defendant to establish the s 52(1) defence, I do not consider the present circumstances to admit that Mr Mataka's conduct in so viciously and repeatedly punching the plaintiff could be regarded, as s 52(2) requires, as "a reasonable response". The first defendant's complete reliance on s 52(1) must fail on that ground, but it then becomes necessary to consider the effect of s 53.

127 Section 53 recognises that even though conduct may not be a reasonable response it may nonetheless be in self-defence where the person engaging in it believes, as presently relevant, that the conduct was necessary to defend himself or another person or to prevent a criminal trespass to any premises. In such a situation being shown, the court is not to award damages unless satisfied the circumstances of the case are exceptional and a failure to award damages would be harsh and unjust. Even then, such damages by reason of s 53(2) are to be limited by Pt 2 (excepting Div 3 as to general damages) of the Civil Liability Act as to personal injury damages, despite s 3B(1)(a), and no damages may be awarded for non-economic loss.

128 The first defendant, I conclude, has not made out a case under s 53 that Mr Mataka's actions in punching the plaintiff were in self-defence. Reliance for the conduct as being necessarily in self-defence as set out in s 52(2) was placed on the whole evidence of the circumstances in what occurred and, in particular, that of Mr Blaikie and Mr Semitecolos. However, in the absence of any evidence from Mr Mataka I find unable to determine to any relevant degree his belief as to the necessity for such extreme and vicious conduct as he engaged in. Certainly, in my view, what evidence was available in the proceedings did not extend to the need for such conduct. For instance, the plaintiff had been quelled in the Velvet Room and in the foyer and, initially at least, he had been calmed until he attempted again to re-enter. Why he could not have been similarly dealt with was not explained.

129 In my view, Mr Mataka has not been shown to have been acting in self-defence so that the defence under s 52 has not been made out by the first defendant to avoid the vicarious liability otherwise found and s 53, therefore, has no application.

130 Effect of Civil Liability Act defences: In the result, I find that the first defendant has established the statutory defence under s 54(1) of the Civil Liability Act that damages are not to be awarded to the plaintiff in respect of the vicarious liability otherwise found against the first defendant for the conduct of Mr Mataka. The plaintiff has not made out the ameliorating effect of s 54(2) to make s 54(1) inapplicable. As damages are the gist of this action then, I think, it is appropriate for the first defendant to be given a verdict against the plaintiff.

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