Brian Spratt v Asquith Bowling and Recreation Club Limited

PARTICULARISATION OF THE PLAINTIFF'S CASE

1. During closing submissions, Counsel for the Plaintiff conceded that she could not, on the evidence, establish that Mr Crowther was intoxicated. [81] In essence the Plaintiff's case was advanced on the particulars of negligence set out in paragraphs 22, (k) and (l) which read as follows:- 22 Failing not to permit violent, quarrelsome and intimidating conduct on licensed premises; 22 Failing to ask Rodney Crowther to leave the premises before he became threatening, unruly, intimidating and assaulting the Plaintiff; [and] 22 Failing to restrain Rodney Crowther from threatening the Plaintiff.
2. The Defendant took issue with the Plaintiff advancing a case to the extent that it involved an alleged failure on the part of its employees to remove Mr Crowther from the Club, following the first interaction with the Plaintiff. It asserted that this was something that had not been pleaded or particularised. [82]
3. On 17 August 2016, the Defendant's solicitors wrote to the Plaintiff's solicitors to seek further and better particulars of the Plaintiff's claim. Relevantly the request sought the following information:- "16. As to paragraph 22(a) - (m) of the Statement of Claim: 16.1 At what point in time or upon the happening of what specific event is it contended that the Club ought to have removed Rodney from the Club? 16.2 What about Rodney's behaviour and/or demeanour prior to the subject alleged abuse, intimidation, assault is it contended ought to have brought him to the attention of the Club's employees, agents, servants and/or representatives? 16.3 Please confirm the plaintiff was only in the defendant's premises for a period of 30 minutes prior to the alleged abuse, intimidation, assault by Rodney? 16.4 Is it asserted the plaintiff was aware of how many alcoholic drinks Rodney had consumed prior to the alleged abuse, intimidation and assault? If so how many? 16.5 On what basis does the plaintiff assert the Club should have refused service to Rodney? 16.6 On what basis does the plaintiff assert the Club should have removed Rodney from the premises? 16.7 What would have constituted 'adequate precautions' being taken by the Club for the plaintiff's safety." [83] The Plaintiff's solicitors responded to this request by a letter dated 6 September 2016, which relevantly stated:- 16.1 When Rodney swore at the bar manager. 16.2 We refer to the response to 16.1 above. 16.3 Yes. 16.4 The Plaintiff is unaware. 16.5 We refer to the pleadings filed and the above responses. 16.6 We refer to the pleadings filed and the above responses. 16.7 We refer to the pleadings filed and the above responses. [84]
4. The Plaintiff's opening was in the following terms:- "Now, it's the plaintiff's case that what happened at 3.30 that afternoon warranted Crowther being removed. Crowther had a history, he had been banned for six months some time earlier for a domestic dispute with his partner as I understand it in the past so he had a track record then. Instead the club let him stay there for the afternoon drinking. We don't have any expert evidence on intoxication but we say that that's a factor that is relevant in the case and on balance of probabilities he was intoxicated, that they continued to serve him alcohol up to the time that he assaulted the plaintiff, and that even having been so aggressive towards the plaintiff to the knowledge of the staff, he still wasn't removed. So, we say that on the factual causation level in terms of liability, he should have been removed at 3.30, he should have been removed or isolated after the first attack on the plaintiff. Additionally, or alternatively the plaintiff should have been taken out of harm's way at that stage. He was obviously the target of this man and doing either of those things - - (emphasis supplied)." [85]
5. In light of the objection taken during closing submissions and the above opening I sought clarification from the Defendant as to the unfairness it asserted it occasioned. The transcript records:- "HIS HONOUR: The plaintiff opened on a particular basis. Pleadings are there to define the evidence and you can object to evidence if it falls outside the pleadings. But I just need to know if there's an unfairness to you. KELLY: There is, because if I had understood there to be an inference drawn about the absence of evidence from people who were available to give evidence on it then I would've called them. HIS HONOUR: How could you not have been aware of that? Everyone knows that. KELLY: No, I'm not being cute about this. I say seriously when I said a minute ago, I'm still not actually sure what is alleged to be the precaution we should've taken. In other words, what it is in fact we've failed to do? Now, I've got the pleadings there but I don't know what else is. Your Honour and I have proceeded-- HIS HONOUR: There was an opening given. KELLY: And I said-- HIS HONOUR: And you raised an issue about that. KELLY: Yes. HIS HONOUR: And that was dealt with. You didn't raise any other issue about that. KELLY: But your Honour there's still no evidence about it. In reality the only evidence about that is essentially the plaintiff giving oral evidence about adding some information to what's evident from the CCTV. But if the plaintiff is going to say, I'm actually going to run a case that your conduct of your two people, during the course of that period, was negligent in the following respects, they should have done something to remove the plaintiff. You should have done something more to separate or remove Crowther. If that had been ever particularised we would have asked questions about, certainly the second one of those, "What exactly do you mean by that?" But if that was specifically dealt with and specifically pleaded, my position could well be different. It would be subject to instructions but it could well be different and the person who could give evidence on that would not have been available until today." [86]
6. Further paragraph [12] of the Statement of Claim reads:- [12] In the circumstances where the Defendant was unable to restrain and contain Rodney Crowther and in the circumstances of Rodney Crowther's verbal abuse and vicious assault and threatening behaviour, the Plaintiff suffered shock and in fear for his life, ran from the Defendant's premises. The Defence in this regard was:- [6] In response to paragraph [12] of the Statement of Claim, the Defendant does not admit that they were unable to restrain and contain "Rodney" but otherwise unable to plead to the assertion that the Plaintiff ran in fear of his life as it does not have that knowledge.
7. When those pleadings were drawn to Counsel for the Defendant's attention, I was informed that it was a "pleading of theoretical factual matters" and that the particulars of negligence "saying these are the ways in which [the Defendant] breached [their] duty" should have been "specifically pleaded" and that if it was to be pleaded that the Defendant "should have done something different with Crowther, that should be specifically pleaded." [87]
8. The principles relating to the purposes and functions of particulars was summarised by Macfarlan JA in Fregnan v Stanizzo. [88] In that case, His Honour stated:- [15] … it is not appropriate for a court to order a plaintiff to provide detailed particulars of allegations that are plainly made merely to provide background or context to the central allegations in a statement of claim. Furthermore, whether the allegations are central or not, a high degree of specificity in allegations is not necessarily warranted. The extent to which it is required in any particular case is to be determined by the relevant legal practitioners and the court by reference to the circumstances of the case and having regard to the real issues between the parties. The "just, quick and cheap resolution of the real issues in the proceedings" is not advanced by permitting defendants to seek unnecessarily detailed particulars.
9. Further following an examination of the authorities and Uniform Civil Procedure Rules 2005 (NSW) r 15.5, Harrison AsJ in Collendina Pty Ltd and Ors v Murray Darling Basin Commission and Ors held that the Plaintiff was required to plead the material facts necessary to formulate the cause of action and was not required to plead that there was a reasonably practicable precaution or alternative course of conduct. [89]
10. When I asked Counsel for the Defendant which of the facts presented took him by surprise, he responded: "Nothing in reality." [90] Such a concession was properly made.
11. To the extent that the Defendant may have been in doubt, it was clear from the opening given by Counsel for the Plaintiff as to the case that the Plaintiff would be advancing.
12. Counsel for the Defendant was asked as to what would happen if it was in the opening and he did not note it, he indicated that he could "call these people [and] have to get them back to Sydney …" [91] I indicated at that point that he had made his decision but asked whether he was "in any doubt at that time?" [92] The transcript records the following response:- "KELLY: I was in doubt exactly as to how it was alleged that the defendant was in breach of its duty. What it is that's supposed to have been done and when and how, and we're entitled to seek particulars. And for example, I'll give you another example, your Honour, if this is being pleaded and it identified as they're required to do the risk of harm and the risk of harm is being injured as a result of the continued presence of a violent and aggressive patron on the premises, we would have sought particulars of a number of things. When was he violent, when was he aggressive, and continued from when? Is it from 3.30? Is it from 7:32:50? And that identifies for us exactly what case we have to meet." [93]
13. That contention has little substance when the Defendant concedes as noted earlier, that nothing in reality took it by surprise.
14. Indeed the only complaint made following the Plaintiff's opening was that the Plaintiff should have particularised an allegation of negligence that he should have been removed by the Defendant from the risk of harm. That was not a circumstance pressed in the Plaintiff's closing. Nevertheless the Defendant was then asked whether there was anything else in the opening beyond that matter which took him by surprise before responding that there was not. [94]
15. At the conclusion of the Defendant's case, Counsel for the Plaintiff plainly indicated reliance on a Jones v Dunkel inference, [95] based on the Defendant having the barman identified by the Plaintiff present in Court that day. A concession was not forthcoming by Counsel for the Defendant, but as I indicated, it was unnecessary. What is clear is that the Defendant could not have been in any doubt that the Plaintiff would seek to rely on a Jones v Dunkel inference at the end of the day's proceedings and Counsel for the Plaintiff responding that she had no case in reply. [96]
16. Accordingly the decision not to call witnesses should be viewed as a "deliberate" one. It is difficult to understand how any misapprehension as to the Plaintiff's case could have arisen bearing in mind the way it was opened and pleaded.
17. During submissions (including in reply), Counsel for the Defendant adverted to: "making an application" [97] and his capacity to call persons who could have addressed inferences available under Jones v Dunkel. [98] Counsel stated: "if I had understood there to be an inference drawn about the absence of evidence from people who were available to give evidence on it then I would've called them." [99]
18. In circumstances of a deliberate decision made by a party to not call evidence, where the hearing was complete and the matter was raised in course of submissions such a request would not be entertained. [100]
19. It is unnecessary in these circumstances to make an order to amend the Statement of Claim to include "failing to remove Crowther after he had to be restrained from attacking the Plaintiff" as sought by the Plaintiff. This appeared to be acknowledged by the Plaintiff's Counsel. [101] Even if I was to accept that it may have been necessary to provide particulars beyond those formally pleaded the Defendant was told on 6 September 2016 that the that the Plaintiff was alleging that Mr Crowther should have been removed at the time he swore at the Manager; [102] a matter referred to in Exhibit 1 by Mr John Atlass recording, Mr Crowther "swearing big time" and "everyone in the Club heard the language said and it was disgraceful." It was further referred to in the Plaintiff's opening when it was stated [Crowther] should have been removed or isolated after the first attack on the Plaintiff. No objection was taken at that point.

FINDINGS

1. The principles relevant to inferential reasoning were canvassed in Seltsam Pty Ltd v McGuiness; James Hardie & Coy Pty Ltd v McGuiness, [103] where Spigelman CJ stated:- [84] It is often difficult to distinguish between permissible inference and conjecture. Characterisation of a reasoning process as one or the other occurs on a continuum in which there is no bright line division. Nevertheless, the distinction exists. [85] Lord Macmillan in Jones v Great Western Railway Co (1930) 47 TLR 39, in the context of stating that a possibility that a negligent act caused injury was not enough, said (at 45): "The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have validity as legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference." [86] After referring to this passage, Sir Frederick Jordan in Carr v Baker (1936) 36 SR(NSW) 301 said (at 306): "The existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible." [87] As Lord Wright put it in a frequently cited passage in Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169-170: "Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some case the other facts can be inferred with as much practical certainty, as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture." [88] The test is whether, on the basis of the primary facts, it is reasonable to draw the inference. (See eg Layton v Vines (1952) 85 CLR 352 at 358).
2. This decision was favourably cited in State of New South Wales v Fuller-Lyons. [104] Although the factual findings in that case were reversed on appeal by the High Court, the principles relating to the application of inferential fact-finding were not. [105]
3. In Henderson v Queensland, Gageler J referred to the principles for drawing inferences and stated:- [89] Generally speaking, and subject always to statutory modification, a party who bears the legal burden of proving the happening of an event or the existence of a state of affairs on the balance of probabilities can discharge that burden by adducing evidence of some fact the existence of which, in the absence of further evidence, is sufficient to justify the drawing of an inference that it is more likely than not that the event occurred or that the state of affairs exists. The threshold requirement for the party bearing the burden of proof to adduce evidence at least to establish some fact which provides the basis for such a further inference was explained by Kitto J in Jones v Dunkel: "One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed." [90] That description of the ordinary operation of the civil standard of proof applies equally to a case in which the legal burden of a party is to prove the non-happening of an event or the non-existence of a particular state of affairs as to a case in which a party's legal burden is to prove the happening of an event or the existence of a particular state of affairs. As Davidson J earlier explained in the Supreme Court of New South Wales in Ex parte Ferguson; Re Alexander: "In all legal proceedings the basic principle at common law is that in civil cases a plaintiff must prove the essential elements of his case even if that course involves establishing the assertion of a negative ... He must establish what is really the affirmative in substance, not what is merely affirmative in form ... But if the party bearing the onus furnishes some evidence which gives rise to a presumption or inference of fact in his favor or that presumption already exists, the onus shifts to the other party". His Honour's reference to evidence adduced by the party bearing the legal burden of proof giving rise to a "presumption or inference of fact" was to nothing more than an inference of fact drawn, in accordance with ordinary processes of inferential reasoning, in the absence of further evidence[96]. His Honour's reference to an "onus" then shifting to the other party was to nothing more than the practical need (sometimes referred to as a "tactical burden") for an opposing party to adduce further evidence if that party wants to prevent such an inference of fact actually being drawn in the circumstances of the case. [106]
4. Although His Honour's decision was a dissenting one, neither party when the cases were drawn to their attention, contended that it inaccurately summarised the principles. [107]
5. The principles relevant to the drawing of inferences where witnesses were not called and other evidence in relied on were discussed in Manly Council v Byrne & Anor. [108] In that case, Campbell J (with whom Beazley JA and Pearlman AJA agreed) referred to the decision of the High Court of Australia in RPS v R [109] and stated:- [57] In RPS v R [2000] HCA 3; (2000) 199 CLR 620 a majority of the High Court (Gaudron A-CJ, Gummow, Kirby and Hayne JJ), dealing with a case where a complainant gave direct evidence of sexual misconduct by the accused towards her, and the accused failed to give evidence, set out at [23] a passage from the judgment of Abbott CJ in R v Burdett (1820) 4 B & Ald 95 at 161-162; (1820) 106 ER 873 at 898: "It is useful to start by referring to the well-known cases of R v Burdett and Jones v Dunkel. Burdett arose from a prosecution for criminal libel. Abbott CJ said: "A presumption of any fact is, properly, an inferring of that fact from other facts that are known; it is an act of reasoning; and much of human knowledge on all subjects is derived from this source. A fact must not be inferred without premises that will warrant the inference; but if no fact could thus be ascertained, by inference in a court of law, very few offenders could be brought to punishment. In a great portion of trials, as they occur in practice, no direct proof that the party accused actually committed the crime, is or can be given; the man who is charged with theft, is rarely seen to break the house or take the goods; and, in cases of murder, it rarely happens that the eye of any witness sees the fatal blow struck or the poisonous ingredients poured into the cup. In drawing an inference or conclusion from facts proved, regard must always be had to the nature of the particular case, and the facility that appears to be afforded, either of explanation or contradiction. No person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradiction; but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction, if the conclusion to which the proof tends be untrue, and the accused offers no explanation or contradiction; can human reason do otherwise than adopt the conclusion to which the proof tends? The premises may lead more or less strongly to the conclusion, and care must be taken not to draw the conclusion hastily; but in matters that regard the conduct of men, the certainty of mathematical demonstration cannot be required or expected; and it is one of the peculiar advantages of our jurisprudence, that the conclusion is to be drawn by the unanimous judgment and conscience of twelve men, conversant with the affairs and business of life, and who know, that, where reasonable doubt is entertained, it is their duty to acquit; and not of one or more lawyers, whose habits might be suspected of leading them to the indulgence of too much subtlety and refinement. Their Honours continued at [23]: "This mode of reasoning was described by Windeyer J in Jones v Dunkel as "plain commonsense", and so it is. But it is essential to note its limits. It relates to the drawing of inferences or conclusions from other facts. It is not a mode of reasoning that is concerned, for example, with whether the direct evidence of an eyewitness should be accepted." [58] I do not take that passage as deciding that inference from failure to call a witness never has a role to play in deciding whether evidence of an eyewitness should be accepted. Rather, the passage is directed to the particular type of reasoning set out by Abbott CJ, where an ultimate fact is being proved by inference, and a witness who could cast light on whether that ultimate fact is really true fails to give evidence. Manifestly, deciding whether an eyewitness should be accepted is not reasoning of that type. [59] In RPS, their Honours also said, at [26]: "In a civil trial there will very often be a reasonable expectation that a party would give or call relevant evidence. It will, therefore, be open in such a case to conclude that the failure of a party (or someone in that party's camp) to give evidence leads rationally to an inference that the evidence of that party or witness would not help the party's case and that: 'where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.' The two Jones v Dunkel inferences are ones which, if drawn, can sometimes be taken into account in deciding whether to accept evidence of an eyewitness. If a party called an eyewitness, but the judge had some doubts about the credibility of that witness, the story of that witness did not mesh well with other established facts, and there was a basis in the evidence for concluding that the eyewitness's evidence was incorrect, a trial judge could sometimes be justified in using the failure of a party to call other available eyewitnesses as part of the reasons for not accepting the evidence of the eyewitness who was called. Further, whether the light was on is not itself an ultimate question in the case, but just one matter which needs to be decided as part of a complex of facts which are evaluated to decide whether the Council took reasonable care. For these reasons, I would not regard the fact that the question of whether the light was on depended partly on evidence of eyewitnesses as in itself meaning that no inference of a type licensed by Jones v Dunkel could be drawn. [110]
6. In this case the evidence enables the following findings to be made: 1. Mr Crowther had been at the club from around 3.20 pm that day although until the time of the incident at 7.45pm. During that time he had consumed alcohol although the precise amount cannot be ascertained. The Plaintiff was present when he placed his discarded betting tickets on the floor rather than a nearby bin. When the Plaintiff remonstrated with him, he swore at him several times burped loudly in his face. He then assaulted and threatened the Plaintiff resulting in two staff intervening to separate him. At this point he continued to seek out the Plaintiff during a sequence which included lifting a chair from the floor before returning it to the floor .and after a further attempt to get to the Plaintiff throwing the contents of a glass of beer at him; 2. According to the unchallenged evidence of the Plaintiff, Mr Crowther was told by John the bar manager: "You need to go home" or words to the effect of: "You need to leave". [111] The fact that Mr Crowther was asked to leave was confirmed in the Club report of incident. [112] 3. According again to the Plaintiff's unchallenged evidence Mr Crowther replied: "I can't drive, you'll have to call me a taxi. I've had too much to drink"; [113] and 4. On the Plaintiff's evidence these conversations follow Mr Crowther's acts of aggression when he was stated to have calmed down a bit. What is clear is that he did not leave but was in an adjoining partitioned area where he remained. In that area there is no evidence that he was accompanied by staff until he re-entered the area the betting area.
7. The available inferences from this evidence are 1. That the bar manager assessed the circumstances as such to justify Mr Crowther being required to leave; 2. Because of the alcohol he had consumed Mr Crowther was of the view he not drive; 3. That Mr Crowther was prepared to leave the Club, but required staff to arrange a taxi to depart; 4. That the target of Mr Crowther's aggression was the Plaintiff, not any other staff or patron; and 5. The circumstances of Mr Crowther's cause for grievance against the Plaintiff had not been resolved at the point he moved into the adjoining room.
8. At the point that Mr Crowther moved into the adjoining area, and I cannot determine the circumstances that allowed him to remain on the club premises.

DUTY OF CARE

1. In Adeels Palace Pty Ltd v Moubarak, [114] the High Court unanimously held that a licensee owed a duty of care to prevent injury to patrons from the "violent, quarrelsome or disorderly conduct of other persons". The Court held:- [25] Several considerations set the present case apart from Modbury and point to the conclusion that Adeels Palace owed each plaintiff a relevant duty of care. First, the complaint that was made in these cases was that the occupier of premises failed to control access to, or continued presence on, its premises. Secondly, the premises concerned were licensed premises where liquor was sold. They were, therefore, premises where it is and was well recognised that care must be taken lest, through misuse and abuse of liquor, "harm [arise] from violence and other anti-social behaviour". And thirdly, the particular duty said to have rested on the occupier of the premises (who was the operator of the business that was conducted on the premises) is a duty to take reasonable care to prevent or hinder the occurrence of events which, under the Liquor Act, the licensee was bound to prevent occurring - violent, quarrelsome or disorderly conduct. (And although variously expressed in the legislation of other Australian jurisdictions, the evident scheme of all liquor licensing laws in Australia is to minimise anti-social conduct both on and off licensed premises associated with consumption of alcohol.) [26] In the circumstances reasonably to be contemplated before the restaurant opened for business on 31 December 2002 as likely to prevail on that night, Adeels Palace owed each plaintiff a duty to take reasonable care to prevent injury to patrons from the violent, quarrelsome or disorderly conduct of other persons. The duty is consistent with the duty imposed by statute upon the licensee and which was a duty enforceable by criminal processes. No question arises of translating a statutory power given to a statutory body into the common law "ought". The duty is not absolute; it is a duty to take reasonable care. It is not a duty incapable of performance. It is a duty the performance of which is supported by the provision of statutory power to prevent entry to premises and to remove persons from the premises, if needs be by using reasonable force. Although it is a duty directed to controlling the conduct of others (for the avoidance of injury to other patrons) it is a duty to take reasonable care in the conduct of activities on licensed premises, particularly with regard to allowing persons to enter or remain on those premises. [115]
2. In Wagstaff v Haslam, [116] Basten JA (with whom Santow and Bryson JJA agreed) held:- [24] … The basis of the duty must be found in the level of control exercised by the occupier over those on the premises and the occupier's knowledge, or ability to know about, the condition of persons on the premises where liquor is being sold. [117]
3. His Honour proceeded to endorse the comments of the Full Federal Court in Chordas v Bryant (Wellington) Pty Ltd [118] where it was stated: Particularly in the case of an hotel, which provides a facility pursuant to a licence authorising the provision of liquor and pursuant to Acts and regulations which require or imply that the facility be open to the public, it is necessary to keep in mind that the licensee may have no control over his patrons save the power to eject them for good cause. As we have said, the manager of an hotel, like the manager of other facilities, must take reasonable care for his patrons and, if cause is shown which requires that a patron be closely supervised or ejected or that another patron be warned, the manager should take whatever may be the appropriate step in the interests of the safety of his patrons. However, what is the appropriate course in a particular case obviously depends upon the circumstances of the case. [119]
4. A duty of care towards the Plaintiff was clearly owed in the circumstances of this case. This existence of a duty was conceded by the Defendant. [120]

BREACH OF DUTY

1. In determining the question of breach regard is to be had to the terms of s 5B of the Civil Liability Act 2002 (NSW). [121] The risk of harm regard is to formulated in accordance with the principles summarised in Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council. [122]
2. In my view, the risk of harm is that of the Plaintiff occasioning injury in the course of evading the continuing presence of a violent and aggressive patron in the premises. [123] The precaution identified by the Plaintiff was to remove the Mr Crowther from the premises after the first altercation.
3. The Defendant asserted that this was not a basis for establishing breach of duty contending that in any criticism that the staff acted incorrectly, the Plaintiff should have produced an expert asserting that: "… yes you're right that's not a good tactic or it is." [124] However the circumstances are such that the Plaintiff is entitled to rely on common knowledge or common sense to discharge the evidentiary onus of establishing a practicable alternative without technical or expert evidence. [125] This is especially so in light of the statutory power contained in s 77(2) of the Liquor Act 2007 (NSW). [126] The Plaintiff having discharged its evidentiary onus, the Defendant for its part led no evidence and asked no questions towards proving that no reasonably practicable alternative course of conduct was open to it. [127]
4. The Defendant contended that it was not foreseeable that if it did not act that the Plaintiff would be injured in the way he was in what was described as a 13 second interval between the time that Mr Crowther re-enters and the Plaintiff leaves. [128] It submitted that this was because up until Mr Crowther rushes in, it was not foreseeable that that the Plaintiff would do a runner and shoot out of the club and rupture a tendon. [129] Foreseeability however does not require the precise chain of events that led to the injury to be foreseen. [130]
5. In my view, having regard to the principles in s 5B(1) of the 2002 Act, the risk of harm was clearly foreseeable and not insignificant. The Plaintiff had previously been the subject of Mr Crowther's aggression and violence. The acts that he had taken were significant over a period and required staff intervention to the point where he was requested to leave. The Plaintiff was placed in fear. Mr Crowther's grievance had not resolved. The risk of harm being that the Plaintiff would in circumstances of a continuing violence and aggression seek to evade his assault and in the process suffer injury was foreseeable. Mr Crowther was in an area that enabled him to view the Plaintiff. There is no evidence that he was restrained in that area. He had not been removed.
6. In determining what a reasonable person in the Defendant's position would have taken precautions against the risk of harm the Court is required to consider amongst other relevant things the factors in s 5B(2) of the 2002 Act.
7. In terms s 5B(2) of the 2002 Act, the probability that harm would occur if care were not taken was high. The likely seriousness of the harm was high. On the evidence before me the burden of taking the precautions to avoid the risk was not significant involving removing Mr Crowther from the premises. The evidence indicates that at the point Mr Crowther was moved away from the TAB area, he was compliant and had agreed to leave subject to obtaining a taxi. He had no grievance with staff members or patrons other than the Plaintiff. No explanation has been provided as to why the initial decision to ask him to leave was not thereafter progressed whilst the Plaintiff remained on the premises. No question of social utility arises.

CAUSATION

1. This is an action brought against the Defendant for liability arising out of the acts of a third party. The Defendant submitted that "KELLY: …. Your Honour helpfully made some observations about what Crowther appears to do and then in assessing the defendant's conduct in the minute and 13 seconds or so whilst John is in the passage way, there's no suggestion that Crowther at that point in time, although he might have said, "I'm gunna need a cab." There's no suggestion at that stage he's gone into the other room willingly. He's not there having a chat with these guys saying, "I'm all happy and merry." He's not compliant to the extent that the defendant's people are saying, "Well we don't have to worry about him. He's fine. He's sitting down." It's self-evident about what happened since. They still have to be vigilant. They're still dealing with what is an emergency situation for that minute and 13 seconds and so that when it comes to say, what reasonably, in execution of their duty, what is it that they failed reasonably to do? That with respect, has to be taken into account. That they're still in an emergency situation and anything that has to have occurred, has to occur in that period that would have made a difference for it to be causative." [131]
2. These contentions cannot be accepted in light of my earlier findings as to the circumstances at the time of Mr Crowther's departure. How Mr Crowther came to remain on the premises in the adjoining room after the bar manager instructed him that he had to leave was not explained. The Defendant observed however that one staff member still saw the need to keep watch on Mr Crowther whilst he was in the adjoining area. [132]
3. The failure of the Defendant to remove Mr Crowther led to a further interaction that created a reasonable apprehension of injury leading the Plaintiff to evade his assault in the course of which injury was occasioned. I am satisfied that factual causation has been established and that it is appropriate for the scope of the Defendant's liability to extend to the harm caused. [133]

CONTRIBUTORY NEGLIGENCE

1. The Defendant submitted:- "But we do plead contributory negligence. They are specifically stated in the defence but I'll just go through them. I say that the plaintiff provoked Crowther who, on his own evidence, last time he saw him he was physically assaulting his wife or at least arguing with her. It was none of his business. He had 90 seconds, despite what he says, between this thing occurring, him walking away and coming back and then he chooses to instigate an argument or at least make an observation to this fellow who's belched in his face, on his version, and mumbled something. He had any number of reasonable options. A man of his size against a fellow twice as big, is not taking reasonable care for his own safety and confronting him about something that in reality is none of his business. Secondly, his failure to take steps to remove himself during the initial six minutes, notwithstanding this fellow is clearly - he's got two people trying to look after his wellbeing. He chooses not to go for reasons that include, 'I've got a full beer and it's not my fault.'" [134]
2. s 5R of the 2002 Act provides:- 5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.
3. The principles to be applied are those set out by the High Court in Podrebersek v Australian Iron and Steel Pty Ltd. [135]
4. In Verryt v Schoupp, [136] Meagher JA (with whom Gleeson JA and Sackville AJA agreed) recited his decision in Davis v Swift, where he stated:- "[29] Section 5R of the CL Act … provides that the principles applicable in determining whether a person has been negligent, which include those in s 5B, also apply in determining whether the person who has suffered harm has been contributorily negligent in failing to take precautions against the risk of harm which materialised and resulted in injury. As Basten JA observed in Gordon v Truong [2014] NSWCA 97; 66 MVR 241 at [15], a case involving a collision between a pedestrian and a motor vehicle, the existence and extent of a claimant's contributory negligence is to be assessed by reference to the risk of harm which is the subject of his or her claim for damages, and the precautions that a reasonable person in the claimant's position would have taken against that risk. Section 5S provides that in apportioning responsibility a court may determine a reduction of 100 per cent in the claimant's damages by reason of contributory negligence." [137]
5. The Plaintiff had not seen Mr Crowther having an argument with his wife earlier that day. There was some evidence that approximately 18 months earlier, the Plaintiff saw Mr Crowther assaulting his wife in the car park. Although that line of questioning in chief was objected to, the Defendant pursued it in cross examination contending that the Plaintiff at the time of making his comments knew that Mr Crowther was a man capable of violence. The Plaintiff rejected this stating his only knowledge was that Mr Crowther was capable of violence to his wife. It was not put, let alone established, that in making the remarks the Plaintiff did, he was provoking or inciting Mr Crowther, nor that as a club member it was none of his business to make the remarks. There is nothing in the Plaintiff drawing attention to the location of a bin and that members should not have to walk over the trash that can said to amount to a failure to take precaution against the risk of harm which I would regard as the risk of Mr Crowther responding with physical violence. The Plaintiff's evidence was that he was after making his remarks and witnessing Mr Crowther's reaction he did not say another word, that he was stunned frozen and holding his beer. He rejected the suggestion that he smirked at Mr Crowther. I accept the Plaintiff's evidence in this regard.
6. The Defendant further drew attention to the Plaintiff's reasons for not leaving including that he had a full beer and perceived himself as having done nothing wrong at the time. [138] The pleaded particulars of contributory negligence did not raise this issue. However I am satisfied that it has no substance in any event. The Plaintiff's evidence was that after the first incident he had concern for his wellbeing and was worried about leaving before Mr Crowther left because he would "just go outside and follow me home and beat me up outside." [139] Other than the fact that Mr Crowther was in the adjoining room, there was no evidence at this point that the Plaintiff knew or ought to have known of any further arrangements in relation to Mr Crowther remaining on the premises. [140] There is no evidence the Plaintiff being spoken to by any of the Defendant's employees.
7. In my view, the claim for contributory negligence fails.

DAMAGES

1. I turn to consider the question of damages. The Plaintiff's evidence was that following the incident, he took two or three steps and his left Achilles tendon snapped. He experienced excruciating pain, which he described as being hit by a massive stick on the back of the leg, and collapsed to the ground. He stated that he was on the grounds for a few seconds and then got up, and hopped and limped, trying not to put his foot on the ground as it caused "massive pain." [141]
2. Next to the Asquith Bowling Club was a football field, and the Plaintiff said that he proceeded down the length of the field to where the houses started. He proceeded to the first house and collapsed on the front lawn for a period that he expressed as seeming like an "hour or more." He described himself as being scared, in massive pain, confused and not knowing how to get home. He said that he eventually stood up on his feet but fell back down before getting back up again. He said he put weight on his heel and hobbled home at around 11:30 pm to midnight. He stated that every time he saw headlights that he feared that it was Mr Crowther in a taxi.

Medical evidence

1. The following day, the Plaintiff contacted Dr Healey, his general practitioner, who referred him to Dr Newman, orthopaedic surgeon, and arranged an ultrasound. Dr Newman saw the Plaintiff on 6 June 2013, and prescribed a CAM walker in the hope that surgery could be avoided.
2. On 11 June 2013, the Plaintiff saw Dr Healey again, who referred him to Dr Roderick Kuo, for a second opinion. Dr Kuo saw the Plaintiff on 11 June 2013, and arranged for a left Achilles tendon repair. This was carried out at Norwest Private Hospital on 13 June 2013. [142] The Plaintiff was reviewed by Dr Kuo on 4 July 2013 and placed in a hinged ankle brace. He was advised to remain non-weight bearing and had been prescribed Clexane and Endone. The Plaintiff's evidence was that he remained on Endone until the pain went away, but he tried not to take too many tablets. [143]
3. On 15 August 2013, Dr Kuo recommended that the Plaintiff cease the CAM walker and work on a range of motion exercises with a physiotherapist. Physiotherapy commenced with Hunter Street Physiotherapy on 20 August 2013. The Plaintiff at that point commenced full weight-bearing. He was reviewed for a further time by Dr Kuo on 19 September 2013, and was noted to be progressing well. He was advised to increase activities as tolerated and no arrangements were made for his return. [144] The Plaintiff continued to have regular physiotherapy until 11 December 2013. [145]
4. On 1 October 2013, Dr Healey certified the Plaintiff unfit for work until 8 November 2013, and referred him for an x-ray of the right foot. Further medical certificates were issued, stating that the Plaintiff should be able to resume normal duties in 2 months' time. [146]
5. On 25 November 2013, the Plaintiff resumed employment, having been certified unfit until that time. [147] On 9 January 2014, the Plaintiff consulted Dr Healey complaining of persisting paraethesia along the lateral border of the left foot, post-surgery, discomfort along the lateral border, left foot after wearing shoes for a day, relieved by taking shoe off. [148]
6. The Plaintiff was examined by Dr Peter Conrad at the request of his solicitors on 19 April 2016. Dr Conrad noted that the Plaintiff continued to have stiffness in his left heel that was made worse by standing, walking and going up and down stairs. He noted that the Plaintiff had particular difficulty climbing up and down pit ladders, which had rounder rungs. In conclusion, Dr Conrad felt that the Plaintiff had made a good recovery and did not require specific treatment. He noted that the Plaintiff was well-motivated and continued to work as a lift mechanic, as he was able to do this, but had difficulty working in confined spaces, going up and down difficult ladders with rounder bars. He found a 1% serious bodily scarring and a 20% permanent loss of efficient of the left leg below the left knee. In his supplementary report, dated 4 May 2016, Dr Conrad stated that:- "…[A] sudden 'take-off' under such circumstances of duress could put severe strain on an Achilles tendon causing it to rupture." [149]
7. Dr Clark, psychiatrist, saw the Plaintiff on 10 October 2016 and diagnosed the Plaintiff as suffering from an acute stress reaction consequent to the rupture of his Achilles tendon. He noted that the recovery was within the requisite four weeks and found the Plaintiff's prognosis to be excellent. [150]

Plaintiff's evidence

1. The Plaintiff qualified in 1979, doing a pre-apprenticeship welding course, and between 1980 and 1982, completed a three year boiler making apprenticeship. He worked with various employers as a boiler maker until 1999, when he worked with Fairways for six months, fabricating structural stairs, handrails, and balustrades welding steelworks. In 1999, he started his own business, fabricating structural steel. On 14 October 2002, the Plaintiff commenced employment with Kone Elevators, as a fitter on a full time basis. He remains in this employment until the present time.
2. So far as previous injury is concerned, the Plaintiff had a right knee reconstruction in 1995 consequent to a soccer injury. He felt as though it was a fairly severe injury but described his recovery as being as best as one could hope for the injury. However, he did return to playing soccer after the injury. In 2001, he fell off a motorcycle coming home from work and injured his right knee again. He recalls being examined by Dr Mervin Cross, but did not recall an operation. He also appears to have had a fracture to his left fifth finger [151] many years ago, but no specific ankle injury.
3. Consequent to the injury the subject of these proceedings, he stated that he was able to self-care. Whilst he acknowledged being on Endone for a period, he said he tried to not take too many and ceased taking it by the time he returned to work. He said that he lived with another male at the time, so the work was done, and by the time he returned to work, he was able to do most of the housework. He described his main problem as going down the stairs carrying heavy loads. He stated that he could support a load of his body and the weight so his heels "smashes" into the stairs' tread as he went down. He described the load as tool bags, bits of equipment that had to be stripped from the shaft. He stated that his problem was when he lowered himself down from toe down to heel, and went he went down on his right leg, he cannot lower down and it slapped into the stair tread. [152]
4. In evidence, the Plaintiff stated that at work he did not have a problem carrying heavy objects going downstairs as he had another person who could help him. He stated that the last time that this happened was more than a few weeks ago, and denied that this resulted in a loss of overtime. [153]
5. He said that his walking was not affected, but he cannot run as he used to. [154] He stated that he stopped playing soccer "years ago" and the only recreational activity he does is snow skiing, but he has not been skiing since his injury. [155] He stated that there were other ways he kept fit and that he could ride a pushbike. [156]
6. In cross-examination, the Plaintiff conceded that since returning to work he did not have time off, except occasionally feeling sick. [157] The Plaintiff acknowledged problems with his right knee since November 2013 and said that he stopped playing soccer "twenty years ago." He said that in early 2015, he saw Dr Healey who arranged an x-ray and eventually, he was referred to Dr Gooden, a knee specialist, who he saw on 18 December 2015. He complained of a significant decrease in right knee function. The Plaintiff acknowledged complaining about severe dysfunction and that sometimes the symptoms were more severe than others. He acknowledged that the doctor had informed him to take up the exercise bike and that he was heading for a "total knee replacement."

Analysis

1. In all, the Plaintiff has suffered a serious injury involving significant pain and operative treatment. I accept that there is a minor level disfigurement, and no loss of expectation of life. His amenities of life have been impacted on the way outlined in in his evidence. During the period of six months he was off work and in severe pain, and suffered an acute stress reaction for a maximum of four weeks. His emotional state included a level of sleep disturbance and having dreams about monsters. [158] Essentially however, the Plaintiff described being back to normal except going down stairs and carrying heavy loads.
2. The Defendant has submitted non-economic loss of between 20 - 25% of the most extreme case. The Plaintiff has submitted that the appropriate figure would be 30% of the most extreme case. The Plaintiff is aged 54 years, and at the time of the accident, he was 50. Overall, I would assess him as 27% of the most extreme case, being an amount $60,500. I would allow out-of-pocket expenses agreed for the past at $6927. The Plaintiff conceded no evidence of future out-of-pocket expenses. [159] Past economic loss was agreed in the sum of $18,270. [160]
3. Pursuant to s 13(1) of the 2002 Act, a Court cannot make an award of damages for future economic loss unless the claimant first satisfied the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury.
4. Although a claim has been made for a buffer for future economic loss in submissions Counsel for the Plaintiff indicated that it did not maintain the claim for the extent of the claim for future economic loss. The only evidence in this regard was that of the Plaintiff when at work going down the stairs dropping his foot and having difficulty carrying loads. So far as the medical evidence is concerned the evidence of Dr Conrad was a difficulty with rounded bars going down shafts. The evidence from the Plaintiff was that he has incurred no loss of income since his return to work. He gave no evidence of any insecurity in his current position. During the time the Plaintiff was off work he used his holiday pay, accrued sick leave rostered days off and was given additional discretionary sick leave. [161] He has since returned to work for 15 years. I accept the Defendant's submission that if anything was going to impact upon his capacity for work it would be his right knee. [162]
5. No proposed assumptions flowing form this injury based on the evidence were submitted by the Plaintiff who conceded that could only be a modest buffer could be awarded in any event. On the evidence I am satisfied that the Plaintiff's most likely future circumstances will be that he continues in his current employment. The fact that he was given additional sick leave at his employer's discretion and is able to have assistance on occasion lifting heavier items indicates that that he has been accommodated in his employment position. His absence of treatment indicates and ability to continue in his employment for an extended period without incurring loss of income persuades me that he has adjusted to his circumstances and I see no reason that this is not likely to continue. Overall, I do not find any evidence that the Plaintiff's ongoing disabilities will be productive of economic loss into the future. In the circumstances I decline to award any amount in this respect.
6. In summary, the Plaintiff's damages are as follows: HEAD OF DAMAGE AMOUNT AWARDED Non-economic loss $60,500 Past out of pocket expenses (agreed) $ 6,927 Past economic loss (agreed) $18,270 TOTAL $85,697

ORDERS

1. For these reasons I order: 1. Verdict and judgment for the Plaintiff in the sum of $85,697; 2. Subject to any notification to my Associate within 14 days to re-list the matter for any further or other order as to costs, the Defendant is to pay the Plaintiff's costs; and 3. The Exhibits are to be retained for 28 days.

Endnotes

1. T 12.1 - .25
2. T 12.29 - .39
3. T 12.45 - .46
4. T 12.48 - .49
5. Exhibit B
6. T 13.1 - .22
7. T 13.28 - .31
8. T 13.33 - .35
9. T 14.14 - .41
10. T 14.49 - 15.1
11. T 15.3 - .8
12. T 15.10 - .14
13. T 15.28 - .32
14. T 15.34 - .38
15. T 15.43 - .47
16. T 15.49 - .50
17. T 16.2 - .3
18. T 16.9 - .10
19. T 16.17 - .21
20. T 16.23 - .24
21. T 16.26 - .29
22. T 16.31 - .35
23. T 16.37 - .41
24. T 17.31 - .33
25. T 16.46 - .48
26. T 17.4 - .6
27. T 17.8 - .10
28. T 17.12 - .13
29. T 17.15 - .19
30. T 17.21 - .23
31. T 17.48 - 18.1
32. T 18.8 - .9
33. T 18.14 - .17
34. T 18.19 - .27
35. T 18.29 - .33
36. T 18.35 - .38
37. T 18.40 - .44
38. T 18.46 - .50
39. T 19.2 - .3
40. T 19.8 - .10
41. T 19.12 - .20
42. T 19.22 - .23
43. T 19.30 - .39
44. T 25.39 - .44
45. T 33.35 - .50
46. T 34.7 - .10
47. T 38.18 - .21
48. T 38.23 - .25
49. T 38.40 - .44
50. T 39.22 - .25
51. T 39.27 - .30
52. T 39.32 - .35
53. T 40.18 - .21
54. T 41.7 - .8
55. T 43.1 - .9
56. T 43.11 - .12
57. T 44.29 - .31
58. T 45.25 - .27
59. T 45.33 - .48
60. T 46.11 - .14
61. T 46.16 - .19
62. T 46.21 - .22
63. T 46.24 - .26
64. T 47.14 - .16
65. T 47.43 - .46
66. T 48.6 - .9
67. T 48.11 - .13
68. T 48.18 - .21
69. T 48.23 - .28
70. T 48.30 - .34
71. T 53.28 - .42
72. T 54.29 - .31
73. T 54.19 - .22
74. T 55.3 - .6
75. T 55.8 - .10
76. T 58.37 - .39
77. T 58.41 - .44
78. Exhibit 1
79. Exhibit 1
80. Exhibit 1
81. T 128.45 - .50
82. T 6.41 - .42
83. Exhibit 2
84. Exhibit 2
85. T 4.39 - 5.4
86. T 117.34 - 118.41
87. T 118.27 - .30
88. [2016] NSWCA 264 at [11] - [15] (Macfarlan JA with whom Beazley P and Leeming JA agreed)
89. [2006] NSWSC 776 at [22] (Harrison AsJ)
90. T 137.37 - .44
91. T 138.19 - .26
92. T 138.28 - .29
93. T 138.31 - .40
94. T 7.37 - .42
95. (1959) 101 CLR 298, 320
96. T 72.9 - .34
97. T 102.28 and T 138.22 - .26
98. (1959) 101 CLR 298, 320
99. T 117.38 - .40
100. See: Smith v New South Wales Bar Association (1992) 176 CLR 256; [1992] HCA 36 at [32] (Brennan, Dawson, Toohey and Gaudron JJ); and Colin R Price & Associates v Four Oaks Pty Ltd [2017] FCAFC 75 at [168] (Rares, Murphy and Davies JJ)
101. T 125.1 - .46
102. Exhibit 2
103. (2000) 49 NSWLR 262; [2000] NSWCA 29 at [84] - [88] (Spigelman CJ)
104. [2014] NSWCA 424 at [2] (McColl JA) and [30] (Macfarlan JA with whom Sackville AJA agreed)
105. Fuller-Lyons v State of New South Wales [2015] HCA 31
106. [2014] HCA 52 at [89] - [90] (Gageler J)
107. T 113.40 - .44
108. [2004] NSWCA 123
109. (2000) 199 CLR 620; [2000] HCA 3
110. [2004] NSWCA 123 at [57] - [59] (Campbell J with whom Beazley JA and Pearlman AJA agreed)
111. T 17.4 - .6
112. Exhibit F and Exhibit 1
113. T 17.8 - .10
114. (2009) 239 CLR 420; [2009] HCA 48
115. (2009) 239 CLR 420; [2009] HCA 48 at [25] - [26]
116. (2007) 69 NSWLR 1; [2007] NSWCA 28
117. (2007) 69 NSWLR 1; [2007] NSWCA 28 at [24] (Basten JA with whom Santow and Bryson JJA agreed)
118. (2007) 69 NSWLR 1; [2007] NSWCA 28 at [28] (Basten JA with whom Santow and Bryson JJA agreed)
119. (1988) 20 FCR 91, 99 (Davies, Kelly and Neaves JJ)
120. T 85.30 - 33
121. Hereinafter referred to as the "2002 Act"
122. [2015] NSWCA 320 at [100] - [122] (Leeming JA with whom Basten JA and Simpson JJA agreed)
123. T 131.35 - 37 and T 132.3 - .4
124. T 90.37
125. Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4 at [44] (McHugh J)
126. See: Lewis v Clifton & Ors [2011] NSWDC 79 at [107] - [108] (Elkaim DCJ). This decision was appealed: Clifton & Ors v Lewis [2012] NSWCA 229, however the appeal was only against the quantum of the award of damages in respect of non-economic loss and future economic loss. His Honour's findings on liability were not disturbed
127. Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4 at [153] - [155] (Gummow J)
128. T 115.35 - .41 and T 116.42 - .46
129. T 116.46 - .48
130. Chapman v Hearse (1961) 106 CLR 112; [1961] HCA 46 at [6] - [7] (Dixon J); see also: T 116.17 - .21
131. T 118.46 - 119.11
132. T 100.15 - .50 and T 103.13
133. s 5D of the 2002 Act. See also: ACN 087 528 774 P/L (formerly Connex Trains Melbourne P/L) v Chetcuti [2008] VSCA 274 at [16] (Hargrave AJA with whom Ashley and Dodds-Streeton JJA agreed)
134. T 119.13 - .23
135. [1985] HCA 34 at [10]
136. [2015] NSWCA 128 at [20] (Macfarlan JA with whom Gleeson JA and Sackville AJA agreed)
137. [2014] NSWCA 458 at [29] (Macfarlan JA with whom Leeming JA agreed and Adamson J agreed on this point)
138. T 119.25 - .38
139. T 56.7 - .17
140. s 5R(2)(b) of the 2002 Act
141. T 19.1 - .16
142. Exhibit A
143. T 21.6 - .11
144. Exhibit D, Letter from Dr Roderick Kuo to Dr Justin Healey dated 19 September 2013
145. Exhibit A
146. Exhibit A
147. Exhibit A
148. Exhibit A
149. Exhibit D, Supplementary Report of Dr Peter Conrad dated 4 May 2016
150. Exhibit D, Psychiatric Report of Dr Thomas Oldtree Clark dated 12 October 2016 at pp 4 and 6
151. Exhibit D, Report of Dr Peter Conrad dated 19 April 2016
152. T 22.6 - .10
153. T 22.26 - .43
154. T 22.12 - .16
155. T 22.18 - .20
156. T 22.22 - .24
157. T 49.7 - .9
158. Exhibit D, Psychiatric Report of Dr Thomas Oldtree Clark dated 12 October 2016 at p 4
159. T 133.17 - .29
160. T 123.36 - .42
161. T 53.14 - .19
162. T 121.45 - 122.2 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 November 2017