Caftor Pty Ltd t/as Mooseheads Bar & Caf� v Kook [2007] ACTCA 19

Caftor Pty Ltd t/as Mooseheads Bar & Caf� v Kook [2007] ACTCA 19 - ACTCA 2007 case summary — Zoe

[32]

26. The appellant called Mr Carl Shaw, who provided a very different account of the incident. Mr Shaw had been head of security at Mooseheads at the time. He said that that on the night of the accident there had been about sixty customers upstairs and about fifteen to twenty had been on the dance floor. At about 4.00 am he saw two men on the dance floor. He thought that they were obviously friends. They were apparently having a good time, with a little bit of pushing and shoving but no real aggression. He was keeping an eye on them to make sure that their behaviour did not get out of hand when he saw one of them leave the dance floor and return with a drink in his hand. Mr Shaw was about to get up and tell him to take the glass off the dance floor when the other man approached the man with the glass, grasped him under the armpits and picked him up. Mr Shaw explained that the men were facing each other and, as he was picked up, the man with the drink wrapped his legs around the other man's waist in a scissor movement. The other man then released him and he fell backwards. He put out the hand holding the glass to stop himself but the glass shattered when it hit the floor and cut his hand. Mr Shaw said that he was about two or three metres from them and that he immediately went to the man on the floor to see how badly he was injured. He went to get a tea towel to try to stop the bleeding and when he returned saw that the man, whom he identified in evidence as the respondent, was sitting on the floor and that a girl was looking after him. Mr Shaw claimed that he had inspected the wound cursorily and placed the towel on it as a pressure bandage. He then left the girl to keep pressure on the wound and asked another member of the staff to ring an ambulance. He then went back to the respondent and the girl, and walked downstairs with them. He got a chair for the respondent to sit on while waiting for the ambulance. Mr Shaw said that he made a handwritten report of the incident in an incident report book but that it had been destroyed in a subsequent fire at Mooseheads.

[35]

53. I should say at the outset that I formed the impression that all of the witnesses who gave oral evidence answered the questions addressed to them honestly and to the best of their recollection. At first blush it might appear that the Court is confronted by two starkly opposed versions of the incident in which the plaintiff was injured, and that one of those versions must be true and the other false. Where witnesses give their evidence confidently, and will not concede in cross-examination that they may be mistaken about some aspects of their evidence, one can gain the impression that the evidence on one side must be true and on the other must be deliberately fabricated. It does not seem to me that this is the proper analysis in this case.

54. There are grounds for casting doubt on the evidence supporting both versions. In relation to the plaintiff's version, it can be said that he had had a lot to drink on the night, and that this must have affected his faculties at the time and his subsequent recollection of events. The same can be said, though to a lesser extent, of his companions. Additionally, one can point to factual differences between their accounts.

55. As to the latter, it would be surprising if their accounts tallied in every respect, as to events some three and a half years earlier: indeed, absolute consistency of accounts often causes suspicion that there has been a degree of reconstruction and collaboration. Although the plaintiff and his friends admitted to having discussed the incident amongst themselves at various times, the discrepancies go some way to persuading me that the evidence of each represents a personal recollection rather than some kind of partnership effort to tell a story calculated to assist the plaintiff's case. Whilst I must accept that the plaintiff and his friends were intoxicated to varying degrees at the time of the incident, I accept that the evidence of each of them conveys a genuine recollection of what happened.

56. It is a matter of great regret that, because of the fire, the Court does not have the benefit of the incident report completed by Mr Shaw on the night of the accident. It is common knowledge that memory can play tricks on one. We have all had the experience of remembering, apparently with precision, some incident or place, only to be later satisfied that the memory is in some major respect inaccurate. I have no doubt that Mr Shaw at some time saw an incident of the kind he described, where a customer picked another customer up and effectively dropped him to the floor. It may have been on the same night as the plaintiff's accident, or on some other night. But the memory is uncorroborated, other than indirectly by Ms Miladinovic, and is quite inconsistent with the memory of the plaintiff and his friends. Mr Shaw's version was put to each of them in cross-examination and they each denied it categorically. I have no doubt that it was a genuine memory for Mr Shaw subjectively, but, without intending any disrespect to him, I prefer the evidence of the plaintiff and his friends on that issue.

57. I accept that Mr Shaw made a note about the accident in the incident report book, and that Ms Miladinovic read the note the next day. She conceded that she did not look at it again before the book was destroyed in the fire. I cannot be satisfied that her recollection of what she read on that occasion is accurate. Mr Shaw is a truthful and reliable man and I would expect that she would be motivated to accept a statement from him in preference to statements from the plaintiff and his friends. After all, the plaintiff is claiming damages from her company and has much to gain if his story is accepted, whereas Mr Shaw no longer works for the company and, as he said in the witness box, has nothing to lose or gain from the outcome of the case. Hence it would be human nature for her recollection of what she read in the incident book to be coloured by her opinion as to Mr Shaw's reliability. In the absence of the incident report book, her evidence as to her recollection of an entry which she read once, three and a half years before she gave her evidence, is not enough to cause me to prefer Mr Shaw's evidence to that of the plaintiff and his friends.

58. There is one further matter which causes me to prefer the plaintiff's version to that of Mr Shaw. According to Mr Shaw, the plaintiff had just left the dance floor to get a drink, and was walking back on to the floor with his drink when the incident occurred. Mr Shaw has the plaintiff picked up by his friend into the air, then falling to the dance floor with the glass in his hand, the glass breaking on impact with the floor and cutting the plaintiff's hand. The plaintiff's uncontradicted evidence was that he was drinking schooners of beer all night. If Mr Shaw's version is correct, as the plaintiff fell he must have spilt the contents (about 400 to 450 ml) all over himself and the floor. One would have thought that such a spillage of beer would have been a significant feature of the fall and of an eyewitness's recollection of it. Mr Shaw mentioned nothing about a spillage of liquid and I had the impression from his evidence that his recollection was of an empty glass in the plaintiff's hand.

59. For those reasons I accept that the plaintiff's accident happened generally in the way he described in his evidence. I accept that he was bumped from behind by someone on the dance floor, causing him to lose his balance and fall. I think it more likely than not that his evidence, and that of Ms Blewitt, are correct to the extent that he did not have a glass in his hand at the time, but that his hand came into contact with an empty glass already on the floor as he fell.

[38]

31. It was also argued that the Master fell into error by assuming that factual differences between the accounts given by these witnesses "established" that each had a genuine recollection of the relevant events. We are unable to see anything in the reasons for judgment that suggests such an assumption. The Master said only that the discrepancies went "some way" to persuading him that the evidence of each was founded upon personal recollection of the events rather than the adoption of a jointly formulated story calculated to assist the respondent's case. This seems to have been an entirely reasonable response to the contention that the discussions amongst the respondent and his witnesses may have influenced their evidence and produced some conformity as to the essential allegations. However, counsel for the appellant went further, suggesting that the accounts that they had given had been "staggeringly discordant" and that the Master should have realised that their memories had been so clouded by alcohol as to be unreliable. In fact, whilst there had been potentially significant discrepancies, the respondent, Mr Miers and Ms Blewitt described the actual fall in terms that were mutually compatible. Furthermore, the Master was clearly conscious of the discrepancies in relation to other aspects of their accounts and there is no reason to doubt that he gave them due weight. It was obviously necessary for the Master to take the inconsistencies into account. However, they essentially related to things that occurred in the aftermath of the accident when the respondent was presumably in pain due to the injury and his friends may have been preoccupied by concern about his condition. It would by then have been after 4.00 am and they would have been tired. The respondent and Mr Miers may also have been affected to varying degrees by the alcohol they had earlier consumed. It is not uncommon for witnesses to differ, even substantially, in their recollection of events that preceded or followed an accident even though they seem to have clear memories of that accident itself. A trial judge must, of course, assess the potential significance of any such discrepancies in the context of the evidence as a whole and we see no reason to suppose that the Master fell into error in doing so.

[45]

37. There was ample evidence from the respondent and his witnesses as to the state of the dance floor when they attended on earlier occasions. The respondent said that it had not been uncommon to encounter empty bottles or glasses on the dance floor and that people would move them, sometimes with their feet, towards the sides. On previous occasions he had noticed that the floor was not only wet but also crunchy because of broken glass underfoot, and he had sometimes later found glass fragments in the tread of his shoes. Mr Miers said that there had always been glasses on the dance floor. People just put them down where they were standing when they finished their drink. He had accidentally kicked glasses while dancing and had seen other people do the same. He also recalled finding glass fragments in the soles of his shoes after a night at Mooseheads. He said that he had regularly taken bottles and glasses onto the dance floor at Mooseheads and that he had also put his glass down on the floor, particularly if there had been no room on the nearby shelf or tables. The floor had always been sticky. Ms Blewitt said that she had previously had seen glasses, empty and full, around the dance floor, including broken glasses. They were cleared every ten or fifteen minutes by bar staff. Customers would kick glasses occasionally. There had been no signs prohibiting the taking of glasses onto the dance floor and she had regularly done so. Her friends had sometimes taken a jug onto the dance floor and filled their glasses from it but she had never been asked to remove either a jug or glass from the floor. She had seen people spill drinks on the dance floor and had done so herself. The dance floor was always sticky. Mr Miller had made similar observations. He had seen glasses and broken glass on the dance floor and he had often gone home with glass fragments in the soles of his shoes. He had also taken glasses on to the dance floor. There had seen no sign prohibiting drinks on to the dance floor but on rare occasions he had been told by a staff member to take his glass from it.

[64]

54. A number of objections to this proposition were raised in argument but none were persuasive. First it was objected that the signs would not have been read in the dimmed light of the nightclub. We accept that visibility would have been limited in the area adjacent to the dance floor where the dimness of the lighting may have been relieved only by alternating strobe lights but there were means of making the signs legible. They could have been affixed to the front door of the club, prominently displayed at the foot of the stairs and, as Ms Miladinovic effectively conceded, a notice could have been put on the talking board. Second, it was objected that the appellant had previously erected notices but found them ineffective. Despite this experience, Mr Shaw, the appellant's former head of security, accepted that signs would have been desirable. There was no evidence as to the prominence of the earlier signs and, in any event, they apparently lacked any specific reference to the dance floor or any suggestion that the prohibition would be enforced. We also note that Ms Miladinovic did not dismiss the potential utility of a notice on the talking board but, on the contrary, said that she had since asked herself why she had not thought of doing so. We see no reason to doubt that the incidence of glass on the dance floor would have diminished substantially had anyone who disregarded such a sign been summarily ejected from the premises. Third, it was objected that this proposition had not been raised at the trial of the action. This is simply incorrect. Much of the respondent's case was based upon the appellant's failure to provide signs to the effect that glasses were not permitted on the dance floor. Furthermore, it was expressly put to Mr Shaw that it would have been a good idea to have had a sign that read " People who take glass on the dance floor will be ejected". It is true that the cross-examiner did not ask a further question explicitly suggesting that the sanction of ejecting those who acted in contravention of the prohibition should have been implemented rather than remaining an empty threat, but that was, we think, an obvious corollary of the suggested words on the proposed sign. Furthermore, at one point, Ms Miladinovic volunteered the fact that she had previously considered not only ejecting but banning repeat offenders from returning to the club for stipulated periods.

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Cases Cited (10)