[2009] HCA 48
Proprietors of Strata Plan 17226 v Drakulic [2002] NSWCA 381
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
[1987] HCA 7
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
Source
Original judgment source is linked above.
Catchwords
[1959] HCA 8
Modbury Triangle v Anzil (2000) 205 CLR 254[2000] HCA 61
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420[2009] HCA 48
Proprietors of Strata Plan 17226 v Drakulic [2002] NSWCA 381
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479[1987] HCA 7
Vozza v Tooth & Co Ltd (1964) 112 CLR 316[1964] HCA 29
Neill v NSW Fresh Food and Ice Pty Ltd (1963) 108 CLR 362[1963] HCA 4
Swain v Waverley Municipal Council (2004) 220 CLR 517[2005] HCA 4
Rankin v Gosford City Council [2015] NSWCA 249
Astley v Austrust Ltd (1999) 197 CLR 1
Judgment (23 paragraphs)
[1]
NATURE OF PLAINTIFF CASE
The plaintiff claims personal injury damages. The plaintiff was assaulted by a third party on 14 December 2016, during his attendance at Fairfield Leisure Centre (the Centre), being a swim Centre operated by the defendant. He suffered facial swelling extending down to the neck on the left side, loss of teeth, disruption of his mandible causing difficulty and discomfort when opening and closing his mouth and a fractured left thumb caused by its impact with the ground when he fell during the assault. The plaintiff claims also for aggravation of his pre-existing mental health ailments which include depression and anxiety.
The plaintiff frames his case on occupiers liability for negligence, breach of contract, conduct that was misleading and deceptive in breach of sections 18, 33 and 34 of Schedule 2 of the Competition and Consumer Act 2010 (Cth) (ACL), failure to provide the services of the Centre with due care and skill in breach of section 60 ACL, and failure to provide safe swimming pool premises fit for the purpose in breach of section 61 ACL. Except during opening and closing, little was said concerning the actions pursuant to the provisions of the ACL. Principally the case was run in negligence.
The defendant complained that the plaintiff case opened, was not pleaded. The plaintiff had opened on accepting his burden to prove a special relationship in order for there to be a duty of care owed by the defendant. By consent, the plaintiff supplemented its pleading by adding particulars of his claim of special relationship, in the three-page handwritten document identified as Addendum 2 to the Statement of Claim.
The plaintiff adopted the Chronology exhibit H, as accurate. The plaintiff court bundle also included: exhibit E containing medicolegal reports of the plaintiff's treating psychiatrist Dr Benjamin dated 8 August 2018, oral maxillofacial surgeon Dr Bowler dated 2 August 2018 and a medicolegal report of orthopaedist Dr Giblin dated 8 October 2018; exhibit F containing post-event clinical notes; and exhibit G which contained documents of the defendants protocols and policies and police documents relevant to the incident. Defendant Exhibit 1 was voluminous and included mainly medical clinical notes commencing 2006. Exhibit 1 also contained the medicolegal reports of orthopaedist Dr F J Harvey, dated 13 March 2019 and of Psychiatrist Dr Leonard Lee, dated 18 April 2019.
Only the specific parts of the exhibits contained within the plaintiff court bundle and defendant Exhibit 1 to which the court's attention was directed were admitted into evidence. These reasons do not address other parts of that literature.
[2]
INCIDENT
At a time of day which the plaintiff does not precisely recall (T p 25 line 20) he attended the Fairfield Leisure Centre ("Centre"). Police records in exhibit G include the COPS event record which times the event at 12:30 PM on 14 December 2016. It is common evidence that the plaintiff spoke to the police.
Because the plaintiff relies on the defendant protocols which refer to availability of security services after 1pm, it is of limited significance that the evidence does not support finding that the assault occurred after 1 pm. Those services were not available.
The plaintiff travelled to the Centre by motor vehicle with his friend Mr Eddie Giorgis (for efficiency and without meaning any discourtesy to Mr Giorgis, I will refer to him by his first name "Eddie"). It was a hot day. They arrived in the car park to the Centre and walked to the turnstiles where they paid the entry fee. The plaintiff was provided with a blue card on payment (exhibit A). He was also given an entry ticket. On entry they were asked to provide personal identification and the plaintiff's photograph was taken. From the entry counter the plaintiff and Eddie walked through gates, past the indoor pool to the outdoor pool area. Exhibits B and C are aerial photographs of the Centre. Plainly there was a partially sun-shade covered, large grassed area beside the outdoor pool and more grassed area at the back of the pool, the opposite end from the building complex. External to the building complex and at a different angle there was a children's play pool area. The evidence described a gymnasium also being within the building complex. The plaintiff had previously visited the Centre on a few occasions.
After entering the outside pool area the plaintiff and Eddie initially sat at the place marked X on exhibit B. The plaintiff described that place as "a grassy hill": T p 27 line 20. After about 5 to 10 minutes the plaintiff decided to enter the outside pool for a swim. He did so by using the stairs at the location O marked on exhibit B [Note: In fact the plaintiff mistakenly wrote X on Exhibit B. The stairs are also identified at C on Exhibit C]. When he was about 5 metres away from the stairs he observed a group of about 8-10 young men who were doing bombs and putting each other on shoulders and doing back flips into the pool. The plaintiff estimated there would have been "well over 150 people" in the pool (T p 27 line 49) and that the Centre was "packed" with people including families, children and there was a school carnival in operation: T p 28 line 01 to line 19.
After a couple of minutes of his entering the pool the plaintiff observed the lifeguard attend the young men and say to them "This is the last warning or you all will be out.": T p 28 line 50 to p 29 line 20: The lifeguard was wearing a blue and yellow uniform and he had a whistle. At the time this warning was given, the young men were in the pool on both the left and right sides of the plaintiff. He lifted his hand to get the lifeguard's attention and told the lifeguard words to the effect "Mate, I'm not with them". The lifeguard acknowledged his statement by a nod of his head and left the scene.
The interaction between the group of young men and the lifeguard was an opportunity for the lifeguard to observe their behaviour. The plaintiff did not himself perceive any risk of violence from the behaviour of the young men at that time. His evidence during cross-examination was as follows:
"Q. Because he had done nothing to that point to indicate to you that he might punch you in the face?
A. Well, they were mocking me beforehand, so they were, in a way, they were trying to annoy me."
In the absence of the lifeguard, the young men mocked him by saying to each other, "I am not with them" and laughing to each other. The plaintiff said that he ignored them and started to leave the pool. As he was climbing up the stairs to exit the pool one of the young men said to him "Yeah, get out dick head". The plaintiff looked back at him. The young man said "What?". The plaintiff said that he was annoyed by what had already happened but that he just shrugged. The young man repeated "What?". The plaintiff then said to him "the reason the lifeguard told you to stop doing whatever you're doing is for your own safety. If you have no respect, just get out."
At that time the young man came out of the water and up close to the plaintiff. The plaintiff described his demeanour as "into my face and wanting to fight". This occurred right next to the stairs to the pool. The plaintiff described his interpretation of the young man's conduct as "wanting to fight". He described the distance between the young man's face and his own as 8cm to 10 cm. The young man then said to the plaintiff "do you want, what, do you want to have a go or something? The plaintiff described the young man's manner as aggressive and rude. The young man and the plaintiff were at position marked D on exhibit C: Transcript p 27 to p 30. [Note: during oral evidence the plaintiff was asked to mark positions on both Exhibits B and C]
At this point Eddie moved from where he had been sitting on the grass into proximity with the plaintiff and the young man. On Eddie taking that position the other young men left the pool and surrounded the plaintiff and Eddie on the pool deck at position marked D on exhibit C: T p 36 line 09. The plaintiff described the conduct of the assailant and the other young men as "saying all sorts of things, swearing, wanting to fight". He said the things which they said included "come outside" or "let's go here" (T p 36 line 30 to line 40) but nowhere in his evidence did he in greater detail describe their mannerisms or how loudly they were talking. This occurred approximately mid-length of the 50 meter outdoor pool and therefore in excess of 25 m from the building of the Centre which housed the indoor pool. The plaintiff could not see the lifeguard and did not know where he was: T p 37 line 09. There is no evidence to suggest that the lifeguard was in a position to see or hear the spoken altercation beside the pool. There is no evidence of touching or of violence such as pushing or shoving. There is no evidence of shouting.
Eddie encouraged the plaintiff to leave. They proceeded to walk in the direction of the entrance/exit of the Centre; that is, they walked from approximately the midpoint beside the 50 meter outside pool (marked D on exhibit C) toward the Centre building which housed the indoor pool.
The plaintiff's description of the conduct of the group of young men in that passage of walking was:
"Q. As they were following you, can you recall what, if anything, they were saying or doing?
A. Just being idiots, swearing to me, and some of them wanted me to let's go outside, and some of them wanted to fight right there, "fuck you", and all other things, I don't know."
When the plaintiff and Eddie had reached a point (marked E on Exhibit C) almost to the corner of the outdoor swimming pool closest to the Centre building, a distance of close to 25 m from where the spoken altercation commenced, the lifeguard came out of the Centre building and informed the plaintiff and Eddie "the police have been called": T p 37 line 20 to line 29. The lifeguard was then standing at position marked A on Exhibit C.
It is reasonable to assume that the lifeguard saw the group of young men beyond the plaintiff and Eddie; but there is no evidence of whether or not he observed the plaintiff and Eddie being followed by the group of young men as they walked toward the Centre building. Even had he done so, what he would have observed was not any act of violence. The group of young men saw the lifeguard speak to the plaintiff and Eddie. There is no direct evidence that the assailant and the other young men heard the words the lifeguard spoke when he notified the plaintiff and Eddie that he had called the police. It is not to be inferred on the evidence that they heard what had been said. Nowhere in the evidence is it suggested that the lifeguard raised his voice as if to communicate that message to anyone other than the plaintiff and Eddie. The assailant and the other young men were at the time about 2 to 3 metres behind the plaintiff; that is in a direction away from the lifeguard. The circumstances were that the area was packed with families and children and at least 150 people were playing in the swimming pool. The evidence infers that it was a noisy environment.
At this point, the group of young men stopped following the plaintiff and Eddie and walked to the back of the swimming pool area to the place marked G on exhibit C: T p 38 line 14. The evidence does not permit determination of whether or not they ceased following the plaintiff and Eddie and took that course because they saw the lifeguard who had spoken to them earlier of a final warning that they would "be out", breach of which could result in him taking further action and possibly evicting them from the Centre. As observed, the evidence does not permit determination of whether or not they took that course because they heard that police had been called. Indeed that one of them subsequently assaulted the plaintiff is some evidence against such an inference. Mere sight of the lifeguard speaking to the plaintiff and Eddie as they were walking away from the pool and in the direction of the exit, may have caused them to retreat. They were aware that they had been given a final warning and may have wanted to avoid coming further to notice of the lifeguard. They did not at that point attempt to leave the Centre and it was after that time that one of them, being the assailant, attacked the plaintiff.
This point in time is of significance in the determination of the question of liability in this case because in closing submissions the plaintiff identified this as the point in the sequence of events when breach occurred by the lifeguard failing to have:
1. ascertained the risk of assault or battery of the plaintiff; and
2. taken the reasonable response of asking the group of young men to leave the premises: T p 220 line 01 to p 220 line 30.
There is no evidence of violence preceding this point in time. There is no evidence of, for instance, touching, pushing or shoving. There is no evidence that the group of young men were impeding the course of walking of the plaintiff and Eddie toward the Centre building. They were following. In cross-examination the plaintiff said that it took only seconds for he and Eddie to walk the distance from the place of the oral altercation, marked 'D' on exhibit C and the point where the lifeguard spoke to him of the police having been called at plaintiff position 'E' and lifeguard position 'A' on exhibit C.
The lifeguard did not give evidence and therefore there is no evidence of what he did observe after speaking the warning to the group of young men in the pool.
The omission to call the lifeguard as a witness cannot properly be treated as filling any gap which the evidence adduced for the plaintiff left untouched. But, any inference favourable to the plaintiff for which there was ground in the evidence, might be more easily drawn because the lifeguard, being a person presumably able to put the true complexion of the facts relied on as the ground for the inference, has not been called as a witness by the defendant. The defence does not claim that the lifeguard was unavailable to give evidence: Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 per Kitto J at [5]. The defendant did not submit, nor in my opinion could it have reasonably done, that the plaintiff ought have called any of the young men of the group which included the assailant.
The plaintiff submits that on the whole of the evidence including in particular, of what the lifeguard did observe of the group of young men in the pool and then his appearance at position A to tell the plaintiff and Eddy at position E on Exhibit C that he had called the police; there is evidence from which, in the absence of the evidence of the lifeguard, it can confidently be inferred that the lifeguard had observed conduct of the group of young men after his speaking to them the final warning including the words "you'll be out" when they were in the pool, and that he was aware that the risk of imminent violence was high. The plaintiff case is that, in those circumstances, the defendant owed the plaintiff a duty of care to immediately direct the group of young men to leave.
When examining this submission, speculation or choice between guesses is not a proper basis for the drawing of inferences where the possibilities are not unlimited: Jones v Dunkel supra per Dixon CJ at [2].
There is no evidence of when the lifeguard called police, That he called police is not of itself sufficient positive evidence upon which to infer that he did so because observations he had made caused him to think there was an imminent risk of violence being perpetrated between the young men, or any of them and the plaintiff and Eddie. My reasoning to this conclusion appears below under sub-heading: "CONSIDERATION - LIABILITY"
The plaintiff gave the following evidence of what happened after the lifeguard spoke to he and Eddie and the group of young men walked approximately 50m away to the grassed area at the back of the pool (place marked G on exhibit C)(T p 38 line 21 to line 37):
"Q. What happened then?
A. When the lifeguard told me the police was called, they walked back, and we were close to where we were going to go, maybe about five or ten metres away from there, so we sat there, I don't know, maybe about five, ten metres
Q. Why didn't you leave?
A. I mean, when the lifeguard came and told us that the police was called, I thought the police would be there very soon, so I wasn't, I was scared at the beginning, but then I didn't feel scared then I knew the police was coming. And when they walked back, we sat down, like not far from where the exit, and maybe about five to ten minutes later, the same person walked from all the way back there, the back of the pool, towards me again, got into my face again, and he came. He didn't look like he wanted to fight, or he wasn't showing aggression, he was, he looked like he wanted to talk. And he came up to me and he said, "What's this about?" What's going on?" I don't know, something like that. Before I could reply to him, he just punched me right in my mouth, and I fell back."
During cross-examination the plaintiff said that he was able to observe the assailant as he walked toward him for about half the distance between the group of young men at the place marked G on exhibit C and where the plaintiff and Eddie were seated at the place marked F on exhibit C. Using the 50 metre outdoor pool as a guide, that distance was probably in excess of 25 metres. In other words, the plaintiff's opportunity to observe the approach of the young man was not brief.
This passage of evidence, that the plaintiff was not scared for a period of 5 to 10 minutes whilst he remained seated on the grass and then whilst he observed the young man, who eventually assaulted him, walk toward him; in my opinion is significant because the plaintiff did not perceive imminent violence. On any view of the evidence his exposure to the group of young men including the assailant was superior to the lifeguard's opportunity to observe the group. He considered whatever risk of harm he perceived, to have been diffused by the lifeguard's action of speaking to he and Eddie in view of the group of young men.
The assailant punched the left side of the plaintiff's face, in the vicinity of his mandible, using a closed right hand fist. The plaintiff fell back and then he tried to get up but was tackled to the ground again and then the assailant attacked Eddie. At about that time the group of young men who had been with the assailant joined in the attack. Like the assailant they came from the location marked G on exhibit C, at the back of the pool. The plaintiff broke his thumb when he fell to the ground, the assault broke two of his teeth and he suffered bruises to his neck and back particularly but also all over his body. When the assault on the plaintiff and Eddie finished the group of young men ran to the back of the Centre and exited by jumping over the exterior fence. About five minutes later police arrived.
There is no evidence that the lifeguard witnessed anything after the time when he spoke to the plaintiff to tell him that police had been called: T p 39 line 30 to 35; p 40 line 25; p 40 line 42 to line 50.
Eddie gave evidence with the assistance of an Assyrian interpreter. He is a relative of the plaintiff's wife and he is a friend of the plaintiff. Eddie's recollection of the course of events did not mirror that given by the plaintiff and in at least two significant respects was different. I will identify those inconsistencies briefly only. This is because it was not put during closing submissions by either party that the version of events given by Eddie should be preferred to that recounted by the plaintiff. In response to my enquiry, counsel for the plaintiff confirmed that the plaintiff did not rely on the evidence of Eddie: T p 207 line 30. The plaintiff's position stated in closing submissions was that "No positive alternative to [the version of events given in the evidence of the plaintiff]… Was put by the defendant": T p 207 line 29 to 34.
Starting from the point at which the plaintiff entered the outdoor swimming pool, Eddie was not with him but was sitting on the grass slope. Eddie's recollection of seeing the group of young men jumping and tumbling into the water does mirror the description of their behaviour given by the plaintiff prior to the arrival of the lifeguard to speak with them: T p 93 line 45 to p 94 line 04. It is from this point, that Eddie's version of the course of events differed from that given by the plaintiff. Whereas the plaintiff said that the lifeguard spoke to the young men in the pool and the plaintiff exited the pool alone; Eddie said that the lifeguard spoke to the young men in the pool and got them out of the pool to speak to them beside the pool: T p 95. 43; 101; 15-20. Eddie's evidence did not contain what was said between any of the individuals at that point. He said that after the plaintiff was with the young men and the lifeguard beside the pool the plaintiff came across to him and Eddie said to the plaintiff that they should leave because they didn't want "any problems". This occurred whilst the lifeguard was still speaking to the group of young men. Eddie's recount did not include the young men surrounding him and the plaintiff beside the pool or of the young men following them and orally abusing them as they walked toward the Centre building with the intention of exiting the Centre. His recollection is that at the point the lifeguard stopped speaking to them beside the pool the group of young men "went to their place" on the grass on the right side of the pool: T p 94 line 25. Of obvious significance, Eddie did not recount at all the event of the lifeguard informing the plaintiff and himself that the police had been called whilst they were walking toward the Centre buildings with the intention of exiting. In his evidence there was no presence of the lifeguard between his speaking to the group of young men in and beside the pool and his attending the plaintiff and Eddie after they were assaulted. It was Eddie's evidence that it was at that attendance after the assault that the lifeguard informed them that the police had been called: T p 96 line 10.
I prefer the evidence of events given by the plaintiff to that given by Eddie for the purposes of determination of this case. Both the plaintiff and Eddie were witnesses of truth. The plaintiff was not a good historian. He frankly conceded that he does not have a good memory. Yet Eddie's evidence was less detailed than that of the plaintiff. Eddie appeared to be a witness doing his best to provide an honest description of events which in reality lacked the detail of evidence as might be expected to be given by a witness of clear recollection. There was no reference made during his evidence to his having provided a statement or otherwise a record of the event in the 2 ½ years since it occurred. The plaintiff had provided a statement to the police although it was not adopted during his oral evidence and was not tendered. In addition to these considerations, I bear in mind that Eddie's evidence is devoid of an explanation for the change of course taken when he and the plaintiff walked toward the Centre building with the intention of exiting the Centre but instead went to sit on the grass and remain at the Centre. The plaintiff's description of that change of plan occurring when the lifeguard informed him that the police had been called at point E on exhibit C is plausible. I repeat it was the version of events adopted by Counsel for the plaintiff during closing arguments. I put this element of Eddie's evidence to Senior Counsel for the defendant and received the response that the defendant did not submit Eddie's evidence to be inconsistent with the version given by the plaintiff in this regard: T p 168 line 19 to line 26. I accept the version of events given by the plaintiff and that the question of liability is to be determined on his evidence.
[3]
SPECIAL RELATIONSHIP
During opening counsel for the plaintiff referred the court to paragraphs [112], [117] and [118] of the decision of Hayne J in Modbury Triangle v Anzil (2000) 205 CLR 254; [2000] HCA 61 and conceded that the plaintiff must prove a special relationship in order to establish that the defendant, as occupier of the Centre, owed the plaintiff a duty of care: T p 4 line 30 to line 42. The plaintiff case was put on the basis that "the defendant is in control of the circumstances, in control of the situation where the assault occurred, and further where the occupier has failed to control the continued presence [of the assailant] on the premises": T p 10 line 45 to p 11 line 4. At [111] Hayne J said in Modbury:
"The occupier of land has power to control who enters and remains on the land and has power to control the state or condition of the land. It is these powers of control which establish the relationship between occupier and entrant 'which of itself suffices to give rise to a duty ... to take reasonable care to avoid a foreseeable risk of injury' (authority cited) to the entrant. It is the existence of these powers which lies behind both the particular conclusion in (authority cited) that occupiers of land owe a duty to take reasonable care in respect of fire or other hazards originating on the land and general statements, of the kind made by Lord Nicholls of Birkenhead in his dissenting speech in (authority cited), that '[t]he right to occupy can reasonably be regarded as carrying obligations as well as rights'."
In Modbury, the High Court held that the duty of care of the shopping centre land owner, as occupier, did not extend to preventing physical injury to the shop worker resulting from the criminal behaviour of third parties in the car park in the circumstances of the lighting having been turned off at night. At [112], Hayne J applied his above statement of principle to the facts of that case, finding:
"[the shopping centre owner] did not control what happened to[the shop worker]. It is not enough to say that the[shopping centre owner] had power to act in a way that may have made the occurrence less likely (by leaving the lights on). That is doing no more than restating, in other words, a conclusion about foresight or, perhaps, causation. The conduct which caused the [shop worker's] injuries was deliberate criminal wrongdoing. By its very nature that conduct is unpredictable and irrational. It occurs despite society devoting its resources to deterring and preventing it through the work of police forces and the punishment of those offenders who are caught. That is, such conduct occurs despite the efforts of society as a whole to prevent it. Yet [the shopworker's] contention is that a particular member of that society should be held liable for not preventing it."
At [117], the paragraph to which the plaintiff most centrally referred, his Honour observed that established principles of common law provide for no duty to control the criminal conduct of others "except in very restricted circumstances, being an occupier of land should not be added to those exceptional cases, at least where the complaint that is made by the plaintiff is not about the occupier failing to control access or continued presence on the premises." As observed, the plaintiff accepted that in this case its obligation, in order to succeed, was to prove that special relationship between plaintiff and defendant arising from the defendant's power to control the circumstances in which the assault occurred and power to control the continued presence of the assailant within the Centre.
I drew the plaintiff's attention to his Honour's qualification concerning consideration of those "very restricted circumstances" at the end of paragraph [117]. His Honour reserved for consideration in another case determination of duty of care presented by a complainant arising from the occupiers ability to control the continued presence of the assailant on the premises. Further, he joined with the Chief Justice in leaving open for consideration the approach in cases where the occupier has a high degree of certainty that harm will follow from lack of action: at [116]. The Chief Justice at [30] said:
"There may be circumstances in which, not only is there a foreseeable risk of harm from criminal conduct by a third party, but, in addition, the criminal conduct is attended to by a high degree of foreseeability, and predictability, that it is possible to argue that the case would be taken out of the operation of the general principle and the law may impose a duty to take reasonable steps to prevent it."
Control of continued presence of the assailant at the Centre and the degree to which the defendant knew or ought to have known that harm would follow from lack of action are thus identified as considerations in the determination of the issue of duty of care in this case.
Before leaving this point, it is appropriate to observe the High Court's more recent elucidation of Modbury principles in Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 at [23] to [25], to which I directed Counsel. At [23] the Court clearly stated the importance of recognising that the duty alleged in Modbury was said to be founded only on the defendant's position as occupier of the land controlling the physical state of the land (the level of lighting in the car park). At [24] the Court emphasised "the fact that the conduct in question is criminal conduct is of great importance in deciding not only what, if any, duty is owed to prevent its commission, but also questions of breach and causation." Unlike in Adeels Palace, the defendant here was not operating the Centre under obligation of statutory duties associated with minimisation of harm arising from misuse and abuse of liquor, violence and other antisocial behaviour.
[4]
EXHIBIT G: DEFENDANT PROTOCOLS AND PROCEDURES - CONTROL
The plaintiff did not rely on alternative operational procedures to those of the defendant or submit that the defendant protocols and procedures were defective. The plaintiff relied on the defendant's documented protocols and procedures relating to operation of the Centre in order to establish the existence of a duty of care, the scope of any duty of care owed and breach of duty of care pursuant to the provisions of section 5B Civil Liability Act 2002 (NSW). Management of patrons by lifeguards and utilisation of police services was not a matter of common sense and had the plaintiff submitted alternative protocols; then the plaintiff would have required evidence supporting the point: Vozza v Tooth & Co Ltd (1964) 112 CLR 316; [1964] HCA 29 per Windeyer J at 321-322; Neill v NSW Fresh Food and Ice Pty Ltd (1963) 108 CLR 362; [1963] HCA 4 at 369-370; Swain v Waverley Municipal Council (2004) 220 CLR 517; [2005] HCA 4 at [14]-[17] per Chief Justice and at [40] per McHugh J.
The plaintiff's argument was that the documents proved foreseeability of the risk of criminal assault, the power to control the risk of that behaviour and the reasonable response to the risk of harm.
The plaintiff took the court to the following documentary evidence within exhibit G which limited entries, according to my ruling for admission of evidence, compose that evidence:
[5]
Risk Assessment/ Process Task Analysis (last reviewed 16 March 2016)
At page 44 passages relating to "Dealing with a difficult aggressive customer" and "Calling Security or Senior staff": It is to be noted that on the facts of this case none of the hazards for which responses are there identified, were proved. There is no evidence that the lifeguard was aware of threats to any person, or physical violence to any person prior to the assault; as would be required on the plaintiff case, at or before the time when the plaintiff and Eddie reached the point marked E on exhibit C and were informed by the lifeguard that police had been called.
On the facts of this case, none of the triggers identified in this document for the lifeguard to have requested the group of young men or any of them to leave occurred. The evidence does not prove that the lifeguard ought have been aware that any of the group of young men had become uncontrollable. The document makes plain that the lifeguard was "never to touch" an offending customer.
[6]
Notice of Terms and Conditions of Entry
At page 45 the Notice of Terms and Conditions of Entry included agreement of the defendant's right to refuse entry to any person and to remove any person who engaged in "disruptive or disorderly conduct including, but not limited to: any conduct which adversely impacts on the other Patrons or damages property; verbally or physically threatening staff or other person; swearing aloud; and gaining or attempting to gain unauthorised and/or wrongful access". As will be seen, the defendant's protocols and procedures provided for "minor breaches" into which the offending behaviour of the group of young men, which was observed by the lifeguard, fell. Taking the protocol and procedure documentation as a whole, the conduct of jumping into the pool, tumbling and bombing did not warrant the lifeguard to contemplate eviction from the Centre unless it continued after the final warning given as the end of a "three strikes you're out" practice. There was no evidence that it did. Even then the lifeguard was to exercise his judgment as to what action to take: see below, the protocol was to consider advising of the possibility of eviction for repeated disobedience of "minor breach" warnings.
[7]
Quality Management - Pool Surveillance and Lifeguarding
At pages 46-48 and 54-55, this document provided that the lifeguards were required to hold qualifications in pool safety and first-aid and their primary function was identified as accident prevention. Their primary concern was identified as, supervision, safety and well-being of patrons in, and around the vicinity of the water. Lifeguards were required to not stand in any one place for too long; but rather to keep moving around to ensure full coverage of the pool water, especially in peak times. During periods of high patronage, such as in this case, a minimum of two lifeguards were to be on duty. There is no evidence that less than two lifeguards were on duty at the Centre. The plaintiff did not submit inadequate provision of lifeguards.
At page 58, the defendant's pool admission policy included payment of an entry fee and provision of photo identification for patrons of 13 years and older, and the creation of a customer file with photo attached on the issue of a pool patron card. It will be recalled that the plaintiff was issued a small blue card, exhibit A.
At pages 60-65 entitled "Dealing with Difficult Customers" the procedure for dealing with aggressive or angry patrons or where violence seemed to be imminent, required lifeguards to trust their instincts and exercise their individual judgement and never to put themselves at risk when speaking to the troublesome patron. The lifeguard was never to touch that patron. Specifically, in circumstances of a patron behaving aggressively the lifeguard was to stay in public view and call management or police if necessary except where violence seemed to be imminent or offered, in which case the lifesaver was to call police or security guards. In all of those circumstances the terms and conditions of entry permitted expulsion of the troublesome patron.
The lifeguard observed only bombing, jumping and tumbling into the pool. The page 62 "minor breaches" procedure was applicable. The lifeguard was required to inform the group of young men that they could remain but if they failed to curb the behaviour they would face the possibility of expulsion. The policy and procedure adopted a "Three strikes and you're out" approach. It will be recalled that the lifesaver gave the group of young men a warning on account of their jumping, tumbling, and bombing into the pool. On the evidence the group of young men had not re-entered the pool or continued that conduct. They had not failed to comply with the pool behaviour warning.
Page 62 then sets out the eviction procedure. In the event that the behaviour of the young men had satisfied a trigger for eviction (there is no evidence of the lifeguard having observed such behaviour preceding the assault). In such event, the lifeguard was to obtain video footage for identification of the troublesome patrons for staff and for police and to complete an Incident Report. In the event of the patron refusing to leave following the lifeguards eviction direction (at page 63) the lifeguard was to advise the patron that further action may be taken including calling the police.
[8]
Other Internal Defendant Documents
Pages 66-68, 70-75 and 79 contain various internal documents of the defendant. On 31 August 2010 it was recorded that at leisure centres "We currently have a large element of patrons who are disruptive, aggressive and threatening to staff and other customers, they also cause vandalism in change rooms, car parks and other areas, attempt to enter the premises illegally (i.e. over the fence)".
These documents show that a policy was adopted by the defendant in response to those risks commencing six years prior to the subject incident. The purpose of creation of Incident Reports was described as for liaison between staff and police in circumstances where the incident required action above the giving of a warning. The expressed endeavour was to work within the resources of the defendant and the police so as to best identify "Hot spots" (T p 71) to assist in the most efficient direction of resources. Again, the job prescription of lifeguard was predominantly supervision of pool safety and first responder services for the provision of medical aid, albeit monitoring security of Centres was included. The lifeguard's key responsibilities, listed at page 73, all described pool and aquatics safety.
[9]
Leisure Centres Standard Operating Procedure dated 29 October 2018
Pages 76-85: Obviously this document postdates the subject incident by approximately two years. Page 79 of the document identifies the normal start time for security guards as 1 PM.
[10]
CONSIDERATION - LIABILITY
By Statement of Claim filed 28 May 2018 the plaintiff sues the defendant as occupier with "responsibility for the care, control and management" of the Centre: [2]. At [8] to [12] the plaintiff identified the relevant risk of harm as him being assaulted, battered and trespassed upon by one or more perpetrators, being a risk of harm which the defendant knew or ought to have known, which risk of harm was not insignificant for the purposes of s 5B CLA. In addition, the plaintiff pleads that his presence at the Centre was pursuant to a contract between him and the defendant, for reward pursuant to which the defendant would provide swimming pool services with due care and skill and provide a safe and secure environment so as to avoid foreseeable risk of injury which was not insignificant including the protection of the plaintiff from harm perpetrated by other patrons of the pool; which contract the defendant is said to have breached by the same acts and omissions described in the particulars of negligence.
The plaintiff alleges breach of representations implied by law, pursuant to the provisions of ss 18,33, and 34 ACL and breach of ss 60 and 61 ACL for failure to provide goods and services with due care and skill and fit for purpose. Putting aside the typographical error of reference to particulars of breach of contract pleaded in paragraph 18 of the Statement of Claim, which particulars are in fact pleaded in paragraph 21; each of those breaches of representation and failure to provide goods and services are identified with the particulars of negligence pleaded in paragraph 17 and indeed the case was run in the style of a suit in negligence.
The single omission which the plaintiff, in closing the case, submitted to be the breach basing all causes of action pleaded, was that the lifeguard did not instruct the group of young men to leave the Centre at the point when the plaintiff and Eddie were at position E on Exhibit C. To establish a standard of care, the plaintiff relied on the defendant's documents in exhibit G, the essential submission was that those documents established that the defendant since at least 2010 had foreseen the risk of exactly what happened to the plaintiff and proved that the defendant had the requisite control of a special relationship, extending the occupier duty of care to include protection of the plaintiff from that risk of harm.
By its Defence filed 31 August 2000, the defendant pleaded broad denial of the plaintiff case. In the running of the case the defendant conceded that it was the occupier of and responsible for the care, control and management of the Centre, including the swimming pool and its surrounds. The defendant conceded the plaintiff's injury to his thumb and to his lip but maintained that the beating was in issue. I accept the plaintiff evidence that he was beaten. There is no evidence to the contrary of that fact or that he received injuries of a fractured thumb, loss of teeth, damaged lip, bruising and temporary exacerbation of his pre-existing psychiatric and psychological state.
The defendant submitted that the fatal flaw in the plaintiff case was that the statement of claim incorporating the addendum did not plead what amounts to a special relationship and or should it be found on the evidence that a special relationship existed; then a special relationship which would attract the duty of care to protect the plaintiff from the criminal assault by a third party. The defendant did not dispute foreseeability of assault of a patron by another patron; but rather submitted that foreseeability alone is not sufficient to attract a duty of care. It put that to attract a duty of care to protect against the criminal conduct of a third-party, the level of foreseeability must be high.
In particular the defendant submitted that the evidence did not support a finding that the lifeguard or the defendant ought to have known of the risk of assault which occurred in this case. The defendant correctly put that there was for instance no evidence of the assailant's propensity for violence.
The defendant put that the conduct of the assailant on the day was not such that when he walked toward the plaintiff immediately before the assault, the plaintiff felt threatened.
Obviously, if a duty of care be found, the next question will be whether or not the action taken by the lifeguard was a reasonable response in the circumstances, applying s 5B CLA. The defendant puts that the evidence does not support a different view; that is, that the reasonable person in the lifeguard's position would not have apprehended the risk of the violence which eventuated. The defendant put that there is no evidence prior to the assault, and it is appropriate to add prior to the time of the plaintiff and Eddie reaching position E on Exhibit C when the lifeguard informed the plaintiff that police had been called, indicating that the assailant would likely or even might physically assault the plaintiff. In this way the defendant submitted that the plaintiff failed to establish that the defendant knew or ought to have known of the significant risk of harm in response to which a reasonable response required eviction of the assailant or the group of young men.
When at the opening of the plaintiff case the defendant challenged the absence of pleading of a special relationship giving rise to the duty of care; Statement of Claim paragraphs [4] to [6] were amended, by consent with addition of the following Addendum particulars:
"the plaintiff was in the 50 meter pool.
A lifeguard came over to the edge of the 50 meter pool and said words to the effect: "this is the last time or you all will be out".
The plaintiff began to exit the pool.
As the plaintiff was exiting the pool one of the young man said to the plaintiff words to the following effect: "yeah get out dick head".
One of the young men exited the pool following the plaintiff.
The young man approached the plaintiff and stood very close to the plaintiff in a threatening manner.
The young man said to the plaintiff words to the effect: "what, do you want to have a go".
The young man threatened to fight the plaintiff. The companion of the plaintiff joined the plaintiff. The other young men who were in the pool in the company of the young man, got out of the pool, approached the plaintiff and his companion and behaved in a manner threatening of the plaintiff and his companion.
The plaintiff and his companion started to leave the premises.
As the plaintiff was leaving he was followed by a group of the same young men that were in the pool, and the young man that threatened the plaintiff.
As the plaintiff was leaving he was being abused verbally by the same group of young men.
As the plaintiff was leaving the lifeguard said to him and his companion words to the following effect: "police have been called".
The plaintiff and his companion decided to remain on the premises.
The group of young men walked to the back area of the 50 meter pool.
The same young man that threatened the plaintiff, that followed the plaintiff in the group abusing the plaintiff, approached the plaintiff and his companion.
As the young man walked up to the plaintiff he said: "what is this about and what is going on".
Before the plaintiff could reply, the young man struck the plaintiff in his face with a clenched fist.
The young man and his companions assaulted and battered the plaintiff.
At no stage did the plaintiff hear or observe the lifeguard direct the young man to leave the premises.
There were no security guards on the premises at the relevant time.
The defendant knew or ought to have known that violence occurs on the premises as violence has occurred previously on the premises."
During oral opening the plaintiff identified the alleged breach of duty which the plaintiff sought to prove as "allowing perpetrators to remain at the pool, the failure to provide security guards where the condition of harm exists": T p 10 line 48 to line 50. The particulars of negligence pleaded [17] included the following:
1. Putting the Plaintiff in a position of peril in the circumstances;
2. Exposing the Plaintiff to a risk of injury, which could have been avoided by reasonable care on its part;
3. Failing to protect the health, fitness and well-being of the Plaintiff;
4. Failing to evict the perpetrators from the pool;
5. Failing to take reasonable care to hinder or prevent criminal conduct of third parties;
6. Failing to provide a safe recreational area;
7. Failing to provide a security guard;
8. Failing to provide a recreational area that was free of hazards;
9. Failing to monitor a situation of escalating conflict and potential violence;
10. Failing to intervene to prevent harm to the plaintiff.
I observe at this point:
1. the Addendum and the evidence is that the lifeguard warned the group of young men that if their pool behaviour continued they "will be out" which is available to mean out of the pool and not more likely in those circumstances to mean evicted from the Centre. The plaintiff volunteered in cross examination that the lifeguard did not warn them that they would have to leave but rather that they would "be out". His evidence was (T p 66 line 39 to line 40):
"Q. About if he didn't stop bombing, he would have to leave, until‑‑
A. He didn't tell him to leave. He told them to ‑ they would be out."
1. The Addendum particulars did not plead that the lifeguard told the group of young men that police had been called and I have found that the evidence does not support finding that they heard that information; and
2. Counsel for the plaintiff conceded that the only behaviour of the group of young men of which there was direct evidence of the lifeguard's observation was the "minor breach" behaviour: T p 209 line 01 to line 14.
In closing oral submissions I invited the plaintiff to identify the evidence which was positive toward drawing the reasonable inference that the lifeguard saw the group of young men threatening the plaintiff: T p 210 line 05. The plaintiff referred to the lifeguard speaking the "final warning" to the young men whilst they were in the pool.
The evidence identifies only the "minor breach" (see earlier discussion of defendant protocols) behaviour of jumping, tumbling and bombing to that point.
The plaintiff added "There is then the exchange between and the threatening behaviour by the boys towards [the plaintiff].": T p 210 line 15.
There was no direct evidence the lifeguard heard or saw that. There is no direct evidence that the lifeguard was inattentive in his supervision of the pool area.
There being no direct evidence of what the lifeguard perceived after the bombing and tumbling behaviour whilst the young men and the plaintiff were in the pool, I asked the plaintiff to identify from the evidence what should be reasonably found by inference of what the lifeguard observed after he walked back to the Centre building housing the indoor pool area. To this enquiry, counsel for the plaintiff properly conceded: "Well we don't know where he's walked"… "We don't know what he would have seen.": T p 210, line 15 to line 45.
The plaintiff submitted that the behaviour of the group of young men escalated between when the lifeguard walked toward the Centre building following his speaking to the young men in the pool and when he informed the plaintiff that the police had been called.
I then enquired of what, if anything, the lifeguard calling the police inferred: T p 211 line 15. The plaintiff responded that it inferred that the "lifeguard saw an escalation of behaviour such that it warranted him calling the police. He didn't go to a third warning which he could. He didn't go and ask them to leave….": T p 211 lines 16-20.
At that point the plaintiff identified the escalation of behaviour which it said, by his calling the police should reasonably be inferred the lifesaver observed; as, the group surrounding Eddie and the plaintiff beside the pool and then following them. That passage of closing submissions was:
"HIS HONOUR: Why is there an inconsistency between this is your last warning or you're out and having called police. What does that infer that's relevant for this case?
GOODCHILD: That the lifeguard saw an escalation of behaviour such that it warranted him calling the police. He didn't go to a third warning which he could. He didn't go and ask them to leave‑‑
HIS HONOUR: What do you mean he didn't go to a third warning? How do we know how many warnings he'd given? We only know he's given one warning, and he said this is your last warning or you're out but he might have spoken to them several times, their behaviour might have been changing
GOODCHILD: Exactly we don't know.
HIS HONOUR: He might ‑ and you see that begs the question that I went to before. What's the escalation of behaviour?
GOODCHILD: What is the escalation?
HIS HONOUR: Yes. What's the escalation of behaviour? There are two parts to it. Why is it more likely than not that the lifeguard calling the police is a response to indications of violence, that's one question. The second question is and it's very closely related. What's the quality of behaviour, you're referring to [as] an escalation. [We] can't deal with this with hindsight. Prospectively on the evidence, what is the evidence which ought have at the time indicated to the lifesaver that he should do something. Now you're tying him, saying "he called the police", to as if he foresaw a risk of actual violence aren't you? That's what you're saying is the inference that arises from it? Or am I misunderstanding you?
GOODCHILD: Well I don't know what he foresaw because we don't have any evidence from the defendant and as your Honour says we can only draw reasonable inferences from the evidence that's available but at some point he gave the fellows a warning in the pool and in fairly short compass after that when meeting Mr Sawa and Eddy and the group behind and the evidence is that this group were shouting obscenities and being threatening, fairly close to that he rings the police. Now it's my respectful submission your Honour that it is not an unreasonable inference to draw that it is something about that behaviour that has prompted the lifeguard to contact the police. Because he then goes and says to Eddy and Mr Sawa, and they rely upon his what can I suggest is an assurance provided by him‑‑
HIS HONOUR: What behaviour do you say it would be reasonable to infer he saw that caused him to call police?
GOODCHILD: The behaviour when Mr Sawa got out of the pool and the gentleman got out after him. The disagreement that occurred then, then the other young men getting out of the pool, that's when Eddy comes down, and the evidence is that they were somewhat surrounded by these gentlemen, these young boys, and the behaviour was threatening. And then they move from point D to point A, and the evidence is that they were being followed by this group of men, young men, and that group of young men were being threatening and abusive to them. It is reasonable to infer it's my respectful submission your Honour that when the at the point then when the [lifeguard] meets them at point A that it is some of that behaviour that has prompted him to call the police.
HIS HONOUR: All right. Now you're relying on these protocols. Page 63 at number 3, "If the offenders refuse to leave then the following points should be explained to them." Now there's evidence that they'd refused to leave is there?
GOODCHILD: No there's no evidence they were asked to leave.
HIS HONOUR: Thank you.
GOODCHILD: That's the issue your Honour, they weren't asked to leave.
(T p 211 line 13 to p 212 line 33)
The inferences for which the plaintiff argued are to be viewed as more readily acceptable because the lifeguard was not called to give evidence; but, one cannot speculate as to what the lifeguard's evidence might have been had he been called and the failure to call him cannot be used to fill gaps in the evidence. Because he was not called to give evidence to the contrary, the plaintiff's arguments should be viewed with the benefit of the assumption that the normal compliment of two lifeguards were present at the Centre, that they kept moving throughout the various precincts of the Centre indoor and outdoor and that they maintained as their movement permitted, supervision by observation of the outdoor pool area, most significantly on the safety of persons swimming. The defendant's protocol documentation is evidence of those standard practices and procedures for lifeguards. There is also the uncontested evidence that the lifeguard issued a warning or they would be "out" if their behaviour continued, he having observed the group of young men jumping, tumbling and bombing in the pool. That they had attracted his attention in that way is evidence positive of the inference that the lifeguard would have directed attention to their manner of behaviour in regard to the safety of persons in the pool. On the balance of probabilities, the lifeguard would for that reason have paid the group of young men more attention than other patrons but that inference does not extend to a special attention of their behaviour once they were out of the pool. There can be no doubt that part of the lifeguard's duty was observing patron behaviour in and out of the pool areas.
In the absence of evidence of what the lifeguard did perceive, possible scenarios include, at least, the following:
1. A first scenario is, having given the group of young men the final warning when they were in the pool as to their in pool behaviour and prior to what plaintiff counsel referred to as the "escalation" of their behaviour toward the plaintiff and Eddie, the lifeguard had determined that he would call police and invite an officer to attend the Centre so that upon his asking the young men to leave the pool or the Centre, he would do so with the display of additional authority which the accompanying police officer would provide. There were about 8-10 high spirited young men in that group. By having issued a "last" pool warning to them, it is reasonably to be inferred that they had been non-compliant with his earlier exercise of authority instructing them to correct their pool behaviour. In those circumstances, according to the defendant's protocols and procedures, the lifeguard may have been taking the sensible and precautionary step of attaching to his intended direction to them to leave either the pool or the Centre, the displayed authority of police in the hope of avoiding the risk of his personal confrontation with the group. It is reasonable, as a matter of common sense and according to the defendant's procedural documents, to infer that the lifeguard would have been aware of the importance of avoiding unattractive confrontation, perhaps involving bad language and carrying some possible degree of risk of violence, in the surrounds of the family environment of the Centre;
2. A second scenario is, the lifeguard had perceived some of what counsel for the plaintiff described as "the escalation of behaviour", had interpreted the plaintiff and Eddie walking in the direction to exit whilst being followed by the orally abusing group of young men, as the plaintiff and Eddie choosing to leave because of the behaviour of the young men and for those reasons determined to provide the visible display of his personal authority by approaching the plaintiff and Eddy. In the absence of evidence of violence such as pushing or shoving or even evidence of the group of young men positionally or physically impeding the walking of the plaintiff and Eddie; as for the first scenario, the evidence is not positive of the inference that the lifeguard assessed or ought to have assessed there to be a significant risk of violence. On this scenario, again the lifeguard may have invited the physical display of authority of police if he intended to later speak to the group of young men inviting them to correct their behaviour or risk eviction from the Centre. Again, if the lifeguard perceived swearing and bad behaviour of the young men in the way described, it is reasonable to infer he would have considered that to be abhorrent behaviour in the "minor breach" category, in the presence of surrounding families at the Centre;
3. A third scenario, is that even in the absence of having observed any violence such as by pushing, shoving or positionally or physically impeding the passage of the plaintiff and Eddie, the lifeguard perceived the language and the energy with which the group of young men were abusing the plaintiff and Eddie to be such that there was some risk of violence; and he called police to attend in order to display authority to diffuse the situation in accordance with the defendant protocols and procedures. Again in this scenario the lifeguard may not have determined to evict bur rather to instruct the group of young men to calm down, stop speaking foul and/or threatening language and to stay away from the plaintiff and Eddie;
4. A fourth scenario is that the lifeguard had observed what appeared to be a hostile group following the plaintiff and Eddie around and assessed there to be a moderate risk of violence in response to which he attended the plaintiff and Eddie to display his personal authority pending arrival of police, in accordance with the defendant protocols and procedure to voice either a behavioural correction or an eviction direction after police arrive, and told them that he had called the police;
5. A fifth scenario is, that the lifeguard on account of whatever he had perceived had determined there to be a high risk of imminent violence requiring appropriate eviction of the group of young men and in accordance with the protocols and procedures had called police to accompany him in that action but took the immediate step of approaching the plaintiff and Eddie when the group of young men were 2 to 3 metres away to display authority to discourage violence occurring in the interim; and
6. A sixth scenario is that the lifeguard, having determined to instruct the group of young men to leave on speaking to the plaintiff and Eddie in view of the group of young men, did not voice a direction to leave the Centre because he observed them to retreat away from the plaintiff and Eddie toward the opposite end of the pool.
Quite obviously there are infinite possibilities, partly because the evidence does not prove when the lifeguard called police and therefore we are unable to identify what caused him to do so, or even whether or not his purpose when calling police was to proceed to a behavioural direction, warning or eviction of the group of young men. It is possible that he had called police because of some unrelated matter and when he stepped outside to position A and discovered the plaintiff and Eddie being abused and followed by the high spirited group of 8-10 young men, he immediately responded by personal display of authority and provided the plaintiff and Eddie with the further information that police would be at the Centre soon.
In each of the above scenarios there are two facts which must be accepted:
1. That in the environment of the public at the Centre, there was an ever present and unpredictable risk of criminal behaviour between patrons including the risk of criminal assault and the defendant was aware of that risk at various degrees of possibility of occurring in each of the above possible factual scenarios; and
2. There being no evidence to support the requirement and no submission by the plaintiff that the standard of care to be owed to him by the defendant required the constant presence of security guards; it is not reasonable to assume that the lifeguard could acquire the services of a security guard or of a police officer in the short time between the oral altercation between the plaintiff and the group of young men outside of the pool and the time of the plaintiff and Eddie reaching position E on Exhibit C.
I conclude that the evidence does not satisfy me more probably than not of the inference that when he spoke to the plaintiff and Eddy at position E from his position A on Exhibit C and told them that police had been called, the lifeguard had in fact called police, because he perceived a high risk of imminent violence being perpetrated by the group of young men or any of them upon the plaintiff. There was no evidence of antecedent violent behaviour by the assailant or any member of the group of young men in the knowledge of the lifeguard or of the defendant. The evidence does not support finding of a high level possibility of violence between patrons at the Centre such as was considered by Hayne J in Modbury at [116] and the Chief Justice at [30] which would accompany the special relationship required for there to be a finding that the defendant owed the plaintiff the duty of care to take reasonable precautions to protect him from the criminal assault by another patron. In the narrower incident based focus, the evidence does not support the finding that the lifeguard knew or ought to have known that in the few minutes between the plaintiff exiting the pool and arriving with Eddie at position E on Exhibit C, that the risk of harm consequent of violence between the group of young men or any of them and the plaintiff and Eddie was at a high level or even likely.
In my opinion, the defendant did not owe the plaintiff a duty of care to respond with control against the risk of harm of assault of the plaintiff by one of the group of young men, by direction that they leave the premises.
An important additional consideration which goes both to the question of the lifeguard's perception of risk of imminent harm and therefore the defendant's duty to respond and also to the question of breach arises from the fact that the group of young men retreated. That the group of young men walked away from the plaintiff and Eddie was an event, the character of which, must obviously have diffused any concern for imminent violence. The only evidence describing the interpretation of that event is from the plaintiff. His interpretation was to choose not to exit but to stay at the Centre with Eddie. He was no longer scared. That evidence strongly infers that the lifeguard would have similarly interpreted the retreat of the group. It is on those facts that the plaintiff allegation of breach is to be considered. That allegation being that the lifeguard ought have directed the group of young men to leave when the plaintiff and Eddie were at positon E and the lifeguard at positon A on Exhibit C.
[11]
CONTROL
To this point, I have endeavoured in these reasons to decide the question of duty of care on the bases the parties contested. The plaintiff's assertion that the defendant was responsible for control of criminal conduct by patrons at the Centre deserves further comment.
As these reasons already observe, the defendant Council was not under obligation of statutory duties associated with minimisation of harm in the operation of a nightclub such as were examined on the question of liability in the Adeels Palace Case supra. Here, the defendant Council, it is to be reasonably assumed, was the occupier of a variety of recreational lands and premises. Amongst them would have been parks for which no admission was charged and this Centre, entry to which required payment of a fee, and which Centre provided a variety of recreational precincts including the outside swimming pool.
As the matter commenced, the plaintiff Statement of Claim pleaded a cause of action purely in occupiers liability for condition of the premises. Paragraph 2 provided:
"The Defendant is a Local Government Authority pursuant to the Local Government Act 1993 (NSW) and is the occupier of and responsible for the care, control and management of the Fairfield City Leisure Centre, including the swimming pool and surroundings."
In consequence of the defendant during oral opening submissions identifying that the plaintiff case as pleaded did not describe the special relationship which as recognised in the Modbury Case was required for there to be found a duty of care to protect against the criminal conduct of a third party, the plaintiff amended the Statement of Claim by addition of the Addendum said to provide particulars to paragraphs [4]-[6], which paragraphs pleaded that the plaintiff was assaulted by a patron at the Centre. The case thereafter proceeded on the plaintiff's acknowledgment that he had to establish the special relationship. The plaintiff acknowledged, by reference to the Modbury Case paragraphs earlier set out in these reasons, that control is an essential element to be proved in order to establish a special relationship upon which the defendant Council might owe a duty of care to protect patrons against criminal actions by other patrons, in this case, assault and battery of the plaintiff.
Proprietors of Strata Plan 17226 v Drakulic [2002] NSWCA 381 considered the special relationship and particularly the element of control in circumstances of a claim brought purely upon the basis of occupiers liability of the body corporate for the criminal attack by a third party upon a resident in the foyer of the building in circumstances of the occupier having for an extended period not rectified a defective lock to the door. The allegation in that case was that but for negligent failure to maintain a lockable door, the intruder would not have been in the foyer and this would have avoided attack of the resident. The Court of Appeal decided that the body corporate did not owe that duty of care and that the failure to rectify the lock could not be said to have caused the attack.
What was said by the Chief Justice in the Modbury Case supra at [25] illustrates the substance of and difference between causes of action for pure occupiers liability and the special duty of care which involves protection of a person from the criminal act of a third party. The Chief Justice said:
"The fact that, as occupier of the car park, the appellant had the capacity to decide when, and to what extent, it would be lit at night, does not mean that the appellant assumed a particular responsibility to protect anyone who might lawfully be in the carpark against attack by criminals. The policy adopted by the appellant as to the hour at which the lights went off suggests that the purpose of the lights was to attract customers, rather than deter criminals. Whether or not that is so, there is nothing in the evidence to suggest that the appellant assumed a responsibility which, at least in the case of employees of tenants of the Centre, might ordinarily be expected to be a responsibility of their employers. It was the First Respondent's employer which decided the hour at which the video shop would close, and what, if any, arrangements would be made for the after-hours security of employees. The argument provides an example of what Gummow J in Hill v Van Erp (citation footnoted) described as "[t]he use of the imprecise and beguiling but deceptively simple terms 'known reliance' and 'assumption of responsibility'."
It will be remembered that in Modbury, the plaintiff was a worker employed by a business within the Centre. In this passage the Chief Justice plainly distinguished between the duty of care of the proprietor of the Centre as occupier of the carpark and operator of the lights within the car park on the one hand and the higher duty of care for the plaintiff as its employee of the business proprietor. That is because the employer/employee relationship evokes a duty of care owed by the employer to the employee for the employee's safety. It would have been available to the employer, for instance, to have limited hours of night time work to the hours of operation of the carpark lighting.
In this case, there is no dispute that the terms and conditions of the contract of entry included that the defendant could revoke a patrons right of entry and direct them to leave the premises in the event of disorderly or disruptive conduct including bad language. It is not necessary to repeat that those terms and conditions were not inconsistent with performance of the defendant's protocols and procedures. I have found that the lifeguard fulfilled performance of those protocols and procedures.
The lifeguard's duties were pool safety which would obviously include physical contact with patrons in the event of rescue and the provision of first aid but the procedures and protocols forbade the lifeguard engaging in physical contact with problematic patrons. The procedures compelled the lifeguard to employ personal judgement with how to deal with customers according to the situations which might arise and to avoid confrontation. In the event that the lifeguard sensed the display of further authority than his own presence was required in order to contain a situation, such as might arise when attempting to evict a group of highly energised, disruptive and possibly rebellious young men, he was to display physical authority with police upon their arrival.
Nothing in the terms and conditions of entry nor in the defendant's protocols and procedures suggests that the defendant's lifeguards were to personally deter and control criminals. There is nothing in the evidence to suggest that the defendant assumed a responsibility equal to those rare categories of responsibility for criminal conduct of others spoken of in the Modbury Case supra and to which I will come.
The perspective of responsibility of the defendant as a Council, not explored by the parties and which requires mention is as observed by the Chief Justice in Modbury and quoted by Heydon JA (as he then was) in Proprietors of Strata Plan 17226 v Drakulic [2002] NSWCA 381 at [117]:
"What is the difference between saying that a council that owns and controls a public park is bound to take care that people do not trip and break their legs and saying that the council is bound to take reasonable care that people walking through the park do not get hit over the head with a baseball bat?"
The answer is that in the second instance the harm is caused by crime. The real issue is not whether there is an aspect of the physical condition of the premises complained of, but of what type of harm that physical condition might have caused or averted."
At [74]-[82], Heydon JA discussed the concepts of the relevant control element of the special relationship sought to be proved by the plaintiff in this case. His Honour referred to the issues of "control in fact" and the "right to control". In this case, the defendant did not have in fact control of criminals and nothing contained in the terms and conditions of entry or in its protocols and procedures is evidence that it did. Further, the defendant lacked the right of control over the assailant because it was not in a relationship of control with patrons equal to or like in those recognised categories of a parent maintaining control over a young child or a corrections authority maintaining control of prisoners. It is, with respect to the plaintiff's argument, immediately apparent that the defendant did not have that right of control such as would prevent the attack. Again, the parties did not explore the extent of the suggested duty of care in that regard. It would include protection of all patrons from all criminal activity including, for instance, physical violence and theft. The plaintiff's case suggests a very onerous burden of duty of care indeed.
This brings me to s 42 CLA which was not referred to by the parties and which was enacted after the events the subject of the decision in the Drakulic case. That provision provides that when determining whether or not the defendant as a public authority had a duty of care or has breached a duty of care in proceedings for civil liability, its general allocation of resources is not to be challenged: s 42(b); the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate): s 42(c); and that the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of its proper exercise of its functions in the matter to which the proceedings relate: s 42(d).
In this case, the protocols and procedures are evidence that the defendant Council since 2010 had considered allocation of resources and in that course established a liaison with police in order to best allocate joint resources toward control of criminal activity. Nothing in that development of protocols and procedures is evidence that Council accepted responsibility for control of criminal activity. To the opposite, it is evidence that control of criminal activity remained with police. The broad range of Council's activities would involve the whole of its operation of parks and recreational centres at least and therefore the suggestion that Council accepted control of criminal activity so as to protect users of its facilities is exceptionally onerous. Finally, I have found that the defendant Council through its lifeguard did comply with the general procedures and applicable standards for the exercise of its functions in this case.
In conclusion, the evidence in this case falls well short of establishing the defendant Council had the necessary control of patrons required for the plaintiff to establish the duty of care alleged. The plaintiff cannot succeed in establishing the relevant duty of care, in my opinion.
[12]
BREACH - NEGLIGENCE AND CONTRACT
I have found that the defendant did not owe a common law duty of care to protect the plaintiff from the criminal conduct of the assailant. My reasons to this point recognise that the terms and conditions of entry, upon which the plaintiff relies for his claim in contract, did not prescribe a different standard of care. The particulars of breach of contract and of the pleaded provisions of the CLA are identical to those of negligence.
Applying the principles of s 5B(1) CLA:
1. It was not contested that the unpredictable risk of criminal behaviour between patrons including violent assault by one patron upon another which in this case involved the plaintiff, was foreseeable;
2. The risk of harm from violent assault was plainly not insignificant; and
3. Whether or not, in the circumstances, a reasonable defendant in the position of the defendant through its lifeguard failed to take precautions is the contested issue.
Firstly, my reasons to this point find that a reasonable defendant "in the position" of the defendant Council was not required to take the precaution of directing the group of young men to leave. That is a full defence to the allegation of breach: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7.
Before proceeding to determination of whether or not the precaution of directing the group of young men to leave, which is proposed by the plaintiff, was reasonable pursuant to s 5B(2) CLA; the starting point is to remember that the plaintiff case was not based upon an allegation or evidence that the defendant's terms and conditions of entry or its protocols and procedures were inadequate.
Rather, the plaintiff case was that the failure of the lifeguard to instruct the group of young men to leave the Centre at the time the lifeguard standing at position A spoke to Eddie and the plaintiff who were at position E on Exhibit C, was not reasonable in the circumstances. Employing s 5B(2), I have found that the evidence only proves on the balance of probabilities that the lifeguard witnessed the group of young men at the time they were jumping, bombing and tumbling in the pool and that none of that behaviour gave cause to reasonably expect that violence of any character occurring was a significant possibility. I have found that the lifeguard did not observe any act of violence against the plaintiff or Eddie prior to them reaching position E on Exhibit C. The evidence of that behaviour seen by the lifeguard did not include anything suggestive of violence to follow. Accordingly, at the time the lifeguard spoke to the plaintiff and Eddie at position E, the probability that the harm would occur was minimal, the seriousness of harm by violent assault was not likely. His was a response in full compliance with the protocols and procedures appropriately to be applied in that scenario. For those reasons, on the evidence as I find it, the defendant did not breach its duty of care. It was not negligent.
Further, it follows that I find that the defendant's compliance with its protocols and procedures means that the plaintiff must also fail in its case for breach of contract.
I expand on this point to add that the terms of admission and therefore power of control over the continuing presence of problematic patrons is properly put by the plaintiff as a central factor relevant to assessment of the defendant's power of control over the assailant in the determination of whether or not the defendant owed a duty to the plaintiff and if so, the scope or content of that duty and eventually whether or not it breached that duty: Modbury Supra at [17]; Adeels Palace Supra at [25]; Rankin v Gosford City Council [2015] NSWCA 249; Astley v Austrust Ltd (1999) 197 CLR 1; [1999] HCA 6 at [44]-[48].
In my preceding reasons, the power to evict patrons has been found. It was not disputed. The contractual description of conduct entitling the defendant to remove patrons is not materially different to the triggers for eviction described in the protocols and procedures. Whilst it might be said that the groups' behaviour would fit within the contractual descriptive of disruptive or disorderly conduct which adversely impacted on other patrons, nothing contained in the terms and conditions of the contract obliged the defendant to evict for that conduct rather than, as the lifeguard did do, firstly provide a warning and follow the protocols.
For this reason, again, the plaintiff has failed to establish breach.
It is appropriate to add two further observations in relation to breach, each of which is in the defendant's favour:
1. If it be assumed the lifeguard had witnessed some physical confrontation such as pushing or pulling (and there is no evidence that that did occur) then the groups' behaviour might have required a reasonable response to risk of imminent violence. Assume that response was eviction. In that scenario, the lifeguard alone was not to engage in physical contact with the group. The defendant protocols and procedures sensibly prohibited that. The correct response for the lifeguard was to call and ask the police to attend. He had done. What this means is that in the end the lifeguard called police which action was consistent with his seeking to have support for display of authority, when dealing with a group of 8-10 young energetic and perhaps rebellious young men. In the interim he personally displayed authority when he appeared at position A to speak to the plaintiff and Eddie at position E in view of the group .This was consistent with the reasonable response, according to the protocols and procedures, for an imminent risk of criminal assault.
2. That the group moved away when the lifeguard spoke to the plaintiff and Eddie at position E on Exhibit C, whether or not the group heard him state that he had called police; means that his action taken of displaying personal authority was successful. The group moved to position G on Exhibit C which was approximately 50 metres from where the lifeguard had spoken. That was a substantial retreat. The only conclusion to draw on that evidence is that the risk of harm had been diffused. That the plaintiff chose to remain at the Centre, and felt safe at position F on Exhibit C is evidence against the proposition that the lifeguard's response was less than reasonable. It was successful.
In closing submissions, counsel for the plaintiff submitted that when the lifeguard informed the plaintiff and Eddie that police had been called, the plaintiff relied upon that information when deciding to stay at the premises: T p 219 line 43 to p 220 line 15. It is not clear that this submission is made as part of the plaintiff case based upon breaches of sections 18, 33 and 34 of the ACL. I perceive that the plaintiff's point was that by informing the plaintiff that police had been called the lifeguard somehow entered into a relationship of responsibility for the plaintiff who was vulnerable because of his reliance. The submission is, with respect, implausible. The representation was accurate and indeed police did arrive within some minutes. The submission ignores that the plaintiff observed the group of young men retreat to a position of more than 50 metres away. The plaintiff made his own election to stay. He was in a position of greater awareness of what had been spoken and done by the group of young men up to that point than the lifeguard could possibly have been. The plaintiff's choice to stay was his own and not a surprising one given that the confrontation was apparently diffused. I reject the submission of liability arising on the basis of the lifeguard telling the plaintiff that police had been called and the plaintiff thereafter remaining within the Centre.
[13]
CAUSATION
Applying the provisions of s 5D(1) CLA, and assuming that a reasonable response required the lifeguard to tell the group of young men to leave, as is the allegation of breach made by the plaintiff; then, in my opinion, that omission was not a necessary condition of the criminal assault which followed, nor was it appropriate for the scope of the defendant's liability to extend to that harm. This is because the confrontation was diffused and the assault followed approximately ten minutes later. Indeed, on the plaintiff's evidence the assault appears to have been a spontaneous action. I say this because the plaintiff described the assailant's walk toward him as not instilling in the plaintiff any concern and the initial approach was enquiry not challenge.
For the plaintiff to succeed on the question of causation, it is not enough to say that if the lifeguard had directed the group of young men to leave, that it may have made the criminal assault less likely: Modbury Case supra, per Hayne J at [112].
That interruption of time of approximately ten minutes and distance of approximately 50 metres means that an omission of the lifeguard to have directed the group of young men to leave cannot be said to be part of a set of conditions or events leading to the assault. In my view, the chain of causation had been broken.
The chain is not completed by the proposition that had the young men been evicted from the premises, the assailant would not have been present to assault the plaintiff. That proposition is entirely speculative and in my opinion no more likely than had the lifeguard voiced a direction of eviction, the young men might have assaulted him or the plaintiff and Eddie then before exiting over the back fence of the Centre. The lifeguard was not yet accompanied by a police officer. He could not, alone, have done anything to prevent the assault.
Further, that interruption of time and distance and the apparent spontaneity of the action of assault mean that it is not appropriate in this case for the scope of the defendant's liability to extend to the harm: See also s 5D(4) CLA.
[14]
ACL Causes of Action
It follows from the above reasons that I find the defendant did not engage in conduct that was misleading and deceptive in breach of ss 18,33 and 34 ACL. The representation as pleaded at Statement of Claim [26] that the Centre would be "safe and free of risk of injury" is in the circumstances of it being a Centre open to the public, a representation which it would be implausible to find. Amongst the members of the public there is always a unpredictable risk of criminal conduct. Even the physical premises could not be entirely safe and free of risk of injury. That the breach in [27] is not better particularised than that the swimming pool premises "were not safe, nor were they risk free" likewise does not plead a relevant breach of representation. In response to Statement of Claim [28] I have found against the proposition that the swimming pool premises were not provided with due care and therefore, a representation to that effect, not otherwise explained in the running of the case, was not breached. For the reasons I have given, the defendant did not fail to provide services of the Centre with due skill and care and therefore did not breach s 60 ACL nor did it breach the warranty under s 61 ACL that it provide "safe swimming pool premises for the purpose for which they were provided" as pleaded in Statement of Claim [32].
I repeat that in each of those allegations for breach of contract and of provisions of the ACL, the particulars of breach are identical to the particulars of negligence.
[15]
CONCLUSION ON LIABILITY
I conclude that the defendant did not owe the duty of care alleged and was not negligent, did not breach the terms and conditions of contract and that the plaintiff has failed in its causes of action under various provisions of the ACL. There will be judgment on liability for the defendant.
[16]
DAMAGES
I now move to consideration of damages which I would have awarded had the plaintiff succeeded on liability.
[17]
Oral Evidence
The plaintiff's case for damages is principally based upon the fracture to his thumb suffered when he fell to the ground during the assault and upon exacerbation of his significant preinjury mental health condition. The plaintiff was not working before the incident and had not worked for 11 years, consequent of his mental illness suffered following the stabbing in February 2006.
The plaintiff was born on 6 September 1982 and migrated from Iraq to Australia as a refugee with his family at age 7, in April 1990. His education commenced with primary school in Iraq and concluded in 1999 at the end of year 10 at Fairfield High School. The plaintiff achieved his Year 10 Certificate.
The plaintiff worked in manual jobs after leaving school.
He receives the Disability Support Pension because of his chronic mental illness.
According to his chronology, as early as 12 June 2003, when he would have been 20 years of age, he attended Dr Kandhar at Fairfield Chase Medical and Dental Centre on referral from Professor O'Sullivan regarding his THC (Cannabis) dependency. On 19 December 2005 the plaintiff attended Dr Knapik, Fairfield Station Medical Centre where he obtained a referral to the Drug and Alcohol Clinic in Liverpool Hospital because of his THC dependency.
The plaintiff suffered a life changing assault on 25 February 2006. He was stabbed in the lower abdomen and received injury to his kidney. His injuries required his admission to Liverpool Hospital for 12 days (25 February 2006 to 9 March 2006). He said that afterward he healed physically but not mentally. He has received mental health focused medical treatment from 5 December 2006 for diagnosed Post Traumatic Stress Disorder, Depressive Disorder and anxiety.
Commencing 16 October 2007 he came under the care of Dr Benjamin, psychiatrist and he has remained under Dr Benjamin's care.
I interpose, that the clinical notes of Dr Benjamin's consultation with the plaintiff on 14 April 2008 record "… was shot in [right] leg". There is no further or other entry of that event or its sequelae. Neither the event nor that clinical note entry was put to the plaintiff during his oral evidence. Dr Benjamin was not called. Dr Benjamin made no reference to it in either of his medicolegal reports, upon which the plaintiff relies. Dr Leonard Lee, psychiatrist, retained by the defendant for these proceedings, included in his report dated 18 April 2019 under the heading in which he discussed the nature and extent of the plaintiff's pre-existing or unrelated psychiatric problems, "I understand that he was previously diagnosed with Posttraumatic Stress Disorder and Major Depressive disorder and has not worked since 2006, that he was apparently shot in the leg in 2008, and is said to have been a heavy cannabis user …". That treating medical practitioners do not create clinical notes with a mind to providing an accurate chronology for the purposes of court proceedings such as these, is an observation well reported: see Elayoubi v Zipser [2008] NSWCA 335 at [86]; Mason v Demasi [2009] NSWCA 227 at [2]; The Nominal Defendant v Cordin [2017] NSWCA 6; and Simoes v Kel Campbell Pty Limited [2018] NSWCA 284 at [15]. Particularly because the plaintiff did not have the opportunity of confirming or rejecting the event of being shot but also because the entry is anomalous to the consistent history concerning the 2006 stabbing event; it is not fair or reasonable, in my opinion, to accept as a fact that the plaintiff was shot in 2008. The report of Dr Lee is to be considered accordingly.
The plaintiff's problems with cannabis consumption caused him to seek detoxification treatment in 2011 and addiction rehabilitation at Nepean Hospital. The plaintiff agrees that he is not a good historian. As he gave his evidence it was apparent that he was not a good historian. On the whole of the evidence, it would appear that he attended cannabis detoxification and addiction rehabilitation sometime on about late October 2010 or more likely early 2011.
During oral evidence the plaintiff described his psychological condition between the stabbing and the subject incident as his having experienced ups and downs because of his depression and anxiety.
Before the subject incident he was able to keep his own house, cook for himself, drive a motor vehicle, perform his own shopping and use a whippersnapper to maintain his garden. His exercise was mainly walking. In these activities, he had no difficulties physically. He described the subject incident as having worsened his pre-existing psychological condition. For instance, he said that it caused his sleep which was not good beforehand to become "worse".
He lives as a single man in a housing commission premises with a small garden which he described as being made up of grass and weeds.
His last relationship with a female partner ended a couple of years after the stabbing. This would have placed that event at about 2008 or 2009. He described the cause of the termination of that relationship as him pushing people away including his partner. He described himself at that time as very ill with constant problems but he said that before the subject incident he was getting a bit better.
His psychological state was investigated in cross examination, some of which was that since the 2006 stabbing:
"Q. You were seeing Dr Benjamin every two months weren't you?
A. Yes sir.
Q. You had chronic severe post‑traumatic stress disorder‑‑
A. I did‑‑
Q. ‑‑in January 2016?
A. I wouldn't call it chronic, chronic, no. I would've been easing from it.
Q. Look, the reason that Dr Benjamin that you sought his assistance was that you were unable to live in a noisy or disruptive area, isn't that right.
A. I had a lot of neighbours with kids and they were making ‑ they were ‑ I mean, I could barely sleep, and they were making a lot of noise. Every time I would sleep for five minutes, I would wake up, and I tried to get a house with like a bit of quiet, but I never got that.
Q. But you‑‑
A. I asked for it, yes. But it didn't happen.
Q. Because your condition in January 2016 was bad, wasn't it?
A. It wasn't that bad, sir. I've been bad, I've had worse days. I've ‑ a few years ago, I was like too ‑ before this, I thought of getting a ‑ look, I could feel very good in this week, and I could feel very bad in the next. I respect what you're saying, and I try to ‑ I know what you're saying, you're right, I do, I have had problems. But I did not have a problem at that time. I was okay. I was going, I was a bit better.
Q. But just‑‑
A. I've had always problems, yes.
Q. But children making noise, they wouldn't be making noise at 1 in the morning, would they?
A. It's very close houses. If they talk inside their house, you will hear them.
Q. But the children that you say were the problem wouldn't have been talking at 1 in the morning, would they?
A. It's ‑ 1 in the morning, I would be awake. Sometimes honestly during most of the night, sir. I would maybe sleep‑‑
Q. This is January 2016, isn't it?
A. No. Are you talking about 2016, now?
Q. January 2016?
A. Not had this problem, not this much.
Q. Your mood‑‑
A. I've had problems, yes.
Q. You mood and emotions, your sleep disturbance, was such in January 2016 that you sought Dr Benjamin's help to enable you to move somewhere else that was less noisy?
A. Yes.
Q. And the sleep disturbance you had from the time of the stabbing, hadn't you?
A. Yep, right after that. Yep.
Q. And it continued right up to the time of this assault at the pool, didn't it?
A. Not after this medication. Not after this started, medication started working property, but I do still have days that I have, yeah.
(T p 79 line 40 to p 80 line 50)
Q. You've been on medication for these conditions since 2007 hadn't you?
A. Yes.
Q. There's been no real change in your condition in that time had there?
A. Not a good ones, not very good, no.
Q. You were taking a number of drugs before this incident weren't you?
A. Yes.
Q. Do you remember what you were taking before the assault at the pool?
A. Effexor, Minipress and, Effexor, Minipress‑‑
Q. Seroquel.
A. Seroquel.
Q. So you were taking the same drugs before the assault at the pool as you're taking now weren't you?
A. That's right, yes.
Q. Do those drugs, as far as you're concerned, have any side effects?
A. Everything has a side effect.
Q. What are the side effect of those drugs as you see it?
A. Moods, everything I guess, I don't know. Just most of the things happens to me I think it's from them.
Q. Do they make you lethargic?
A. What's that?
Q. Tired.
A. Tired?
Q. Yes.
A. Yes.
Q. They were doing that before the assault at the pool weren't they?
A. Yeah.
Q. I'm sorry?
A. Probably, yeah. They, I have, well, they make you drowsy, they make you tired. They make you sleepy, they make you all sort of things.
Q. They've been doing that for years haven't they?
A. Yeah.
Q. When you first saw Dr Benjamin you had a problem with marijuana didn't you?
A. It wasn't because of marijuana I seen him, no. It was, I started seeing a psychologist. I was seeing a psychologist before, after I came out of the hospital and that and I couldn't, I wasn't getting anywhere with the psychologist. And the psychologist thought I should be on medications, that's who referred me to psychiatrist. And the marijuana was from my choice, I wanted to quit. I told Dr Benjamin that I wanted to quit.
Q. Because it was having a significant impact on you?
A. I thought it was causing me problems at that time.
Q. And you needed‑‑
A. After I quit, I was suffering even more, now I'm back on it."
( T p 72 line 15 to p 73 line 20)
[18]
Pre-Existing Situation - Clinical Notes
Since commencing treatment with Dr Benjamin in late 2007 the plaintiff has continued on medications including, from time to time, Efexor, Seroquel, Valium, Minipress and others. Each counsel submitted that I should draw conclusions as to whether or not the plaintiff's pre-incident and post-incident condition worsened on the basis of consideration of adjustment of medication and of dosage of medications. In the absence of expert opinion evidence and particularly in the circumstances of Dr Benjamin having not been called for oral evidence; I declined to make that determination. In my opinion it is a matter quintessentially limited to expert medical evidence, most suitably in the specialist fields of pharmacology and psychiatry.
The plaintiff gave his evidence in a generally honest way and I accept him as generally a witness of truth. My overall impression was that there was little real substance of inconsistency between the plaintiffs generalised description of his medical history and the more precise historical record contained in the clinical notes. Mindful of the considerations listed in Mason v Demasi [2009] NSWCA 227 at [2] by Basten JA, where his oral evidence of the course of his treatment and of his condition differed from that contained in the clinical notes, I prefer the accuracy of clinical notes. In particular, I am mindful of the plaintiff's lack of fluency in English. On the other hand, Dr Benjamin's clinical notes provide a written record spanning approximately 12 years of regular treatment. Over that period of time, it is reasonable to assume that Dr Benjamin struck a rapport and adequate communication with the plaintiff.
On referral to Dr Benjamin, by letter dated 16 October 2007, Mr Marando, psychologist, reported that he had been seeing the plaintiff since December 2006 and "Throughout this time I continued to see [the plaintiff] even though his mood failed to improve." Since the stabbing the plaintiff had received psychiatric treatment on a six weekly basis from a psychiatrist with the Liverpool Mental Health Team, been prescribed numerous antidepressant medications, at one point experienced suicidal ideation, and felt that the treatment he was receiving was not assisting in his management of his depression. The plaintiff reported worsened symptoms of depression including suicidal ideation on a regular basis by October 2007. He had no plan or intent of suicide. He reported that he had nothing to look forward to and that he was constantly ruminating about his then current situation and losses. He suffered extremely poor motivation and poor sleep and appetite. (Exhibit 1, page 129).
In his treating report to the plaintiff's long-term treating general practitioner, Dr Leong, on 17 October 2007, one year and eight months after the stabbing, Dr Benjamin described the psychological effect of the 14 February 2006 stabbing in terms from which I extract the following:
"Carlos… was attacked by a group of men at Fairfield…he was stabbed on the left side of his abdomen with a knife. He suffered with internal bleeding and he collapsed. He was taken to Liverpool Hospital where he was treated and he remained in hospital for twenty-five days. He subsequently became anxious and depressed and he experienced nightmares, intrusive thoughts, irritability, jitteriness and avoidance behaviour. He also felt mistrustful towards others and he reported hearing screaming and abusive voices. He was prescribed a number of medications, including Aropax, Cipramil, Zoloft and Luvox. He was also referred to a psychologist, Patrick Marando, whom he saw over the past several months. His psychologist recommended that he see a psychiatrist. He recently saw a doctor at Liverpool Hospital who commenced him on Efexor XR75mg and Seroquel 100mg tablets. He also continued to feel depressed, unmotivated and disinterested. In addition, he lost appetite and he lost about 10kg of his body weight.… Carlos's presentation is consistent with a diagnosis of Chronic Post Traumatic Stress Disorder and Chronic Major Depressive Disorder. The differential diagnosis of Substance Induced Mood Disorder or Substance Induced Psychotic Disorder may also be considered… I counselled Carlos in relation to the detrimental effects of Cannabis and I advised him to abstain from the same at all costs. I also engaged him in Cognitive Behavioural Therapy. I also changed his medications…." (Exhibit 1 pages 121-122).
Despite the continuing care of Dr Benjamin, the plaintiff continued problematic consumption of Cannabis. As the above referred to detoxification and rehabilitation in 2010 and 2011 attests. The parties agreed that entries in the evidence "THC", "Cannabis" and "marijuana" all refer to marijuana consumption. Consistent with his oral evidence, the entries in the clinical notes confirm the plaintiff's continuing use of marijuana.
In July 2014 the plaintiff told Dr Benjamin that he had not spoken to his family for a week because of an argument he had with his mother, brother and sisters to which police were called. On 15 October 2014 Dr Benjamin assessed "no change" in the plaintiff's mental health. In April 2015 the plaintiff required dental treatment because of grinding of his teeth, which treatment he obtained during that year, in Iraq: Exhibit 1, pages 188 to 189.
Nine years and two months after the stabbing, on 9 April 2015, medications prescribed by Dr Benjamin included: Efexor, Minipress, Seroquel, Antenex and Acimax (Exhibit 1, page 122). On 26 October 2015 Dr Benjamin assessed the plaintiff's mood and motivation to be down and that he was depressed with reduced energy: Exhibit 1 page 190.
In a report to Family and Community Services, New South Wales, in relation to the plaintiff being provided public housing, dated 15 January 2016 (11 months pre-incident) Dr Benjamin described the elements of the plaintiff's medical condition in relation to his housing needs as including: chronic PTSD (severe), chronic depression, anxiety-depression-insomnia-social withdrawal-poor concentration-mood swings/irritability and that these conditions in relation to housing needs rendered the plaintiff unable to live in a noisy and disruptive area because of his chronic mental illness. The plaintiff continued to attend Dr Benjamin bi-monthly (Exhibit 1, page 152). On 3 August 2016 Dr Benjamin recorded that the plaintiff felt stressed, anxious and depressed and he prescribed an increase in the medications Minipress and Efexor. On 15 September 2016 Dr Benjamin recorded that the plaintiff reported less headaches than he had reported at the August consultation and less dreams. Whilst he recorded that the plaintiff's sleep was lighter, his notes record "improved" and "going better". He recorded that the plaintiff's 36-year-old sister had been diagnosed with breast cancer: Exhibit 1 page 194
[19]
After the Incident
After the assault and speaking to Centre staff and the police, the plaintiff went home. After a couple of days, hand pain caused him to attend a doctor. An X-ray revealed the fracture. He suffered cuts to the inside of his lip. He went to the dentist and loose teeth were pulled from his mouth. He attended physiotherapy at Fairfield Hospital for his thumb. His thumb/hand cast was removed after about six weeks. He said that he could not drive for the six weeks. After his thumb was out of the cast he was in a lot of pain when he attended the physiotherapist. He underwent one injection of steroids and after a few weeks a second injection from which he received no pain relief.
He described his grip, presently, as "okay". His thumb still hurts sometimes
He still suffers some clicking of his jaw and pain when chewing. He claimed that after the injury his anxiety is worse and that he thinks a lot about everything and even the smallest things drive him crazy. He complained that his sleeping is not good in that he suffers a lot of nightmares. He feels vulnerable all the time.
He at first described in general terms, his inability to clean his two bedroom apartment for the first few months after his injury and that this was performed by his sister. He said that he could not shop and he also received the assistance of his sister in this regard. He said that he could not maintain his small lawn because he could not operate his whippersnipper due to the stiffness and pain in his thumb. He said that his brother and sister helped him with maintaining his small area of grass. He said that his sister provided food. He estimated that his brother and sister, taking turns, attended about twice weekly whilst his thumb was in a cast. He timed the ceasing of this assistance received from his brother and sister with when he had his teeth removed. He estimated that his sister and brother provided 7 to 8 hours assistance per week until then. He said that he is still missing four teeth on the left side and that he has not received any crowns or prostheses. He attends his GP when needed and psychiatric treatment continues.
With his typical frankness, in cross examination; the plaintiff agreed that he could drive from removal of the cast at six weeks post-incident and was able to shop for himself from that point. The plaintiff did not say that at any point he was unable to basically care for himself. He conceded that he was able to change his sheets weekly and to wash clothes daily. He did not leave everything to his sister and brother. From the time of removal of his cast he did all his own washing and cooking. He agreed that he was able to take care of his lawn once the cast was off.
The plaintiff said that the assault made him feel like he hated life and he could not even look at himself in the shower. In my opinion, given the plaintiff's chronic depression and Post Traumatic Disorder, it was reasonable for him to require the assistance of his brother and sister during the immediate post-incident period when his depression driven lack of motivation, consequent of exacerbation caused by the assault, meant that his need for assistance was greater than might have been the case for another person who had suffered the same physical injury.
The plaintiff called his brother Mr Douglas Sawa, who I shall refer to, without meaning any disrespect to him, as Douglas. His regular work is as a carer employed by a small cleaning company. I found his evidence to be unreliable and I was concerned that it was perhaps consciously so. This impression was obtained from his attempt to describe the plaintiff as a person who was physically okay and of normal emotional and mental health prior to the subject incident. The plaintiff's own evidence and the clinical notes of Dr Benjamin make the opposite an indisputable proposition. Mr Douglas Sawa's evidence in chief in this regard was (T p 104 line 22 to line 34):
"Q. Were you aware in ‑ that he had had a serious injury, he was stabbed in 2006?
A. Yes.
Q. And are you able to say what injuries that he sustained after that stabbing in 2006?
A. I believe it was a kidneys injury, stabbing to his kidney. He suffered depression after that, post‑traumatic disorder.
Q. So in terms of his emotional and mental health, what can you say you observed between 2006 and 2016, in respect of his emotional health?
A. Just normal, a regular guy. He wasn't any different."
There was a degree of obfuscation in his answers during cross-examination to this evidence. It confirmed my impression that his evidence was unreliable and given in order to advance the interests of the plaintiff's case: see transcript page 113 line 35 to page 115 line 02.
Prior to the incident Mr Douglas Sawa saw the plaintiff approximately weekly at visits to their parents' home. He said that after the incident he cooked a few times a week for the plaintiff and estimated that commitment at about two hours plus per day. The plaintiff only described his sister as having assisted with cooking and the provision of food. He said that he cleaned and vacuumed the plaintiff's two bedroom apartment 2 to 3 times per week. This seemed to be an excessive attention to those chores. The plaintiff lived alone and was not severely incapacitated.
In closing submissions neither party advanced argument on the basis of the evidence of Mr Douglas Sawa.
[20]
Assessment - Pre and Post Incident
During evidence in chief, the plaintiff gave the following frank description of his pre-incident mental health being up and down:
"Q. Explain to his Honour how your mental health had progressed from 2006 to 2016?
A. It's never progressed in one line straight, it's always been up and down. I mean, the smallest thing bothers me and affects me. I don't know how to, I mean, explain to you. It just, I don't know, made it worse for me, it just did.
Q. Let me ask you this question then. Before this incident that happened at Fairfield, compared to how you were emotionally after the stabbing, were you in a better state mentally?
A. Before the stabbing?
Q. After the stabbing and before this incident, were you mentally in a better state?
A. I would have been, yeah, cause I mean, two years ago I tried to get my truck licence, and I was thinking of getting a job, and yeah."
The plaintiff did get his truck licence but the work which a friend had indicated might be available, did not eventuate. He also looked into driving concrete trucks but that avenue was not available to him because he lacked experience.
The plaintiff frankly stated during his evidence in chief that before the incident, as part of the ongoing effect of the 2006 stabbing, he could "barely sleep" and "barely eat": T p 25 line 01 to line 10. He disagreed that before the incident he was unmotivated. He did agree that before the incident he felt that life was hopeless.
Dr Benjamin's first clinical note recording the subject incident of assault, is dated 2 February 2017, seven weeks post-incident. Dr Benjamin recorded "recurring nightmares since assault at the pool on 14/12/16": Exhibit 1, page 195. On 27 April 2017, Dr Benjamin recorded a reduction in nightmares and on 8 August 2017 that the plaintiff had "been better". The plaintiff continued to grind his teeth. The plaintiff had visited his uncle in Melbourne which he found enjoyable and wanted to do again: Exhibit 1, page 196. On 8 November 2017, approximately one year post-incident, Dr Benjamin reported that the plaintiff had again travelled to Melbourne to visit his family. Dr Benjamin recorded that the plaintiff's mood swings persisted, that he experienced paranoid thoughts and irritability, which conditions, according to his clinical note of 14 March 2018, were reduced: Exhibit 1 page 197
One year post-incident, on 19 December 2017, Dr Benjamin reported to Dr Leong that the plaintiff "..continued on his regular medications.." (Exhibit 1, page 123).
Dr Benjamin also reported that the plaintiffs sleep and mood had improved and again on 14 March 2018 he entered his observation that the plaintiff's condition was "improving". At that consultation Dr Benjamin recorded that the plaintiff's mood was "better", that he was "less angry", and "less irritable": Exhibit 1, page 197.
In cross-examination the plaintiff agreed with these entries by Dr Benjamin; however he "100%" disagreed that he told Dr Benjamin his clarity of thinking had improved. He maintained that his concentration never restored to his pre-incident state. He denied that he is exactly the same today as he was before the assault at the pool (T p 86 line 43 to p 87 line 06):
"Q. You accept, don't you, that you were better emotionally today than you were immediately after the assault at the pool? Do you accept that proposition?
A. Say that question again, sorry?
Q. You are better today‑‑
A. Yes.
Q. ‑‑than you were immediately after the assault at the pool?
A. Yes.
Q. You are the same today as you were before the assault at the pool, are you not?
A. Not exactly, no."
I found it difficult from his oral evidence to grasp an assessable measure of worsening of his mental state after the incident to that which he had lived with prior to the incident. The plaintiff's description of his physical injuries and psychological exacerbation consequent of the assault did not describe a clear worsening of his psychology or his incapacity from same albeit his evidence was that he felt worse. This is not wholly surprising however because the long term course of the plaintiff's pre-incident mental illness had been up and down; and logically his post-incident course, even if exacerbated would be up and down also.
The injury to the plaintiff's left thumb and consequent impairment is the subject of assessment contained in the expert witness reports of Dr Peter Giblin, orthopaedic surgeon, dated 8 October 2018 for the plaintiff and of Dr F J Harvey, specialist surgeon, dated 13 March 2019 for the defendant.
X-rays obtained 5 days post incident showed a small triangular fragment fracture from the ulnar side of the base of the proximal phalanx. The fracture is commonly described by Dr Giblin and Dr Harvey as an avulsion fracture. Dr Giblin attributed to it the common descriptive "game keepers thumb". Following removal of the cast at about 6 weeks, the plaintiff returned for 2 or 3 treatments of physiotherapy at the Hand Clinic at Fairfield Hospital and because of persisting pain in the region of the metacarpophalangeal joint ("MCPJ"), he underwent two steroid injections. The plaintiff has not sought or received treatment for his left thumb since late 2017. He does not take pain relieving medication for it.
Drs Giblin and Harvey accept that the plaintiff continues with pain in the thumb and it is acceptable that the pain is more so when he knocks it. Dr Giblin added that the pain often wakes the plaintiff at night. Dr Harvey recorded that the plaintiff said that he can satisfactorily hold jars and bottles while he removes the top with the right dominant hand but that gripping a broom or mop with his left hand, which he can do, causes pain. Dr Giblin assessed the plaintiff as permanently unfit to use his left hand for heavy repetitious gripping, impact activities or unrestrained labouring work, and Dr Harvey assessed that the injury would not prevent the plaintiff from returning to most forms of labouring work. The common assessment, I take from those statements is that the plaintiff is fit for manual work except that which is particularly heavy, repetitious, and which requires gripping and impact activities of the left hand.
In any event, the plaintiff has not worked for 12 years. Whilst Dr Giblin recorded his measurement of range of movement but did not provide a simple statement of total assessment of range of motion, Dr Harvey found a full range of movement in the left thumb.
The common ground is that the plaintiff's condition is stable and it is acceptable that the continuing pain is the result of the fact commonly found by the Doctors, that the fracture has not united.
Whereas Dr Harvey opined that no future treatment is required, observing that none had been obtained since late 2017 and that the plaintiff does not require medication for pain relief, Dr Giblin observed a prospect of deterioration manifesting by increased pain and stiffness of the joint but that the chance of long term arthritis in the MCPJ was in the order of only 5%. Arthrodesis would cost in the order of $15,000.00.
The common opinion of doctors is that the plaintiff is independent for all of his domestic needs. Dr Harvey's assessment that it was reasonable for the plaintiff to receive domestic assistance provided by his sister and brother for three months, commencing at six hours per week for the six weeks of his cast and thereafter declining to zero by 6 months, is broadly consistent with the evidence given by the plaintiff. The plaintiff timed his full independence from assistance with the date of the removal of his teeth. The report of Dr Michael Bowler, Oral and Maxillofacial Surgeon, dated 2 August 2018, served by the plaintiff, records that two teeth were removed at Fairfield Hospital shortly after the injury, a third tooth fell out or was removed by the plaintiff and the fourth and last tooth to be lost, was removed at Westmead Hospital on 29 June 2017. For those reasons, I accept the assessment of reasonable need for domestic assistance on the whole of the evidence to be as provided gratuitously by the plaintiff's sister and brother, initially six hours per week for six weeks and thereafter reducing to zero by six months.
The plaintiff suffers some chewing difficulty but he has not sought any treatment for remediation of that such as by way of denture. Dr Bowler advised two methods of treatment. The first method would be implant supported crowns, the total cost of which is estimated at $21,200.00. However, Dr Bowler explained that according to Australian Medical Practice Standards, the plaintiff is not a candidate for that procedure because of his history of smoking 10-15 cigarettes per day. At an earlier time in his life, the plaintiff successfully underwent tooth implant procedures in Iraq but it is not available to him in Australia. The second form of treatment is a lower partial denture which would be constructed at approximately $1,200.00 to $1,500.00.
Plainly, the clinical notes and oral evidence of the plaintiff describe a person who was vulnerable to exacerbation of his mental illness caused by the event of a physical beating. This is particularly so in circumstances of the assault including the aggravating element of a group attack. That the plaintiff's long term treating psychiatrist Dr Samir Benjamin in his medicolegal report of 8 August 2018 supports a worsening of the plaintiff's mental health caused by the incident is immediately acceptable evidence.
The defendant relied on the report of Dr Leonard Lee, consultant medico-legal psychiatrist, dated 18 April 2019. The parties did not call the Doctors.
The medical literature consistently reports that the plaintiff remained worried about getting attacked after the knife attack in 2006. From that period he remained anxious, suffering depression and lack of motivation. The medications prescribed for him by Dr Benjamin from approximately 2007 and continuing at the date of hearing were described by their medicinal purpose by Dr Lee as follows:
Effexor - an anti-depressant;
Seroquel - an anti-psychotic; and
Minipress - an anti-hypertensive.
I understand from the literature that Minipress also assisted the plaintiff with sleep.
Dr Lee observed from the mental state examination performed by him that "There was no objective evidence of Post-Traumatic Stress Disorder, anxiety, depression or impaired cognition, nor was there evidence of psychosis." He administered the Structured Inventory of Malingered Symptomatology, the Miller Forensic Assessment Test, the Medical Symptom Validity Test and concluded that the plaintiff was feigning his presentation such that an accurate assessment of the nature and extent of psychiatric injuries could not be assessed. Nevertheless, he concluded that to the extent that any current symptoms and disabilities are genuine, they are most significantly attributable to prior and subsequent unrelated issues. In the body of his report he referred to the stabbing in 2006 and the plaintiff's problems with marijuana following his examining the clinical literature and providing a detailed assessment of same.
Given his greater opportunity as the treating psychiatrist, and in the absence of having enjoyed the opportunity of observing the doctors give oral evidence, I prefer the assessment of Dr Benjamin. In his report of 8 August 2018 he described the plaintiff's struggle with his psychiatric condition since the stabbing in 2006 from which he suffered Post Traumatic Stress Disorder, Major Depressive Disorder and became very anxious and depressed, at points experiencing auditory hallucinations. It is plain from Dr Benjamin's report that he did observe an exacerbation of the plaintiff's symptoms over those previously suffered by him albeit, it is fair to say; his report does not in a clear or, for a lay person mathematical way, give a measure of that worsening. He does comment upon his varying the plaintiff's medication in consequence of that worsened state. He recorded that since the incident the plaintiff had reported exacerbation of anxiety symptoms and insomnia. He had also experienced recurring nightmares in which he felt threatened, assaulted, chased or killed and that he felt anxious whenever he went out and that he was looking over his shoulder.
The incident caused the plaintiff to medically regress according to his reports of persistent feelings of depression, lack of interest and lack of motivation as well as feeling vulnerable and suffering a loss of self-confidence. At medical examination for the purposes of the report, 1 and ¾ years post incident, Dr Benjamin found the plaintiff to remain pre-occupied with the physical assault and feeling paranoid and mistrustful. The plaintiff's cognitive functions including attention, concentration, memory and judgement were clinically unremarkable and the plaintiff denied thoughts of self-harm. At the paragraph numbered 7 in his report he attributed the plaintiff's presentation to a diagnosis with "Exacerbation of Chronic Post Traumatic Stress Disorder and Chronic Major Depressive Disorder". He opined "most likely precipitated and significantly caused by the physical assault on 14 December 2016." At the paragraph numbered 9 he reported that the conditions are likely to persist in the foreseeable future requiring ongoing psychiatric treatment including psychotropic medications and psychotherapy to reduce the severity of symptoms and improve his independent living. The treatment required as attributable to the incident according to Dr Benjamin would be psychiatric treatment every two months until mid-2020 at a cost estimated at the date of his report including psychiatric consultations and medications to be $5,000.00. At the date of judgment a little more than half of that period has passed and the plaintiff has received treatment from Dr Benjamin in that period. Accordingly, Dr Benjamin's estimate should be halved for the future value. Allowance must also be made for the frequency of medical attendance and need for medications which pre-existed the incident and was continuing.
[21]
CALCULATION OF DAMAGES
Non Economic Loss: The plaintiff and defendant Schedules of Damages identically submit 27% of a most extreme case. I would award that assessment on the evidence. Both parties misstated the sum at $54,500.00. I would allow the sum as adjusted from 1 October 2019 in the amount of $66,000.00.
Past Out of Pocket Expenses: These are agreed in the sum of the Medicare payback. I would allow the agreed figure of $1,373.60.
Future Out of Pocket Expenses: The plaintiff's ongoing mental health would have required him to seek specialist assistance up to a frequency of bi-monthly in any event, as well as consultations with his General Practitioner. It is not possible to precisely quantify the extra medication which exacerbation of his mental health, caused by the incident, has resulted in; however, it is reasonable to allow compensation for increased medication, at least for a period of two years as opined by Dr Benjamin. After that period, his mental illness will have plateaued at an exacerbated level. The plaintiff's un-united fracture of his left thumb is agreed by Doctors Giblin and Harvey to continue to give him problems gripping a broom or a mop and causing pain when it is bumped. I accept Dr Giblin's opinion of a 5% risk of arthritis developing in the thumb joint and that there is some prospect of him succumbing to MCPJ arthrodesis. In the past, the plaintiff travelled to Iraq in order to achieve tooth implants. Even though he is not a candidate for that treatment in Australia because of his smoking, he has not taken the interim step of acquiring lower partial dentures. Dr Bowler estimated the implant procedure would cost $21,200.00 and the denture would cost between $1,200.00 and $1,500.00. The plaintiff suffers compromised chewing and discomfort with his chewing. It is reasonable to allow for future treatment in order to remediate his difficulties suffered because of the loss of four teeth. There is nothing in the evidence which permits me to estimate when the plaintiff might require surgery on his thumb or require treatment for his missing teeth.
In their respective Schedules of Damages, the parties joined in seeking compensation by way of buffer. The plaintiff proposed $30,000.00 and the defendant proposed $15,000.00. In this course each of them adopted the following identical inclusions for future treatment expenses:
reviews by General Practitioner; ongoing physiotherapy treatment, particularly during periods of flare-ups (thumb); periodic reviews by specialist orthopaedic surgeon, possibility of surgery to left thumb to unite the fracture site; a 5% chance the plaintiff will develop MCPJ arthritis and require arthrodesis; periodic radiological investigation to assess the state of the plaintiff's (thumb); treatment plan with an oral and maxillofacial surgeon working in conjunction with a specialist; dental implants to replace missing four teeth; prosthodontic reconstruction; pain killing and anti-inflammatory medication; periodic counselling and psychiatric are; anti-depressant medication
Doing the best that I can on the evidence available I would allow a buffer in the sum of $25,000.00.
Past Economic Loss: The plaintiff does not claim past economic loss.
Future Economic Loss including loss of Superannuation: The plaintiff claims a buffer of $75,000.00. The defendant does not include a sum in its Schedule of Damages. Taking into account that the plaintiff has not worked for 12 years but that immediately preceding the incident he attempted to get back into the workforce in a job or contracted position with which he could cope; I accept that remunerative work remains his view of his future. Given the assessment of 27% of a most extreme case, the plaintiff is entitled to compensation for future economic loss. The compensation must be heavily discounted because of the difficulty of assessing the economic impact which will result from the plaintiff's injuries. It is appropriate to assess this head of compensation by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201. The plaintiff is only 37 years of age and has significant years of potential earning capacity left. I would allow $50,000.00.
Past Gratuitous Domestic Assistance: Applying the provisions of s 15(2) CLA, I would be satisfied that there was a reasonable need for services to be provided, which need arose solely because of the injuries and the services would not have been provided to the claimant but for the injury. There has been no reasonable need for services since June 2017. However, employing the provision of s 15(3) CLA, whereas gratuitous services of more than 6 hours per week were provided to meet his reasonable needs for about 6 weeks post injury, his reasonable needs thereafter diminished and by June 2017, he had no reasonable need. The evidence does not satisfy me that the plaintiff suffered a reasonable need for gratuitous attendant care services at 6 hours per week for a period of at least 6 months. The plaintiff is not entitled to compensation for past gratuitous care services.
Future Domestic Assistance: The plaintiff Schedule of Damages calculates 4 hours per week at $45.00 per hour for the remainder of his life in the sum of $174,870.00. The defendant Schedule of Damages submits a buffer be allowed on account of ongoing issues with the plaintiff's thumb and exacerbation of psychiatric condition. The defendant submits the sum of $10,000.00 be allowed. The plaintiff is independent in all domestic tasks and has been since June 2017. Expert medico-legal evidence does not support present provision of future domestic assistance. In my opinion, the buffer proposed by the defendant is reasonable in that it contemplates exacerbations which might, for instance, include a period before and after arthrodesis of the MCPJ, of which event in the opinion of Dr Giblin there is a 5% chance. I would allow $10,000.00.
I would allow damages in the sum of $152,373.60.
[22]
ORDERS:
1. Judgment for the defendant against the plaintiff;
2. Plaintiff to pay the defendant's costs; and
3. The exhibits be returned.
[23]
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: 17 October 2019
The plaintiff submissions on damages were particularly brief. Nothing was said pressing his claim for diminution of earning capacity. Albeit prior to the incident the plaintiff felt sufficiently positive despite his chronic depression, to take some modest steps toward investigating employment in truck driving, on his own evidence he was not able to find that employment.