Fuz v Carter & Ors

Deatons Pty Limited v Flew (1940) 79 CLR 370 Graham v Baker (1961) 106 CLR 340 CASES CITED : Fontin v Katapodis (1962) 108 CLR 177 Lamb v Cotogno (1987-1988) 164 CLR 1 Sandstone DMC Pty Limited & Anor v Trajkovski & Anor [2006] NSWCA 205 State of New South Wales v Lepore (2003) 212 CLR 511

Brent William Fuz (Plaintiff) Nicholas Carter (1st Defendant) Mark Matthew Watson (2nd Defendant) PARTIES : Allan William Forsyth (3rd Defendant) Walter Alexander Galbraith (4th Defendant) Tipsy Pty Limited (5th Defendant) Mount Mayon Pty Limited (6th Defendant) Enima Pty Limited (7th Defendant)

D.T. Kennedy SC/G. Smith (Plaintiff) COUNSEL : In person (1st Defendant) In person (2nd Defendant) R.S. McIlwaine SC/A. Davis (3rd, 4th, 5th, 6th, 7th Defendants)

SOLICITORS : Lough Wells Duncan (Plaintiff) Curwood & Partners (3rd, 4th, 5th, 6th, 7th Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 HIS HONOUR: The plaintiff, Brent William Fuz, has sued the first defendant, Nicholas Carter, the second defendant, Mark Matthew Watson, the third defendant, Allan William Forsyth, the fourth defendant, Walter Alexander Galbraith, the fifth defendant, Tipsy Pty Limited, the sixth defendant, Mount Mayon Pty Limited, and the seventh defendant, Enima Pty Limited, claiming damages for injuries sustained when he was assaulted outside the Legends Nightclub in Nowra on 19 March 2000. 2 The first defendant, who appeared in person, was joined in the proceedings on the basis that he was allegedly the person who assaulted the plaintiff. The second defendant, who again was not legally represented, was joined in the proceedings on the basis that he operated the nightclub. The remaining defendants were all represented, having the benefit of the same legal representation. The allegation was made against all but the first defendant that each of the other defendants employed the first defendant and was vicariously liable for his actions. It was also alleged against the defendants that they were each negligent. 3 Those defendants legally represented denied liability to the plaintiff and they also alleged contributory negligence. In essence, the contributory negligence alleged was that the plaintiff provoked the first defendant by his conduct and language, thus prompting the assault that occurred. It is also contended that the plaintiff was negligent in being near the nightclub, having been suspended some time earlier, so that he had no business in being there. 4 The nightclub premises where the events giving rise to this cause of action occurred form part of a complex described as the Archer Resort. The complex consists of a hotel/motel and the nightclub area and a bottle shop, and photographs were tendered in evidence as Exhibit A depicting the complex. The entrance to the nightclub is on the ground floor level and access to it is reached by going up a flight of four stairs closely depicted in the photograph, Exhibit E. 5 The plaintiff was twenty-four years of age at the time of the happening of the events giving rise to this claim. His evidence was that the assault occurred some time after midnight. Earlier that evening he said he had attended the Ex-Servicemen's Club in Nowra with his younger brother, his sister and some other persons, one of whom was a friend of the younger brother who was celebrating a birthday. Between 9.00 pm, or thereabouts, and midnight, the plaintiff said that he had about six middies of beer and the group then proceeded on foot to the Legends nightclub. The group joined the crowd that had gathered outside the nightclub. 6 The plaintiff said there were fifteen or more people outside the club, including two persons wearing black clothing. I am satisfied on the evidence that these were the security guards. The plaintiff said that he observed these two men preventing some people from entering. However, his sister entered and then came back outside. The plaintiff said that his sister then attempted to enter again and was denied entry because it was thought that her identity was falsified. According to the plaintiff, he queried with one of the guards why his sister was being refused entry, and in the course of the conversation which followed, he said that he used strong language, including "the f word". He said that as this discussion took place, he was standing on the staircase. He said he turned to talk to his little brother and felt two or three large blows to the back of his head. He turned around and was hit again. His next recollection was of being in hospital. 7 Jodie Lilliebridge is the plaintiff's half-sister. Her evidence was that she attended the Ex Servicemen's Club on 19 March 2000 with the plaintiff and her other brother, Russell, her girlfriend and a male friend of Russell, named Ben Osborne. The group left the club and walked to Legends nightclub. Having produced her identification, she was allowed to enter the club and she was followed by her girlfriend. However, the witness said that she realised that her brothers had not followed them into the club so she went back outside. It was when she attempted to return to the nightclub that the security guard, who she identified as the first defendant, refused her entry. At the time this happened there were a lot of people outside the premises, according to the witness. Ms Lilliebridge said the first defendant claimed that she was too intoxicated to enter the club. Ms Lilliebridge said that the plaintiff queried why the first defendant would not allow his sister to return to the club, and her evidence was that her brother used foul language in a conversation that lasted for "no more than five minutes". The first defendant then struck her brother on the head with his arm (indicating from the elbow upwards). She said that the first defendant struck the plaintiff twice in the face and then he pushed him down the stairs. The plaintiff struck the ground head first. Ms Lilliebridge said there was blood everywhere and her brother was taken to hospital. 8 In cross examination Ms Lilliebridge said her brother was standing at the top of the flight of stairs outside the club until he was pushed off balance by the first defendant. 9 Russell Lilliebridge said that he left the Servicemen's Club with the plaintiff, his sister, and her friend, Anna. He said that his sister and her friend entered the club first and then Jodie came back outside. She was then refused re-entry, and the plaintiff challenged the first defendant as to why his sister was not being allowed to re-enter the club. According to the witness, his brother used foul language in the exchange that took about five minutes. He said that the first defendant then elbowed his brother twice in the head; then the first defendant pushed his brother down the stairs "up and over the railing and down the stairs". The witness said that his brother landed with his head down at the bottom of the stairs and his feet up the stairs. He went to his brother's assistance as he lay groaning on the ground. He said there was blood coming from the back of his brother's head. His recollection, like that of his sister, was that the plaintiff was struck on the face rather than the back of the head. 10 Police who investigated the accident took a statement from a man named Bradley-Nelson Robb on 20 December 1999. Portion of that statement was tendered by consent, and Mr Robb said in that statement that he was at the nightclub and was in the course of leaving it. The statement contains this account of what the witness saw when he reached the front door: "The security guard who is described as 5'8" male, 30-35, aboriginal appearance, dark skin, short dark hair. He stood in front of us. The victim was standing was a metre in front of Andrew and I was standing right behind him. He was standing at the top of steps facing the doorway and he said something to the bouncer. Suddenly the security guard raised his right elbow and swung from forty five degrees straight into the side of the head. The next two were full blooded 180 degree elbows to the head. The victim was stunned from the first hit and the following two also got him very quickly. He then punched him with his left fist straight into the face which hit him flush on the mouth area. The victim fell straight backwards down the stairs. His head hit the ground at the bottom of the stairs and it made a loud crunch noise…" 11 The first defendant was called to give evidence by the second defendant. There was no challenge by the first defendant to the occurrence of the assault and I am satisfied by the evidence I have reviewed, and in particular the evidence of the plaintiff's half sister and the plaintiff's half brother, that the plaintiff was assaulted by the first defendant who used his upper arm to strike the plaintiff twice in the head. I am further satisfied that, having done this, the first defendant then pushed the plaintiff down the stairs. Further, I am satisfied that the plaintiff landed head first at the foot of the flight of stairs, striking his head heavily on the ground. 12 The evidence discloses no justification for the assault by the first defendant. 13 What is the position as to the liability of the remaining defendants? 14 At the commencement of the hearing the plaintiff was granted leave to rely upon a second amended statement of claim filed in Court on 11 July 2006. As I see it, and Mr Kennedy's submissions were to this effect, paras 6 and 7 plead the assault by the first defendant and vicarious liability in the remaining defendants as his employer. Then, in para 8, a case in negligence is pleaded against each of the defendants, and this is particularised in the later paragraphs of the pleading. 15 So far as the first defendant is concerned, the plaintiff is plainly entitled to succeed against him on the basis that he personally assaulted the plaintiff, and I do not understand Mr Kennedy to have ultimately pursued the claim in negligence against that defendant. 16 It is convenient to deal next with the case in negligence as against the remaining defendants. 17 In para 11 of the second amended statement of claim, a case in negligence was particularised in reliance upon the provision outside the nightclub premises of a stairway which was allegedly defective in various respects. There was no evidence to support the allegations as to such defects, and Mr Kennedy did not pursue a case based upon the negligence particularised in para 11. 18 I return to para 10 of the amended pleading upon which reliance was ultimately placed. This paragraph addressed the case of negligence against the second defendant. The same case was particularised in later paragraphs against the third, fourth, fifth and sixth defendants. I record at this point of time that the plaintiff did not pursue any case against the seventh defendant, and there was no evidence of negligence to support a case against that defendant. Moreover, there was no evidence upon which a finding could be made that the seventh defendant employed the plaintiff. 19 The case pleaded in negligence, as well as the case pleaded in assault, calls for a finding as to who it was who employed the first defendant. 20 Mr McIlwaine submitted that I would not be satisfied that the first defendant was employed by any of the defendants represented by him, namely the third, fourth, fifth and sixth defendants. The second defendant submitted that I would be satisfied on the evidence introduced that it was the third, fourth, fifth and sixth defendants who employed the first defendant. 21 The only defendant who gave evidence in this case was the first defendant, and he gave no evidence to identify his employer. There were, however, a number of documents introduced into evidence which require consideration in determining the employment issue. Exhibit M identifies the second defendant as the proprietor of the business name "Legends Nightclub" in the period commencing September 1992 and ceasing in June 2002. Exhibit O is a document described as a lease agreement between the second defendant and the third and fourth defendants. This document bears date 30 November 1998, and provides for a lease commencing on that date and to expire on 30 June 1999. It provides for yearly renewal as from 1 July 1999. It provides for three months notice should either the lessors or the lessee wish to terminate the agreement. The "operative part" of the agreement includes cls (7) and (8). Clause (7) provides for certain costs to be met by the second defendant and cl (8) is expressed as follows: "Costs to be paid for by [the third defendant] and [the fourth defendant] for Legends Nightclub:- (a) all other necessary licences and insurances to operate the club [ie apart from those to be paid by the second defendant as defined in cl (7)]; (b) maintenance and improvements; (c) bar and security staff wages ; (d) give-aways for nightclub; (e) extra advertising in regards to special events or other forms of entertainment that the Archer Resort wishes to hold in the nightclub."

(Emphasis added) 22 Clause (9) provides: "It is agreed by all parties of this agreement that [the second defendant] will manage the nightclub at the Archer Resort with the supervision solely of the other parties involved in this agreement [ie, the third defendant and the fourth defendant]." 23 Exhibit N is a partnership agreement dated 17 November 1998, and the parties to that agreement are identified as the third defendant, the fourth defendant, the fifth defendant and the sixth defendant. It is unnecessary to record the detail of the provisions of this agreement save to record that the partnership business is identified in the document as the business carried out under the firm name of "Archer Hotel/Motel at Kalander Street, Nowra". This partnership agreement I am satisfied relates to the premises in which the Legends Nightclub was located. 24 Exhibit P evidences that the holder of the necessary hotelier's licence for the period 20 November 1998 to 22 July 2002 was the third defendant. 25 There was no evidence as to the renewal of the lease agreement, Exhibit O, but I infer in the circumstances of this case a continuance of the lease and of the obligations under the lease up to the time that the plaintiff was assaulted. 26 The second defendant tendered the wages book for employees in the nightclub covering the period from 4 July 1999 to 25 June 2000, and this records the names of persons identified as employees as hot dog vendor and disc jockey within that period. It identifies the second defendant as their employer. Noteworthy is the absence of the first defendant as an identified employee of the second defendant during that period. That absence is, of course, consistent with the expression of the obligations undertaken by the third and fourth defendants in the lease agreement with the second defendant, Exhibit O. The evidence of the payment of wages by the second defendant to the disc jockey and to the hot dog attendant is consistent with the discharge of the second defendant's obligations under cl (7) of Exhibit O. 27 There is no evidence before me that the second defendant employed the first defendant, and I am satisfied on the evidence that it was the partnership identified which was responsible for the payment of the wages of the first defendant and which is to be regarded as his employer. 28 In coming to that conclusion, I am mindful of the evidence given by Mr Stargate, who was employed at the Archer Resort as a manager for some twelve months prior to the assault. Mr Stargate said his duties included looking after bar staff and the running of the bars. Mr Stargate said that as manager he reported to the third and fourth defendants. He gave instruction to security staff in relation to their duties, and he identified the first defendant as one of those security staff personnel. Mr Stargate said that he gave security staff instructions to work in pairs, and he gave instructions as to how they were to approach patrons. He also gave instructions that security staff were only to use "equal opposite" force to remove somebody (T 253). I am also mindful that the first defendant gave evidence that, if practical, he would report where a problem arose to the duty manager, and the first defendant also agreed that the security staff would meet after a shift to discuss matters that occurred during the shift. That evidence was consistent with the evidence of Mr Stargate who said that after the nightclub closed each morning he spoke to security staff about any incidents on the preceding shift. I accept the evidence of Mr Stargate that he would speak to security staff in order to consider whether security arrangements could be improved. 29 The lease, Exhibit O, directly identifies the third and fourth defendants as being responsible for payment of the first defendant's wages. Having regard to all the evidence to which I have referred, I find on the balance of probabilities that the plaintiff was employed by the third, fourth, fifth and sixth named defendants. In so concluding, I am, of course, mindful that the fifth and sixth named defendants were not parties to the lease agreement, Exhibit O, but the partnership agreement pre-dated the lease, and I have regard to its implications. Moreover, the third, fourth, fifth and sixth defendants have the same legal representation in this cause. It has not been contended in the event that the employer-employee relationship is found to exist as between the first defendant and any one of the third, fourth, fifth and sixth defendants, that it should not be found to exist as against all four of them. No issue has been presented as arising between those defendants. 30 The issue of vicarious liability which arises in this case is to be determined having regard to the finding I have expressed. 31 Returning to consideration of the case as particularised against the second defendant, it depends essentially upon proof that the second defendant employed the first defendant. It has not been proved that he did so, and the case of failure to instruct the first defendant has not been proved as against the second defendant. Nor is the principle of vicarious liability enlivened as against the second defendant. 32 Accordingly, the plaintiff fails as against the second defendant, and that defendant is entitled to the entry of judgment in his favour. 33 The case as particularised against the remaining defendants is identical. It is alleged that each of those defendants was negligent in the following respects: "a. Allowed the First Defendant to intentionally and unlawfully assault the plaintiff. b. Failed to protect the Plaintiff against unlawful assault by his agent, employee, or servant, the first defendant; c. Failed to instruct or adequately train his agent, employee, or servant, the first defendant; d. Failed to instruct his agent, employee or servant, the first defendant, not to assault the patrons; e. Failed to conduct the nightclub business so as not to expose the plaintiff to unnecessary risk of injury. f. Failed to take any reasonable or adequate precautions for the safety of the plaintiff; g. Exposed the plaintiff to a risk of injury that could have been avoided by reasonable care." 34 It is not suggested that any of these defendants encouraged the first defendant to assault the plaintiff. In effect, what is alleged is that each of these defendants failed to prevent the assault that occurred by necessary training or instruction of the first defendant. 35 The evidence was that the first defendant held a security guard's licence and that in order to obtain that licence it had been necessary for him to do a course and to be approved as a licence holder by the police (T 236-237). The first defendant acknowledged that he had been given instruction about the use of force in the course of his training and he also said that the manner in which he behaved towards the plaintiff was out of character with the way in which he ordinarily behaved as a security officer. He said it was not his way of performing his duties to assault people. Mr Stargate gave evidence, which I accept, that he had never seen the first defendant being violent to patrons and that he had observed him to be very quiet and very tolerant in the performance of his duties. 36 Mr Kennedy submitted that there was negligence by the first defendant's employers by allowing him to deal with the plaintiff without assistance. The evidence was that there were two security guards outside the nightclub and Mr Stargate gave the evidence, to which I referred earlier, when instructions had been given to the security officers as to how they were to approach patrons, and they had been instructed to work in pairs. It is not the case that the first defendant has complained that he was not given adequate assistance. Plainly, the first defendant acted on his own initiative. 37 I am not satisfied that the plaintiff has established that there was any relevant instruction or training that ought to have been given to the plaintiff by any of the defendants, the provision of which would have avoided the harm suffered by the plaintiff. The first defendant gave no evidence that there was any relevant failure by his employer, and I am not satisfied that such has been proved. 38 Accordingly, I am not satisfied that the plaintiff has proved the negligence particularised as against the third defendant, the fourth defendant, the fifth defendant and/or the sixth defendant. 39 This leaves the question as to whether or not these defendants are vicariously liable for the assault committed by the first defendant upon the plaintiff. 40 In the much cited decision in Deatons Pty Limited v Flew (1949) 79 CLR 370 Williams J said this as to principle (at pp 384-385): "We were referred to a large number of cases but we cannot do better, I think, than rely, like Jordan C.J., on the statement of the law in the passage from Salmond on Torts, 9th ed. (1936), p. 495 cited with approval in the judgment of the Privy Council in Canadian Pacific Railway Co. v. Lockhart (1942) A.C. 591, at p. 599. 'It is clear that the master is responsible for acts actually authorized by him: for liability would exist in this case, even if the relation between the parties was merely one of agency, and not one of service at all. But a master, as opposed to the employer of an independent contractor, is liable even for acts which he has not authorized, provided they are so connected with acts that he has authorized that they may be regarded as modes - although improper modes - of doing them. In other words, a master is responsible not merely for what he authorizes his servant to do, but also for the way in which he does it. On the other hand, if the unauthorized and wrongful act of the servant is not so connected with the authorized act as to be a mode of doing it, but is an independent act, the master is not responsible: for in such a case the servant is not acting in the course of his employment, but has gone outside of it.'" 41 In State of New South Wales v Lepore (2003) 212 CLR 511 Gleeson CJ said, on the issue of vicarious liability, at 536 [42]: "It is clear that if the wrongful act of an employee has been authorised by the employer, the employer will be liable. The difficulty relates to unauthorised acts. The best known formulation of the test to be applied is that in Salmond, Law of Torts in the first edition in 1907 at p 83., and in later editions eg, Salmond on Torts, 9th ed (1936), pp 94-95: an employer is liable even for unauthorised acts if they are so connected with authorised acts that they may be regarded as modes - although improper modes - of doing them, but the employer is not responsible if the unauthorised and wrongful act is not so connected with the authorised act as to be a mode of doing it, but is an independent act." 42 Later, the Chief Justice proceeded to analyse the conduct of the barmaid in Deatons v Flew at 539 [51]: "…If, on the facts, it had been possible to treat maintaining order in the bar as one of the barmaid's responsibilities, and if, on the facts, it had been open to regard her conduct as an inappropriate response to disorder, then the jury could properly have held the employer liable in trespass. However, the barmaid's only responsibility was to serve drinks, and throwing a glass of beer at a customer could not be regarded as an improper method of doing that…" 43 In Sandstone DMC Pty Limited & Anor v Trajkovski & Anor [2006] NSWCA 205 the Court of Appeal was concerned to determine whether the employers of a security officer at a nightclub were liable for harm inflicted upon a patron when he was assaulted by the security officer after that officer had removed him from the nightclub. The patron was successful against the security officer's employer at first instance and the appeal was dismissed. In Sandstone, Ipp JA, with whom the other members of the court agreed, made this analysis as to the misconduct of the security officer, referring to the judgments in Lepore (at [19-[22]): "19 Firstly, removing disorderly patrons and persuading them not to return to the nightclub was part of Mr Eurkul's responsibilities and it was open to the trial judge to regard his conduct 'as an inappropriate response' (in the words of Gleeson CJ at 539, [51]) to Mr Trajkovski's conduct. 20 Secondly, the judge's unchallenged finding that the assault was committed 'to ensure that a troublesome patron would go on his way and leave the club vicinity' satisfied an element that Gummow and Hayne JJ said (at 591, [231]) was capable of establishing vicarious liability, namely, the doing of a wrongful act in intended pursuit of the employer's interests or in intended performance of the contract of employment. 21 Thirdly, on his Honour's finding, there was a close causal connection between the acts causing injury and the employment (the acts being perpetrated in the belief that the employers' interests were being furthered) and there was a close temporal connection (a matter of seconds) between the completion of the physical removal and the assault. Thus, the element of a sufficiently close connection (required by Kirby J) was satisfied. 22 Irrespective of whether Mr Trajkovski gave any indication of his intention to return, on the judge's findings, the assault was committed to persuade him not to return. On this basis, the assault was committed at a time when Mr Eurkul was continuing to carry out his duties as an employee. The assault was a vicious one, but the judge found that Mr Eurkul did not intend to cause Mr Trajkovski permanent or serious injuries. There was no finding that the assault was committed out of vindictiveness or spite; rather, the finding is that Mr Eurkul assaulted Mr Trajkovski because he thought that, by punching and kicking him, he would cause Mr Trajkovski to go on his way." 44 In Deatons Pty Limited v Flew the conduct of the barmaid who threw the beer from the glass and then the glass itself at a customer was determined to be conduct for which the employer was not vicariously liable. It was no part of her duties to keep order at the bar and her position simply required of her that she serve drinks to customers (see the analysis of Deatons by Gleeson CJ in Lepore at [50] and by Ipp JA in Sandstone at [15]). 45 It is important in the present case to have regard to the nature of the first defendant's duties. The first defendant was employed to control the entry of patrons into the nightclub and his authority extended to ensuring that intoxicated persons did not enter and that persons who did enter were of legal age. His duties extended to turning away quarrelsome or argumentative patrons. The third defendant, as the licensee of the premises, was empowered by s 103 of the Liquor Act to refuse to admit to the premises persons who were intoxicated or quarrelsome or disorderly, and the third defendant was also empowered to turn out or cause to be turned out of those premises any person who was intoxicated or quarrelsome or disorderly. The security officer performing such a function was doing something which he was employed to do. 46 The evidence establishes that the plaintiff was affected by intoxicating liquor at the time of the assault and he was making a nuisance of himself outside the nightclub premises. It was in the interests of the defendants that there was no interruption of or disruption of the vetting of those intended patrons queued up to go into the nightclub and what the plaintiff did enlivened the first defendant's obligations in the discharge of those duties I have identified. It seems to me in the circumstances that the first defendant was authorised in the scope of his employment duties to turn the plaintiff away from the nightclub. Of course, he was not authorised specifically to take the steps that he did take to turn the plaintiff away and what he did exceeded the use of reasonable force. Nevertheless, in my opinion his conduct is properly to be categorised as so connected with his authorised employment activities as to be regarded as a mode of performing them, albeit an improper mode. 47 Hence, I conclude that the third, fourth, fifth and sixth defendants are vicariously liable for what the first defendant did and hence that they are liable to compensate the plaintiff in damages for the harm suffered. 48 The defendants pleaded contributory negligence. There was no evidence that the plaintiff had been suspended from entering the nightclub, and, indeed, the plaintiff denied this (T 45). The defendants also relied upon the plaintiff's conduct in quarrelling with the first defendant and in using offensive language towards him. However, for the reasons stated, I am not persuaded that the plaintiff's case in negligence has been established against the third, fourth, fifth and sixth defendants. In the circumstances, the issue of contributory negligence does not arise. 49 It may well be the case that the plaintiff's conduct provoked the first defendant but this is not a case in which the plaintiff is claiming exemplary damages, and, where compensatory damages only are claimed, the damages are not to be reduced by reason of provocative conduct on the part of the plaintiff: see Fontin v Katapodis (1962) 108 CLR 177 and in particular the judgment of Owen J at 187; and Lamb v Cotogno (1987-1988) 164 CLR 1. 50 This brings me to the assessment of damages.

How are damages to be assessed? 51 Mr McIlwaine submitted that the assessment of damages is governed by the provisions of the Civil Liability Act 2002. Mr Kennedy submitted that that statute does not apply and that damages are to be assessed by reference to common law principles. 52 It is common ground that these proceedings were commenced after the operation of the Civil Liability Act and in these circumstances the competing submissions invite consideration of s 3B of the Act which, so far as is relevant, provides: "(1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows: (a) civil liability in respect of an intentional act that is done with intent to cause injury or death…" 53 Hence, the Act does not apply to proceedings in respect of

(ii) done with intent to cause injury or death. 54 I am satisfied that the first defendant's acts in striking the plaintiff in the manner in which he did and in pushing him down the stairs were intentional acts. Were they also acts which were done with intent to cause injury or death? 55 There is no evidence on which I could or do find that the first defendant acted with intent to cause death, but did he act with intent to cause injury? 56 Mr McIlwaine submitted that "injury" in the context of s 3B(1)(a) means the injury actually suffered and that I would not be satisfied on the balance of probabilities that the first defendant did what he did intending to inflict the injuries actually sustained by the plaintiff, including the head injuries. Mr Kennedy, on the other hand, submitted that the sub-section excludes the operation of the Act where an intentional act is done with intent to cause some injury, albeit non specific. 57 I consider that Mr Kennedy's submission is to be preferred. If the exclusion provided for by s 3B(1)(a) is only to have effect in cases where the person who committed the assault intended to cause the precise injury inflicted, this would markedly restrict the circumstances in which the provisions of the Act are not to apply. This is simply because of the difficulties which would generally arise in determining that the tort feasor acted with intent to cause the precise injury suffered. For example, absent some admission by the tort feasor who punched his victim in the face, it would be difficult for a court to conclude that the tort feasor intended to cause blindness, where blindness was caused, as a consequence of a blow striking the victim in the eye. 58 Section 3B(1)(a) does not expressly provide: "with intent to cause the injury or injuries suffered", nor does it contain words to that effect. Absent such precise restrictive language, I conclude that the application of the Act is excluded provided the conduct to be considered is done "with intent to cause" some injury. 59 In the present case the assault could not be regarded as a trivial one. In addition to the impact of the blows, the plaintiff was pushed down the stairs, and I am satisfied on the balance of probabilities that in doing what he did the first defendant acted with intent to cause injury. Hence, s 3B(1)(a) applies and damages in this case are to be assessed in accordance with common law principles.

The assessment of damages 60 The plaintiff was born on 5 November 1975 so that he was twenty-four years of age at the time of the assault and he is presently thirty years old. As earlier stated, I accept the evidence that after the plaintiff was struck and pushed, he fell and struck his head on the ground, and came to rest with his head on the ground and with his legs up the stairs. Whilst the plaintiff said that, having been struck, his next recollection was of being in hospital, it is not altogether clear whether there was a loss of consciousness. According to Russell Lilliebridge, his brother lay groaning on the ground after he came to rest and he was subsequently taken to hospital by ambulance. The ambulance report recorded that apart from being intoxicated, the plaintiff was groaning but aware of his presence in the ambulance and that he was able to state his name, so I conclude that he was conscious by the time he was in the ambulance, whatever his state of consciousness may have been prior to then. 61 The plaintiff was taken to the Shoalhaven Hospital where he was kept under observation from 2.00 am until shortly after 5.30 pm on 19 March 2000. He was then allowed to go home but was re-admitted on 22 March 2000 and he remained in hospital until 26 March 2000. His skull was x-rayed on 22 March 2000 and x-ray revealed a large oblique fracture extending over the parietal region on the lateral view. On the same date, a CT scan of the brain was undertaken. This showed the oblique fracture and it also revealed several areas of haemorrhage within the cerebral substance of the right cerebral hemisphere as well as some areas of haemorrhage in the left hemisphere. The significance of the head injuries and the extent, if any, to which the plaintiff has been disabled by them has been very much in issue in this cause. Apart from the head injuries, the plaintiff alleges that he sustained injury to his low back and to his neck with ongoing symptoms and disability. Again, these claimed injuries and disabilities are very much in issue. Hence, it is necessary to consider closely the evidence that bears upon these issues. 62 The plaintiff's mother, his half sister and his half brother gave evidence as to their observations of the plaintiff both before and since the assault. Two neurologists were qualified for the plaintiff and their reports were introduced into evidence. These neurologists are Dr Darveniza and Dr Teychenne. Dr Buckley, a specialist in rehabilitation medicine, was also qualified on the plaintiff's behalf. He furnished reports and he also gave oral evidence. Then there were a number of psychologists who assessed the plaintiff. Mr Schlesinger saw the plaintiff in August 2000, and his report was introduced into evidence. Later reports were obtained from Mr Guilfoyle, on behalf of the plaintiff, and from Mr Cole, on behalf of the defendants. Both Mr Guilfoyle and Mr Cole gave oral evidence. An occupational therapist, Ms Wall, was qualified by the plaintiff and the defendants also qualified an occupational therapist, Ms Beaver. Their reports were introduced into evidence and each of the occupational therapists gave oral evidence. I propose to review the evidence from each of the witnesses identified, albeit briefly. Before doing so I will refer to the evidence which the plaintiff gave. 63 The reliability of the plaintiff as a witness was challenged, and I shall return to an assessment of this issue later. 64 The plaintiff completed his Higher School Certificate, but it is fair to say that he did very poorly at school, as the plaintiff acknowledged (T 36). His Higher School Certificate was awarded with a TER of 15. I will return to look more closely at the plaintiff's employment record when considering the claim for loss of earning capacity, but I observe that in the period of over six years from the time that he left school until the time that he was assaulted, there appear to have been very large gaps in his employment history. The plaintiff's history was that before the assault he enjoyed outdoor activities such as soccer and surfing but he has been unable to pursue those activities since the assault. According to the plaintiff, the reason why following his discharge from hospital after the assault he returned to hospital was because he felt very unwell and was experiencing vomiting and headaches. After the second period in hospital, the plaintiff said he felt unable to cope and his mobility was impaired, as was his concentration and his memory. He was given assistance in the home and personally, and I shall consider this more closely when reviewing the Griffiths v Kerkemeyer claim. 65 Since the assault the plaintiff complains that his memory is "shot", that he is unable to concentrate and that he experiences anger. The headaches have persisted. He said that when he cooks he forgets the power is on and he burns things. He complains that he experiences back pain if he sits or stands for too long and he has difficulty in carrying objects. He is restricted in neck movements. The plaintiff complains that he becomes depressed. 66 The plaintiff is unmarried but he has been in what the evidence indicates has been an intermittent relationship with the mother of his two children, presently seven and five years of age. There is a third child who was born to the plaintiff's partner and the plaintiff plays some role in caring for that child as well as his two children. The three children live mainly with the plaintiff's former partner but they visit the plaintiff for two or three days per week. The plaintiff complains that he has trouble lifting them and caring for them. The plaintiff described himself as being mostly house-bound. He said he has not been in employment since the assault and that he has been on a disability pension for the last two and a half to three years. He has also received a parenting payment. 67 Jodie Lilliebridge described her half-brother as easy-going before the assault. This witness said that her brother would listen, he had no problem of recall and he had an interest in art and woodwork. Opportunities to see her brother in the period since the assault have been limited because the witness moved to Goulburn a few months after the assault and after that lived in Queensland before returning to the Nowra area some three months ago. The witness said that whilst the plaintiff was calm before the accident, he is not as patient now and he does not listen. He does not seem to be as happy as before and he is very slow doing shopping. The witness remembers her half-brother as being active in soccer and in using a surfboard. She said he is still good with children and is patient with them but not as patient as he was before. She noticed that he has done some woodwork since the assault, having made a chest of drawers. However, whilst he started to make these two years ago, they are unfinished and the drawers are the wrong size. 68 Mrs Fuz described her son as being a bubbly, outgoing young man prior to the assault. She said that he played soccer and he surfed and that he was very artistic. Since the accident, he lacks motivation and so far as his woodwork activity is concerned, he does not finish items. He becomes distracted in conversation and forgetful about appointments. Ms Fuz says that her son has forgotten her birthday the last couple of years. 69 Russell Lilliebridge described the plaintiff as very "laid back" and calm before the assault. He said that the plaintiff won surfing competitions and was involved in art. Since the assault the plaintiff has lacked motivation and does not finish anything. He used to socialise before but not since the assault. 70 This brings me to a review of the evidence of the neurologists, neither of whom was required for cross examination. 71 Dr Darveniza examined the plaintiff on 14 May 2002. The plaintiff complained of short term memory loss and personality change in that he had become impatient and intolerant, easily stressed and depressed. The plaintiff also complained of neck and back pain. 72 Dr Darveniza furnished a later report dated 3 July 2006 commenting on the CT scan of the brain on 22 March 2000 and on an MRI of the brain on 6 October 2005: "CT scan of the brain on the 22nd March 2000 reports, several small areas of haemorrhage within the cerebral substance of the right cerebral hemisphere and a small subdural collection 5mm in thickness, mild mass effect with compression of the right lateral ventricle and some shift, low density areas surrounding the haemorrhages, a right temporo-parietal fracture and contrecoup haemorrhages in the left frontal and temporal lobes. MRI of the brain on the 6th October 2005 reports a thin extra axial collection over the right anterolateral temporal lobe, probably a chronic subdural hygloma with underlying atrophy and gliosis and also a gliosis in the left frontoparietal white matter and in the right frontal white matter. These changes are consistent with his known head injury and confirm chronic brain damage." 73 Dr Darveniza also commented on Mr Guilfoyle's report of 15 April 2002: "A forensic psychology report by Liam Guilfoyle dated the 15 April 2002 found an average full scale IQ of 99 without discrepancy between the verbal performance scales, reduction in processing speed, poor concentration and attention and impaired auditory memory function - all consistent with chronic brain damage." 74 Dr Darveniza referred to Dr Buckley's reports, which he said he had read, and then expressed these conclusions: "A series of reports by Dr Stephen Buckley, consultant physician in Rehabilitation Medicine have also been read. Dr Stephen Buckley finds a 24% whole person impairment utilising the Motor Accident Authority Impairment Assessment Guidelines and I would agree in general with his assessment and percentage whole person impairment due to traumatic brain injury. Hence by all measures and accounts this gentleman has post-traumatic chronic brain damage, leaving him with short term memory loss, an unfavourable change in personality including impatience, intolerance, depression and moodiness and poor impulse control with abusive behaviour to himself and others and slow thinking. Hence the conclusions reached in my original report remain unchanged. In the original report it was stated that he remained fit for general duties not requiring repetitive heavy bending, stooping or lifting but now added to this he is unfit for employment requiring a high intellectual demand. He will have difficulty finding gainful employment in the open labour market given his unfavourable personality change with poor impulse control and abusive behaviour, etc." 75 Dr Teychenne furnished reports dated 12 May 2005 and 27 May 2005. In the latter report he referred to Mr Guilfoyle's psychometric testing reports and made these points:

(i) depression was consistent with the residual deficits of a traumatic brain injury;

(iii) on elementary testing of memory function, Dr Teychenne found evidence of a deficit "in recent or post distractional memory function";

(iv) it was apparent that the plaintiff had an executive frontal lobe deficit;

(v) the plaintiff also had evidence of "psychomotor slowing", slower thinking process and problems with calculations;

(vi) having noted the CT scan on 22 March 2000, Dr Teychenne considered the areas of cerebral contusion were consistent with the plaintiff's cognitive deficits, "particularly the deficits in working memory function and the deficits in executive frontal lobe function". 76 Dr Teychenne said this: "On my assessment of the patient, I would agree that he had had a traumatic brain injury. He had evidence on CT scan of the brain of cerebral contusion and cerebral oedema with evidence of cerebral and possibly some brainstem compression. He had a fracture over the right parietal region and it was apparent that he had sustained a traumatic brain injury both as a result of the upper cut administered by the bouncer and as a result of hitting his head on the concrete at the bottom of the flight of stairs. His cognitive deficits including impaired short term memory, word finding difficulty, poor reading comprehension, misjudging distances, loss of concentration and the frontal lobe deficits manifested in his inability to construct and compose pleasing paintings and sculpture were all consistent with a severe traumatic brain injury and cerebral contusion as indicated by the CT scan of the brain. I would agree that this patient should have a MRI scan of the brain and an EEG. It may show evidence of slow activity consistent with an underlying severe traumatic brain injury and cerebral contusion. It was apparent that the patient had been subjected to considerable force of impact both at the time of the uppercut applied to the chin and the fracture of the skull which occurred when he hit his head on the concrete floor some flights of stairs below the doorstep. The subdural haematoma was consistent with the patient sustaining a severe brain injury." 77 Dr Buckley assessed the plaintiff on 6 May 2004. His opinion, as expressed in his report of 1 July 2004, was that the plaintiff had "a traumatic brain injury in the 'severe' range with consequent deficits of higher cognitive function and behaviour." Dr Buckley furnished a later report of 12 November 2005, having considered Mr Guilfoyle's report of 13 August 2004. His conclusion about the brain injury was unaltered in the later report, but Dr Buckley noted that the evidence available regarding the plaintiff's impairment was limited "insofar as any neuropsychological assessments have been of a very limited nature, and the only available reports regarding his capacity to manage are those of Mr Fuz himself." Hence, Dr Buckley cautioned that his suggestions concerning requirements for care had to be considered as provisional. 78 In his oral evidence, Dr Buckley said that the CT scan disclosed areas of brain contusions and that there was clearly damage to the right frontal lobe and the left frontal lobe. He would expect that there was microscopic damage to the brain cells in between. He said that the report clearly indicated that there was damage to the right temporal lobe and that temporal lobes are most importantly associated with memory function. He said that damage in the frontal lobes may bring about reactions that are more unpredictable and impulsive. Dr Buckley opined that forgetfulness is consistent with head injury and in his experience nearly all people with brain damage and cognitive impairment are depressed. He said that a motivation problem would be consistent with brain damage. 79 Dr Buckley found no objective evidence of neck or back injury and regarded the complaints of back and neck pain as being of limited significance. 80 In cross examination Dr Buckley was asked these questions and gave these answers (T 346): "Q. You are not a neurologist? A. I am a neurological rehabilitation physician, and my entire medical practice since 1981 has been in neurological rehabilitation, among other conditions. And I would point out further, that neurologists have almost nothing to do with the management of brain injury patients. Neurologists are never asked to manage brain injury patients, particularly neurosurgeons, but neurosurgeons, in my experience, always refer brain injury patients to rehabilitation physicians, like myself, because of our expertise in managing them.

Q. But your whole opinion, just to cut down to basics, is that what you have recommended, is upon the assumption that this man is suffering from severe brain damage, is that right? A. We know he is suffering from severe brain damage because he had a CT that showed the damage.

A. My whole recommendation is based upon the detail of the history and the examination and the neuropsychological findings." 81 Mr Guilfoyle administered a series of tests and furnished his earliest report concerning the plaintiff on 15 April 2002. There followed the later report of 13 August 2004 after the plaintiff had been seen on four occasions for the purposes of that report. He then furnished his report of 15 June 2006 after a clinical assessment undertaken on 28 May 2006. Mr Guilfoyle said he would not have carried out the last series of tests if he had appreciated that Mr Cole had conducted testing in the previous year. 82 According to Mr Guilfoyle, when he assessed the plaintiff in April 2002 the plaintiff's working memory was extremely poor and the plaintiff did not respond well to working memory subtests. The test results Mr Guilfoyle considered to be consistent with a person suffering brain damage. The plaintiff's comprehension was considerably below average. He considered the plaintiff to try hard in addressing the tests that were made. Mr Guilfoyle assumed that before the injury was sustained, the plaintiff functioned in the top twenty percent, his understanding being that the plaintiff progressed well through school. 83 When Mr Guilfoyle tested the plaintiff again in 2004, he carried out the same tests as in 2002 and noted that there was some improvement in the results, although the plaintiff's immediate memory testing indicated deterioration from average to low-average. Again he thought that the test results in 2004 were consistent with brain damage. There was further improvement in the test results in 2006 but, as remarked earlier, the witness said he would not have done the tests in 2006 had he known Mr Cole had tested the plaintiff in 2005. This was because of what he described as the "practise effect". 84 Mr Cole assessed the plaintiff on 4 May 2005 and reported on the same day. He said that the plaintiff's verbal skills were in the low average range and his non-verbal ability was in the average range. Commenting on the plaintiff's present cognitive functioning, Mr Cole wrote: "On the whole, when compared to pre morbid levels, the assessment did not indicate significant cognitive impairment in the range of specific abilities evaluated, but reduced performance was found in a couple of areas. In addition to verbal and visual learning/memory and a range of frontal lobe functioning outlined below, the following cognitive abilities were also evaluated: verbal fluency, verbal and visual arithmetic reasoning, verbal comprehension, attention to detail, general knowledge, visual construction skills and speed of information processing. Verbal comprehension and general knowledge were reduced at the low average level. However, this reflected a lack of educational achievement, rather than cognitive problems. Attention to detail, visual constructional skills and visual sequential reasoning were intact, but speed of information processing was somewhat reduced, but not significantly so. Estimates of verbal learning and memory functioning provided equivocal results. The learning of new verbal material such as paired associate learning, and meaningful prose was intact, but the recall of word lists was well below the expected level for his age. His retention after thirty minutes did not indicate cognitive problems as he was able to recall information he had actually learned. Problems in the area of the recall of word lists tended to indicate retrieval rather than an intake problem, as he was able to recognize items he had learned. Estimates of visual learning and memory functioning did not indicate impaired functioning. The learning of new visual material such as, the recall of peoples faces and verbally labelled social situations were intact. His retention after thirty minutes delay indicated that he was able to recall what he had learned. This included the recall of a complex visual design. Performance in this area indicated that he had neither an intake nor a retrieval problem, as he was able to recognize items he had learned. Results on tests evaluating frontal lobe skills and higher order executive ability did not indicate cognitive problems. He did not have difficulty following instructions, and did not perserverate in his responses. Mr Fuz's strategy in the copying of a visual task was intact as were his scanning and planning skills. He did not have difficulty shifting from one concept, or train of thought, to another. Verbal fluency, verbal reasoning and arithmetic reasoning were all intact." 85 Mr Cole's conclusion (T 314-315) was that he found no significant cognitive impairment, although there was some reduced performance in a number of tests that may affect every day functioning. There were a few such test results but none that he considered significant. 86 When attention was drawn to the finding on testing by Mr Guilfoyle of a full scale IQ of 97 in June 2006, the witness did not see any inconsistency with the full scale IQ he had found of 92 in the previous year. The witness said as between one testing and the next there can be a difference of up to five points. 87 In cross examination Mr Cole said that the bleeding detected in the CT, to which I made earlier reference, was bleeding into areas that controlled memory, concentration, impulse and anger. Mr Cole acknowledged that memory problems were consistent with brain damage and so, too, were concentration problems. 88 Each of the occupational therapists who provided reports and who gave evidence in this matter spent time interviewing the plaintiff. Ms Wall, qualified by the plaintiff's solicitors, attended on the plaintiff in the flat he occupies at Bomaderry for her report of 17 December 2005. Ms Beaver, qualified on behalf of the third to sixth defendants, attended on the plaintiff at Bomaderry on 5 April 2006 for her report dated 6 April 2006. Essentially, these two witnesses addressed the issue of any compensable needs for past and future care, and I will visit their evidence when addressing the issues to which their evidence is relevant. 89 The plaintiff gave evidence (T 32) that pain in the back prevented him from running and from returning to the game of soccer. He was asked these questions and gave these answers (T 32): "Q. How do you go these days with running? A. I don't run. I don't run because it causes too much pain.

Q. What about sort of, say, going to the supermarket and buying groceries and things of that nature, are you able to do that? A. Only because I have to, not because I want to carry it back. But only because I have to.

Q. Do you have difficulties with carrying? A. I have great difficulties carrying them back.

Q. Do you go to the supermarket by walking or by some other means? A. By walking mainly and they're only little loads." 90 It is relevant in the context of assessing the above evidence and, indeed, the plaintiff's evidence in general, to have regard to video evidence which was introduced by Mr McIlwaine. The plaintiff's activities were observed and filmed on 5 and 6 April 2006 and on 22 and 23 June 2006. The plaintiff is shown riding his bicycle into Nowra and home again. The plaintiff is shown in the Mitre 10 store and in the supermarket. The plaintiff might have been expected to refer to visits to the supermarket using his pushbike in response to the questioning which I have recorded above, but he did not do so. I do not, however, overlook the fact that Ms Wall has recorded in her report that the plaintiff told her that he completed his shopping "by doing it in small amounts he can carry home on his bike". 91 The film introduced into evidence does not depict the plaintiff pedalling his bicycle with great vigour and, in general, the movement depicted could be described as leisurely. There are occasions on the return visit to his home when the plaintiff has alighted from his bicycle and proceeded to push it uphill. Nevertheless, the film does not show any restriction in back or neck movement and, indeed, the plaintiff is shown rotating his neck with apparent freedom. My impression of the film is that it lends no support to the plaintiff's complaints referable to either his back or his neck. The plaintiff is shown to squat and to bend and to straighten without apparent restriction. I have viewed the film several times and I have detected no restriction in back or neck movement at all. 92 The journey from Bomaderry to Nowra covers a distance, according to Ms Wall, of approximately six kilometres through gently undulating countryside. 93 Whilst the film lends no support to the plaintiff's case concerning his back and neck complaints, it seems to me that it does assist him in relation to complaint of impairment of brain function. He is pictured at a hardware store and at a supermarket taking what seems to be unduly long periods contemplating possible purchases. The film in this regard is consistent with the evidence of the plaintiff's sister and her observation that she had noticed since the assault that the plaintiff is very slow with shopping. It seems to me to be consistent with Dr Teychenne's conclusions that the plaintiff has evidence of psychomotor slowing. 94 The various expert reports were admitted into evidence with the qualification that the histories recorded were not to be regarded as evidence of the fact. The histories were to be independently proved. This highlights the importance of assessing the reliability of the evidence given by the plaintiff in relation to the question of brain damage. The plaintiff's complaints of inability to cope, loss of mobility, impairment of concentration and memory, feelings of anger and depression call for scrutiny. 95 In submitting that the plaintiff's evidence ought to be considered as unsatisfactory, Mr McIlwaine drew attention to the following features:

(i) The plaintiff gave evidence (T 14) that he had been working for Flecelen for seven to eight months up until one week prior to the assault and that he intended to return to that employer. He explained that his employment had ceased because the employer was moving from one construction task to another. That evidence is not to be accepted because the relevant group certificate shows that the plaintiff worked for Flecelen Pty Limited from 23 January 2000 to 29 February 2000 and not in any other period in that financial year. The only other period of employment that the plaintiff enjoyed with Flecelen was from 2 March 1999 until 7 May 1999 (see Exhibits H and J).

(ii) The plaintiff described his neck movements as being definitely restricted and that he had persistent pain in his low back which affected his mobility (T 33). Mr McIlwaine submitted those complaints were inconsistent with the video evidence and that the complaints are significant because the plaintiff agrees that he told Ms Beaver that the reason why he could not return to work was because of his low back (T 49). Mr McIlwaine submitted that that evidence ought not to be accepted. This evidence requires discrete attention and I will address it when assessing the evidence concerning any back and neck disability.

(iii) Mr McIlwaine referred to evidence given of shopping habits (T 51). He described how he walked to the shops at Bomaderry and if he was feeling well enough he would carry shopping on his back from Nowra. He gave evidence (T 52) that the walk from Bomaderry to Nowra took about thirty minutes or forty-five minutes if he was carrying a load, and he referred to walking there because he could not afford transport. In that evidence the plaintiff gave no evidence as to his bike riding activities which later emerged in the video evidence.

(iv) When he was cross examined about his visit to the supermarket at Nowra that took place some two weeks before giving evidence, the plaintiff agreed with the description of his activities but said that it took him "two and a half, three days to get over that" (T 60). It was then put to him (T 61) that he returned to Nowra the very next day after the occasion about which he had been cross examined. He said he had no recall of doing so. The evidence establishes that there were Nowra visits on two consecutive days.

(v) The plaintiff gave evidence (T 35) that he attended his general practitioner once every three months "to try and get relief". That evidence was not supported by the records of Dr Finley, the plaintiff's general practitioner (see Exhibit 5).

(vi) The plaintiff denied telling Ms Beaver that he used a Super Vac carpet cleaner on his girlfriend's carpets on an occasion in early April 2006, contrary to Ms Beaver's report recording that he had told her this (see Exhibit 2, 5.10). I accept the accuracy of Ms Beaver's report in this regard and the plaintiff is shown on the video carrying the vacuum cleaner to a van, and placing it in the van. 96 Mr Kennedy submitted that the plaintiff gave evidence concerning his memory shortcomings and that the medical evidence and the psychological testing provided support for memory impairment as a result of the injury sustained. Mr Kennedy submitted that in weighing the submissions by Mr McIlwaine which I have recorded, it is appropriate to pay regard to the plaintiff's memory impairment. I consider that there is substance in that submission but, nevertheless, I have concluded that the plaintiff's evidence ought to be approached with caution, particularly in relation to matters as to which his evidence does not find support from other sources. 97 It is plaintiff's evidence that he has had persisting problems with his back and his neck. He complains of problems with lifting and bending and of back ache if he sits or stands for long periods of time. He complains that these problems restrict him in what he is able to do. 98 The plaintiff consulted a chiropractor and a number of reports were introduced into evidence from Mr Murphy. The most recent report was dated 30 April 2004 and in that report Mr Murphy recorded that he had seen the plaintiff twenty-two times since June 2001 and that the plaintiff had continued to complain to him of generalised spinal discomfort, particularly in the low back and around the neck. Mr Murphy wrote on 30 April 2004 that he expected the plaintiff would "continue to have ongoing weakness in the ligamentous tissues associated with the injuries." 99 The plaintiff does not appear to have sought any treatment for his back condition since he last saw Mr Murphy, and the medical evidence about his neck and his back is meagre. Dr Finley wrote on 12 May 2006 that he had not seen the plaintiff since October 2005. The plaintiff's visits then, and on an earlier occasion in July 2005, were prompted by his solicitors who requested an EEG and an MRI of his head. The report of 12 May 2006 addressed the results of those tests. Dr Finley did not in that report address the issue of the plaintiff's back and neck complaints. He had earlier reported, on 4 March 2002, that "total spine radiology on 26/04/01 was normal." 100 Dr Darveniza recorded the plaintiff's complaints of intermittent mid back and low back pain in the earliest of his reports of 24 May 2002. On examination he found "minimal painful restriction of neck movements" and "normal back movement". At that time Dr Darveniza considered the plaintiff was fit for general duties not requiring repetitive heavy bending, stooping or lifting. Presumably, since the doctor found no abnormality on examination, he suggested those restrictions, accepting the plaintiff's complaints about his neck and his back. Dr Darveniza made no later physical examination of the plaintiff's back. 101 In his report of 27 May 2005 Dr Teychenne reported that the plaintiff required an orthopaedic assessment in relation to his neck and back injury. 102 Dr Buckley examined the plaintiff on 6 May 2004 and reported on 1 July 2004 as follows: "Mr Fuz stood 160cm and weighed 59kgs, being of strongly muscled build. Examination of his back revealed an erect stance with no loss of the lumbar lordosis nor scoliosis. There was no tenderness or spasm. He flexed to his ankles and there was no extension. Other ranging was normal. He was able to stand on his toes and heels and mounted the examination plinth easily. Examination of his hips revealed a full range of movement, and there were negative sacroiliac joint stress tests. Straight leg raising reached 80º easily on both sides, and there were negative nerve root traction signs. Examination of his neck revealed a full range of movement, and he had moderate bilateral hand callosities." 103 In evidence, Dr Buckley said that the plaintiff could have sustained soft tissue injury causing pain up until the time of Dr Buckley's examination but there was no objective evidence to support such complaints. In Dr Buckley's opinion the plaintiff probably had some pain but that he had no specific impairment of the back or the neck (T 328). Dr Buckley was asked these questions and gave these answers (T 328-329): "Q. What effect do you think that the head injury may be having on his perception of the pain and its level?

OBJECTION (MCILWAINE). ON SAME BASIS. QUESTION ALLOWED.

Q. Are you able to answer that? A. Absolutely. It is not uncommon that, in brain injury, the brain damaged person seeks, in their own understanding of their failings, to identify some cause of problems other than cognitive dysfunction due to traumatic brain damage. Nobody likes to think of themselves as brain damaged. Therefore, the person with brain injury is likely to focus on physical symptoms as a cause of their difficulty and, if there is some neck pain and/or back pain, they tend to blame those sorts of injuries as the cause of all their problems; their difficulty in doing anything; their difficulty in completing tasks; their difficulty in getting back to work. But the real reason is, in people with brain injury, like Mr Fuz, their brain is not working properly and, therefore, they can't do those tasks, and the back pain and the neck pain are of only limited significance, in reality.

Q. Does that result in their perception of the pain that they may be having as being greater than it otherwise might likely be? A. It may well.

HIS HONOUR: Q. That presupposes, I take it, so that I can understand what you are saying, that there is some organic explanation for the presence of pain in the low back? A. Well, your Honour--

Q. Am I right in thinking that? A. I think you are right in thinking that, but--

Q. Then what is the organic explanation, doctor? A. I was going to say that the difficulty is in back pain, and it is always the difficulty, if there are no clear-cut scan findings, like a ruptured disc or nerve impairment, that we are not clever enough to tell which ligament or which muscle or which joint capsule is causing the pain, in many cases, and people do have pain, but without any diagnosable pathological entity. It does not mean that there is no entity there; it means that we are not clever enough to diagnose it.

Q. Are you postulating that there is an organic explanation for low back pain here, or not? I just want to understand what you are saying? A. I think the man probably has pain. If one could dissect his back, one would probably find a reason for it, but we are not going to find it on the available scans or the kind of examination that I, or any other physician, can perform.

KENNEDY: Q. Is his perception, and the processing as far as the brain damage is concerned, capable of enhancing his perception of pain? A. I think it means that he places more significance upon the pain than is probably real." 104 Later, in cross examination Dr Buckley agreed that on his examination of the plaintiff he found him to be strongly muscled. He could find no abnormality with either the low back or the neck. 105 The plaintiff was examined by Dr Eagleton, a consultant surgeon who was asked to see the plaintiff on behalf of the third, fourth, fifth and sixth defendants. Dr Eagleton saw the plaintiff on 26 April 2005 and recorded a history of short lived intermittent sharp pain in the neck once every two weeks and daily lumbar pain, varying with activity. On examination of the neck, Dr Eagleton found a full range of movement, with pain at the limit of movement in all directions. On examination of the lumbosacral spine, he found a full range of movement in all directions with pain at the limit of all movements. He observed that muscular power and tone and tendon reflexes were normal in the upper limbs and that muscular power and tone and tendon reflexes were normal in the legs. The plaintiff was able to sit up from the supine position without difficulty. 106 Dr Eagleton expressed the opinion that the plaintiff had been left with chronic pain in the low back and recurrent episodes of pain in the neck and shoulders. He said there was no evidence to suggest bony or disc injuries in any area of the plaintiff's spine and it was his belief that injury in those areas was of a jarring nature with the possibility of soft tissue injuries. He thought that the complaints in the upper and lower spinal areas were "consistent with the nature of the injury" and would restrict the plaintiff for any heavy physical work. 107 No assessment of the plaintiff by an orthopaedic specialist has been introduced into evidence. 108 I am persuaded on the balance of probabilities that the plaintiff suffered some soft tissue injury affecting his neck and his low back but I am not persuaded that the plaintiff has ongoing symptoms in these areas to the extent to which he complains. I am influenced in this conclusion by my assessment of the film, which, of course, the doctors to whose evidence I have referred did not see. I do not find that the plaintiff has any ongoing restrictions in either his neck or his back such as would, viewed in isolation, place any significant restriction on his working capacity. 109 I am, however, satisfied that the head injury which the plaintiff sustained was, indeed, significant. I accept the accuracy of the x-ray and CT scan reports of 22 March 2000 and the evidence of Dr Darveniza and of Dr Teychenne in the respects I have earlier recorded. I also accept the conclusions of Dr Buckley as summarised earlier in [78]. I accept also that the plaintiff does have problems with his memory and concentration and anger control. I accept that his motivation has been affected, as evidenced by his inability to pursue his interests in artwork and woodwork in the manner in which he did before the assault. On this issue, I accept the evidence of the plaintiff's family members as earlier reviewed. 110 I accept as reliable the evidence from the plaintiff's family members concerning their observations of the plaintiff since the assault and their observations of the plaintiff before the assault. 111 I accept that the plaintiff experiences depression and headaches causally related to the head injury. 112 I accept that the brain damage which the plaintiff suffered resulting in the ongoing problems to which I have referred has significantly disturbed the plaintiff's enjoyment of life and that it will continue to do so. I accept that it has had an effect upon the plaintiff's ability to work and that it will continue to do so in the future. 113 I find on the balance of probabilities that the plaintiff's disabilities referable to the head injury are permanent. I consider that an appropriate sum to compensate the plaintiff for the non economic aspects of general damages is $130,000. 114 I allow interest on $55,000 referable to the past in the sum of $7150. 115 The past out of pocket expenses have been agreed in the sum of $5779.90, and that sum I include in the assessment. 116 A claim is made for future treatment costs. This claim is based upon the evidence of Dr Buckley who wrote on 12 November 2004: "In my opinion, taking into account his limited insight arising from his traumatic brain injury, Mr Fuz requires regular review by his general practitioner, and this should be four times annually, once at the level C extended service rate and three times at the level B specific service rate. He should have annual review by a consultant physician in rehabilitation medicine." 117 There is no contrary medical evidence, and notwithstanding Mr McIlwaine's submissions, I am persuaded on the balance of probabilities that it is reasonable to allow for these medical attendances. 118 The plaintiff gave evidence that he takes Panadeine Forte for his headaches, and I consider it is reasonable to allow for the ongoing cost of this medication. 119 I propose therefore to allow for an ongoing cost to address the future needs identified at the rate of $9.30 per week for the rest of the plaintiff's life. By reference to the three percent tables, I allow for this claim the sum of $12,500, rounding the calculation off. 120 This brings me to the claim for loss of earnings and loss of earning capacity. Mr Kennedy made the submission that I should make provision for past economic loss at the rate of $600 per week and that I should use the same figure in making provision for loss of earning capacity for the future. Alternatively, Mr Kennedy invited consideration of Exhibit Q which sets out average weekly earnings in various callings. In inviting the measure of $600 per week, Mr Kennedy relied upon the plaintiff's earnings the last time he worked. That was earnings as a labourer for Flecelen Pty Limited in the period from 23 January 2000 to 29 February 2000. In that period the plaintiff averaged earnings of $600 per week. 121 Wage levels have increased since the plaintiff last worked but, of course, the plaintiff was not in regular employment when he was injured and he did not pursue regular employment from the time he left school. Indeed, the plaintiff's work history was most unsatisfactory. Having left school, the plaintiff did a training course at the Department of Employment, Education and Training at the Lady Denman Heritage Complex at Huskisson. He completed this course in December 1995. There is a letter dated 1 July 2002 from Behrmann Bricklaying (part of Exhibit K) which records that the plaintiff worked for that employer as a brickie's labourer for some unspecified period, and there is also a letter (part of Exhibit K) dated 16 June 2002 from one Peter Alchin who records that the plaintiff worked for him on a casual basis as a labourer. The period of employment is not specified. The only income tax return tendered in evidence (Exhibit H) is for the year ended 30 June 1999. In that year the plaintiff disclosed earnings with Flecelen Pty Limited and with Behrmann Bricklaying. The relevant group certificate from Behrmann Bricklaying shows a period of employment from 3 July 1998 to 7 August 1998. The relevant group certificate from Flecelen shows a period of employment from 2 December 1999 to 7 May 1999. 122 According to Mrs Fuz, the plaintiff worked at a rubber factory on Flinders Estate at some time after 1997 or 1998 but Mrs Fuz was unable to say what work her son did there or for how long he worked there. Mrs Fuz also thought that the plaintiff worked on some boat at Wollongong after the Lady Denman position, but no details have been given in relation to any such employment. 123 In the result, between December 1995 when the Lady Denman position finished and March 2000, the only gainful employment undertaken by the plaintiff of which there is any record is employment with Flecelen Pty Limited from 2 March 1999 to 7 May 1999 and from 23 January 2000 to 29 February 2000 and employment with Behrmann Bricklaying from 3 July 1998 to 7 August 1998. In all, the group certificates referred to cover a period of some nineteen weeks and the signatory on the Flecelen group certificates is a person with the surname Alchin, so it may be that the letter of 16 June from a person with the same surname, to which letter I made earlier reference, is referring to employment with Flecelen. In any event, the evidence does not establish that the plaintiff was in regular gainful employment between the time he left school and the time of the assault. Mr Kennedy submitted that it may be that the plaintiff, because of his memory impairment, no longer recalls the work that he did over these years, but I consider it unlikely that the shortcomings in this area can be explained by memory loss. Had the plaintiff pursued meaningful employment other than that evidenced by the various group certificates, it is to be expected that the plaintiff's family would have been aware of it. There is simply no evidence that accounts for what appears to be prima facie an extremely unsatisfactory working history. 124 It is fundamental in determining what provision should be made for the plaintiff to have regard to the extent to which he would have been likely to put his earning capacity to use beyond the date of the assault had he not been injured. As was said in Graham v Baker (1961) 106 CLR 340 at 347: "An injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss." 125 Accepting for present purposes that but for the assault the plaintiff would have been able to earn $600 per week as a labourer up until the present time, it seems to me that to allow such a sum would be altogether excessive. The plaintiff has failed to satisfy me that had he not been assaulted he would have pursued regular gainful employment over the past six years. Indeed, I find that to be unlikely. To approach my task on the basis that the plaintiff would have been in regular employment but for the assault would involve ignoring the plaintiff's work record. Moreover, I consider that the plaintiff has some modest residual earning capacity to be brought into account in the past and for the future. In so concluding, I am mindful of the evidence in point from Dr Darveniza, Dr Teychenne and Dr Buckley. 126 Dr Darveniza stated in his most recent report that the plaintiff will have difficulty finding employment on the open labour market "given his unfavourable personality change with poor impulse control and abusive behaviour". Dr Teychenne considered that the plaintiff had lost a significant proportion of his earning capacity referable to the impairment of his capacity in his artwork and his woodwork, but I do not understand Dr Teychenne to consider the plaintiff's work capacity as completely destroyed. 127 Dr Buckley is pessimistic about the plaintiff's working future because he considers that the plaintiff is unlikely to hold down a position in the long term: "…long term maintenance [of work] is unlikely, and with frequent loss of employment of relatively short periods, and through dissatisfaction with his habits, there will be fewer reasonable references and less capacity to find employment". (Report of 12 November 2005) 128 Dr Buckley did not conclude from his neuropsychological assessment that the plaintiff was unemployable and he certainly is not rendered so by the soft tissue injuries considered earlier. 129 I find that the plaintiff's head injury has significantly impaired his working history and that it is unlikely because of it that the plaintiff will be capable of maintaining steady employment in the future. Nevertheless, there is some residual capacity that I should bring into account in determining what I should allow for past loss and when deciding what to allow for future loss of earning capacity. 130 As to the past, the plaintiff has not sought work since he was injured. He has remained on social service benefits. However, I consider he has had the capacity to do some light work of an undemanding type, in the sense of not being unduly taxing mentally. I recognise for the past, as well as for the future, the difficulty expressed by Dr Buckley concerning steady employment (see [127] above). 131 Weighing the various considerations I have expressed, I have concluded that a fair measure of the lost capacity, to the extent to which it would, on the probabilities, have been put to use in the past, is $250 per week. 132 Accordingly, I allow for the past the sum of $84,500, rounding my calculation off. 133 I am not satisfied that I should award any interest on this past allowance having regard to the benefits the plaintiff has received since the assault. 134 A claim is made for lost superannuation benefits for the past. In respect of this claim I allow the sum of $7600, rounding my calculation off. 135 Turning to the future, Mr Kennedy submitted that with maturity and responsibilities it is to be expected that the plaintiff would have applied himself to seeking and retaining steady employment had he not been injured. It was pointed out that he has two children he is legally required to support, and he has also assumed responsibility for a third child, although not the father of that child. 136 On the other hand, the plaintiff was already a parent before the assault and this did not appear to influence his work history. Moreover, the de facto relationship was unsettled before the assault, just as it has continued to be since that event. The plaintiff was twenty-four years old at the time of the assault and his pre-injury work record is such that I am unable to find as a probability that the plaintiff would have sought and/or maintained full time employment had he not been injured. 137 I assess the measure of the plaintiff's lost capacity to earn for the future at $250 per week. I do so having again taken into account the extent to which I consider it likely that the plaintiff would have used his ability to earn had he not been injured, and I again bring into account what I consider to be the measure of the plaintiff's residual earning capacity. The lump sum presently required to compensate for a loss of $250 per week to age sixty-five, using the three percent tables, I calculate at $279,750. I discount that figure by fifteen percent for the vicissitudes of life and arrive at a figure for the future of $237,788. 138 I allow for future loss of superannuation benefits the sum of $21,400. 139 The plaintiff makes a claim for past services gratuitously provided. Mr Kennedy submitted that the claim ought to attract an allowance in excess of $40,000 and in making that submission he relied upon the report of Ms Wall and the calculations recorded at p 25 of that report. Ms Wall considered it was consistent with the nature of his injuries that the plaintiff would have required supervision to perform the task of showering and dressing for eight weeks and that it was reasonable to allow one half hour per day over that period, a total of twenty-eight hours. Ms Wall otherwise appears to have accepted what the plaintiff told her as to the measure of the support provided in arriving at the total number of hours costed for the past. 140 On the day that Ms Wall visited the plaintiff and made her assessment, he had the children with him and Ms Wall thought he was having difficulty coping with the demands of cleaning and laundry. She observed dishes from several meals on the sink and there was unclean clothing and linen in the laundry. Her observation was that the house was untidy and there were children's toys and food crumbs "spread liberally" in the living room. 141 Ms Wall's observations are to be contrasted with those of Ms Beaver who attended the plaintiff's home for the purposes of her assessment several months later. The children were not with the plaintiff on the occasion of Ms Beaver's visit. Ms Beaver noted that the plaintiff's bedroom was very neat and tidy. There was some popcorn on the floor of the living room and so were some children's toys. The toys were in front of a toy box but there was artwork under the kitchen table where there were a few bits of popcorn. Ms Beaver's assessment, and this is recorded in her report in some detail, was that the plaintiff was able to address the activities of daily living independently. 142 Based on what the plaintiff told her, he was independent in personal care some three weeks after the accident (T 272) and Ms Beaver made an assessment of past care needs set out on p 18 of her report following her discussion with the plaintiff (T 272-273). According to Ms Beaver, a total of 128 hours care was required covering the period of one year following the accident. There was more intensive assistance required in the period after the plaintiff left hospital and up until 14 July 2000. Then there was a need for assistance for heavier house cleaning for a further thirty-eight weeks, to 24 March 2001. 143 In assessing the appropriate allowance for past gratuitous services, I have regard to the plaintiff's evidence as to the position after he was discharged from hospital (T 24): "Q. How were you then coping with looking after yourself, was anyone assisting you? A. I had assistance.

Q. What assistance did you have? A. I had assistance with those things I mentioned and with shopping and paying bills.

Q. When you say assistance, who provided you with the assistance? A. My little brother, the flat mate that was living with us and Leanne.

Q. Do you have any idea about how much time they spent each day helping you at that time? A. Each day, five hours a day.

Q. Did the necessity for the five hours, did that decrease as time went by as you got a little better? A. It was over a substantial period yeah, it did." 144 The plaintiff's brother gave no details of assisting the plaintiff and, indeed, it was his evidence that he did not have much contact with the plaintiff after the accident, although they continued to live together for some three months. However, the plaintiff's half-brother worked on night shifts and slept during the day. 145 The flatmate referred to in the evidence set out above was not identified and gave no evidence. Nor was the plaintiff's girlfriend called as a witness. 146 The plaintiff's evidence above recorded differs from what he told Ms Wall and it also differs from what he told Ms Beaver. 147 None of the plaintiff's family who gave evidence assists me in determining the appropriate allowance for past gratuitous services. 148 When Ms Wall was made aware of the video observations, she agreed there was no physical reason why the plaintiff would not be entirely independent in his own personal care and from a physical point of view he would be able to prepare meals, do the shopping, do the laundry and do the housekeeping(T 178-179). Ms Wall agreed on the video presentation a need for domestic assistance was not shown from a physical point of view. 149 The plaintiff gave evidence that his girlfriend helps when the children are visiting him, and I accept that she may do so but it is not plain whether that assistance is directed to the specific needs of the children or of the plaintiff. 150 When Dr Buckley wrote his report specifying the plaintiff's needs in the home, it was his understanding that the plaintiff was living with his mother. He was asked these questions and gave these answers (T 340-341): "McILWAINE: Q. If I can ask you to make those assumptions, then I will ask you whether you agree with certain propositions I will put to you if those assumptions were the fact, do you follow me? A. Yes.

Q. I want you to assume that the plaintiff is independent in his personal care, that is his bathing, his toileting, all his personal hygiene; that he is independent in his dressing, undressing; that he is able to shop for his needs and is able to plan and prepare and cook his meals; he is able to wash his own clothes and do his general laundering; he is able to change the bed linen, he is able to make his bed; he is able to clean the premises in which he lives and he is able to keep those premises in a hygienic and habitable state. Would you agree with me if you make those assumptions there is no need for domestic care? A. Provided that independent, which is the word you described these things, means that he doesn't need any reminders from other people, and all this happens completely without any intervention from anybody else, yes he, doesn't need help." 151 Considering the claim for past gratuitous services, I propose to make allowance for this claim according to the analysis of Ms Beaver on p 18 of her report and to allow for the provision of 128 hours of services. I accept that Ms Beaver's allowance followed her discussions with the plaintiff and that this allowance fairly measures what I find to have been the reasonable need attracting compensation. On this approach, I allow $2176, applying an hourly rate of $17. 152 In her report Ms Wall addressed the question of the cost of providing child care on the assumption that it was necessary to provide a nanny to look after the children to the extent that the plaintiff was perceived to be unable to do so. This claim was not pursued, nor was it maintainable following the decision of the High Court in CSR Limited v Eddy [2005] HCA 64. Whilst that decision has led to amendment of the Civil Liability Act, the statutory amendment does not apply to this assessment of damages. I do accept that when the plaintiff has access to the children, their care is made to some extent more burdensome for him by reason of those brain damage features I have earlier considered. This I have taken into account in the assessment of general damages. 153 The plaintiff makes a claim for future equipment needs. I am not satisfied that a reasonable need has been established for any of the items the subject of this claim as set out on p 25 of Ms Wall's report. The items there identified are perceived by Ms Wall to be required on the assumption that the plaintiff is experiencing neck and back pain such as warrants their provision. The evidence does not satisfy me that such items are needed because of any soft tissue injury the plaintiff may have suffered on 18 March 2000, and I make no allowance for them in my assessment.

Future domestic assistance 154 A claim is made for the provision of housekeeping services for the future as on a commercial basis. The claim is for the provision of ten hours of housekeeping services per week, and the plaintiff relies upon Dr Buckley's report dated 12 November 2005 in which the author wrote: "…I propose that if he was to live independently then he would require some supervision in order to have a reasonable quality of life. I would propose that the supervision would be two hours per day of domestic housekeeper assistance five days a week. The duties of the housekeeper would be to assist him with all shopping, cleaning, cooking, washing and so forth in order that he might maintain a reasonable level of personal and domestic hygiene and personal nutrition." 155 As earlier observed, Dr Buckley had understood that the plaintiff was living with his mother and the above extract from the report doubtless prompted the cross examination recorded above (at [150]). 156 I do not consider that a future need for ten hours of housekeeping assistance per week has been shown. However, I do not ignore the evidence of Ms Wall as to the shortcomings in the cleanliness and tidiness of the plaintiff's home on the occasion of her visit. I consider that there is some difficulty for the plaintiff in dealing with the household chores which is referable to the brain damage he suffered and which ought reasonably and effectively to be addressed by having limited commercial domestic assistance. It seems to me that it would be reasonable to allow for paid help for ninety minutes per week to address the plaintiff's shortcomings in attending to household matters such as are likely to be referable to ongoing impairment of brain function. I observe that had it been proved that such services were provided on a weekly basis up to the present time, I would have been minded to compensate for the provision of such services. 157 For the future provision of domestic assistance, I allow the sum of $47.85 per week, adopting the costing set out by Ms Wall on p 26 of her report. I allow for that assistance for forty-nine years (that being the plaintiff's life expectancy) and, using the three percent tables, allow $64,620 (rounding the calculation off). 158 Finally, a claim is made for the provision of a case manager to oversee and coordinate the maintenance programme of the plaintiff and to coordinate the involvement of the roles of doctors looking after the plaintiff. When Dr Buckley expressed the need for a case manager in his report of 12 November 2005, he was not aware of the plaintiff's then living conditions or the extent of his independence. I am not satisfied, having considered the relevant cross examination of Dr Buckley (T 343-344) that the need for a case manager has been shown in this matter. It will be for the plaintiff's general practitioner to refer him to an appropriate specialist each year and the general practitioner's secretary can arrange the plaintiff's appointments. I note that when Ms Beaver called on the plaintiff she reported that the plaintiff met her at the door "having remembered the appointment and being aware of the time that [Ms Beaver] was expected." 159 I summarise the assessment as follows:

General damages $130,000 Interest (on allowance of $55,000 for the past) 7,150 Out of pocket expenses (rounded off) 5,780 Future medical and pharmaceutical expenses 12,500 Loss of earnings and loss of earning capacity: Past economic loss (at $250 per week) 84,500 Past loss of superannuation benefits 7,605 Future loss of earning capacity 237,788 Future loss of superannuation benefits 21,400 Provision for past gratuitous services 2,176 Provision for future domestic assistance 64,620 $573,519

Formal orders 160 1. Verdict and judgment for the plaintiff against the first defendant, the third defendant, the fourth defendant, the fifth defendant and the sixth defendant in the sum of $573,519. 2. Verdict and judgment for the second defendant on the plaintiff's claim against him.

3. Verdict and judgment for the seventh defendant on the plaintiff's claim against it. 4. Order that the first, third, fourth, fifth and sixth defendants pay the plaintiff's costs in the proceedings brought by the plaintiff against them. 5. Order that the plaintiff pay the second defendant's costs in relation to the proceedings brought against him by the plaintiff.

6. No order as to costs of the proceedings against the seventh defendant. **********

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