Hadaway v Robinson & Ors

District Court of NSW|2009-08-20|Before: Mr J

For the reasons I have set out in detail in this judgment, I have preferred and accepted the plaintiff's version of events to the versions put forward by the defendants and the witnesses called by the defendants, I have found that the first defendant Heath Robinson brutally assaulted and battered the plaintiff as claimed. I have also found that the second and third defendants were in breach of the respective duties of care they owed to the plaintiff.

I have found that the plaintiff's injuries were caused by both the assault and the battery committed by the first defendant, as well as by reason of breach of duty of care on the part of the second and third defendants. I have found that in the relevant events there was no contributory negligence on the part of the plaintiff. I have found that in addition to an entitlement to compensatory damages as against each defendant the plaintiff is also entitled to an award of exemplary and aggravated damages as against the first defendant.

On an apportionment of the damages between the defendants I find that the second and third defendants are entitled to contribution from the first defendant to the extent of seventy per cent of $922,394, namely $645,675.80.

The following 11 witnesses gave oral evidence on the liability issues:

Witnesses in the plaintiff's case on liability (a) The plaintiff, Graham Hadaway;

(b) Mr Joshua Drum, an acquaintance of the plaintiff who was present in the hotel earlier in the evening. He gave evidence concerning some earlier interchanges he said he had observed to have occurred between the first defendant and the plaintiff whilst they were in the hotel;

(c) Mr Michael Black, the proprietor of a nearby motel who said he was an eyewitness to the claimed assault on the plaintiff and to the immediate aftermath of the assault;

(d) Mrs Kathleen Black, who, with her husband Michael Black, was the co-proprietor of a nearby motel. She said she was also an eyewitness to the assault;

(e) Mr Richard Jennings, an expert security consultant retained by the plaintiff's solicitor. Mr Jennings gave evidence on liability issues concerning the second and third defendants;

Witnesses in the first defendant's case on liability (f) The first defendant, Heath Robinson denied assaulting the plaintiff;

(g) Mr James Carroll, a former friend of the plaintiff and a friend of the first defendant. He gave evidence of a conversation which he perceived to be an admission against interest allegedly made by the plaintiff concerning the event in question;

(h) Mr Daniel Miller, the bar manager formerly employed by the second defendant. His evidence was directed to events he said he had observed to have occurred within the hotel. His evidence was also directed to the work system within the hotel on the evening in question;

(i) Mr Christopher Webb, who said he was an eye witness to the events. He was a friend of the first defendant;

(j) Mr Ricky Nelson, a security guard who was on duty at the second defendant's hotel on the night in question;

Witnesses in the third defendant's case on liability (k) Mr Lindsay Archibald, the third defendant. His evidence concerned the hotel work system and his stated knowledge of the events;

In addition to evidence from the plaintiff, the following 5 witnesses gave evidence on damages issues: (a) Miss Erica Hadaway, the plaintiff's daughter;

(d) Mr Peter Badich, a friend of the plaintiff who had given the plaintiff an opportunity for a trial of work on a building site after his recuperation;

(e) Dr David Millons, an orthopaedic surgeon retained by the plaintiff's solicitor. His evidence was directed to matters of diagnosis, prognosis and work fitness;

Various medical records were tendered relating to both the plaintiff and the first defendant. A number of statements, plans, photographs and some limited video footage were tendered concerning the events in question. In addition, there were reports tendered from the various treating and assessing medical and allied examiners.

The nature and extent of the credit issues raised in the proceedings has made it both relevant and necessary to review and set out in some detail the background to the relationship of the parties. In this regard the conflicting bodies of evidence have been summarised before undertaking the task of dealing with credit challenges to enable a determination of the central issues that call for decision in the proceedings.

There was no dispute over factual matters concerning the plaintiff's background, the situation of the first defendant and the history of the relationship between the parties. I set these matters out in the ensuing paragraphs before setting out and summarising the disputed matters relating to the issues to be determined.

The plaintiff grew up in Sydney and left school in Year 8 just before the age of 15 years without obtaining the school certificate. He described himself as being hopeless at school and this led to his decision to leave school early to find work. He said he did not read or write well. He initially obtained employment with the railways as a station assistant for two years. He then moved to Coffs Harbour to be near his brother who worked in the building industry. There, the plaintiff also obtained work in the building industry. He initially worked as a labourer and gradually began to accumulate trades-on-site experience and skills with formwork, carpentry, steel fixing, concreting, and painting. He also attended courses at TAFE and obtained qualifications in scaffolding and rigging.

The plaintiff enjoyed being able to do all the hands-on physical work that was required to be carried out on a building site. His pre-injury employment was described as foreman, leading-hand carpenter and concretor. He was employed in these capacities by a company known as AR & MEC Whalan Pty Ltd. He had been in steady employment in the building industry with that company and its predecessors for about 12 years before his injury. This work required him to be agile on his feet and to be able to clamber about on uneven ground as was common on building sites. His pre-injury working days were full. He earned between $800 and $900 per week gross depending upon whether or not he worked overtime.

Before his injury the plaintiff was physically fit and able-bodied. He had involved himself in outdoor sports and leisure activities such as ice-skating, motor-bike racing, swimming, rock and beach fishing. Before his injury he also used to train for physical fitness. He did this with his eldest daughter using a home gym punching bag and boxing pads.

Some 18 years before the incident the plaintiff had been involved in a motor vehicle accident. That accident had caused him to experience some neck and shoulder problems for which he occasionally took painkillers. He occasionally sought chiropractic adjustments to his back and neck when it got sore and tight. Over the last 18 years he estimated he had about 30 such episodes of such treatment. Other than having to take a week off from his work for neck problems about 12 years before the trial, the plaintiff said that the previous injury did not interfere with his ability to carry out the full duties of his pre-injury work.

The plaintiff's personal circumstances were that he was divorced from his wife with whom he has three children. He was also estranged from his subsequent de-facto wife. The plaintiff has always worked, except for a relatively brief period of about 2 years during his marriage following the arrival of twins who had special needs, one of whom was disabled with cerebral palsy and the other by hydrocephalus. During that time the plaintiff was in receipt of a pension whilst he helped to care for the twins.

After his divorce the plaintiff remained living and working in the Coffs Harbour area but he no longer owned his own home. He lived in rental accommodation in various locations in the area. It was in this connection that the plaintiff met the first defendant.

Counsel for the plaintiff tendered and then reviewed with the plaintiff, the antecedents of his previous and relatively minor involvement with the police and the criminal courts system. It is not necessary to here recount the detail of that evidence although I will consider it when dealing with credit issues.

The first defendant, Heath Nikolas Robinson was born in 1970. He had a background of working in horticulture. He had worked as a security guard in the Coffs Harbour area. He was in receipt of workers' compensation benefits at the time of the incident and at the time of the trial. He was aged 34 years at the time of the incident and was aged 39 years at the trial. Portions of his medical records were tendered in evidence. These records gave some insight into his state of health at the time of the incident. In the ensuing paragraphs I will review those records as it was suggested that they were relevant to determining some of the facts that were in dispute between the parties in the proceedings.

The first defendant's medical records disclosed a background history of having been involved in multiple assaults, which included head injuries. One such assault, at age 19 years, involved him being hit on the head with an iron bar. This occurred whilst he was working as a security guard at the Heat Nightclub in Coffs Harbour. He had a fractured skull, jaw and had multiple teeth knocked out, along with other injuries. One of these head injuries has left him with post-traumatic epilepsy. His medical records show that in 2001 he had a left meniscectomy of the right knee for a medial meniscus tear. He was involved in various assaults in 2002 and 2003. He had a spondylitic neck condition that was diagnosed in 2003. He had a history of having a depressive anxiety disorder which was noted to have been present in October 2002. It appears from his medical records that he had also been the recipient of some professional counselling at some stage prior to the incident in question.

The first defendant was skilled and proficient in a number of martial arts and related sports. This included judo, Muay Thai kickboxing, karate and Tae Kwon Do for which he held a black belt grading. In 2001 and 2002 he had received a series of injuries in the course of his former employment as a security guard. Prior to receiving his injuries he had worked as a contracted security guard in the Coffs Harbour area and had in the past also carried out work as a security guard at the Hoey Moey Hotel. At the time of the incident in question he was on friendly terms with the hotel staff and with the security staff who were from time to time rostered on duty at the hotel.

In oral evidence the first defendant stated that his pre-incident head injuries had left him with frontal lobe brain damage. There was no medical evidence tendered to either corroborate or dispute that statement. A CT head scan taken at Coffs Harbour Hospital on 29 January 2008 did not disclose the presence of any brain abnormality in the first defendant however that does not necessarily exclude the presence of brain damage. In his oral evidence the first defendant made reference to having memory problems due to his previous head injuries. I accept his evidence that he has some brain damage as this seems plausible given the nature of the injuries he has described.

The second defendant company Cregan Hotel Management Pty Ltd has been the proprietor of the Hoey Moey Hotel, and other hotels, for many years. As the proprietor of the hotel the second defendant employed the third defendant as a licensee manager. The second defendant had contracted out to the fourth defendant the employment and deployment of security guards to manage the security arrangements at the hotel during trading hours.

The third defendant, Mr Lindsay Archibald, was employed by the second defendant as the licensee and manager of the Hoey Moey Hotel at the time of the incident, and for some time beforehand. At the time of the trial he had no current association with that hotel or with its proprietors. It appears he had been joined to these proceedings for a forensic purpose, as any potential personal liability on his part was covered by the provisions of s 3 of the Employees Liability Act 1991. It appears that he was joined to the proceedings by the plaintiff in order to render certain evidence of the events admissible as evidence in the proceedings.

The plaintiff and the first defendant had been acquainted with each other in the Coffs Harbour area for some years before the events in question and they had shared the financial obligations of their rental accommodation until interpersonal difficulties had arisen between them. Those circumstances led to a parting of the ways of friendship between them. In the evidence there was some controversy over the origin, nature and content of those difficulties, which I will consider in arriving at my credit findings.

There were many points of challenge made to the credit of the witnesses called to give evidence in the proceedings. In particular there were challenges to the credit of the plaintiff and the first defendant concerning the critical events. In addition there were some challenges of a peripheral nature which also had a bearing on credit, so for completeness, these require consideration in order to frame the context of the events in question.

The pivotal events concerned two events that occurred within the hotel premises in the late afternoon or early evening of 17 September 2004, and then subsequent events outside the hotel premises later that evening, by which the plaintiff came to be injured. Before analysing the disputed evidence concerning the pivotal events it is necessary to analyse and resolve the disputed assertions that concern the antecedent and peripheral events.

As between the plaintiff and Mr Robinson, those peripheral events concern the context of the friendship between the plaintiff and Mr Robinson, the disputed evidence concerning matters arising from their formerly shared living arrangements, the relationship between Mr Robinson and the Hoey Moey Hotel, the plaintiff's drinking and personal habits, Mr Robinson's martial arts skills and the plaintiff's skills in pugilism, whether or not Mr Robinson had told the plaintiff of a practice he and the third defendant had participated in at the hotel which involved customers being assaulted and the closing time of a nearby pizza shop.

With regard to the Hoey Moey Hotel and Mr Archibald, those peripheral events concerned an alleged earlier incident at the hotel which had occurred about a month before the events in question, and included allegations that Mr Robinson and Mr Archibald used to assault hotel customers. Then there were the events at the hotel on the afternoon in question that occurred in the lead-up to the plaintiff being injured.

I have described these peripheral events as being numbered 1 - 9, and I set these out in the paragraphs that follow.

Peripheral issue 1 : Friendship between the plaintiff and the first defendant

The plaintiff claimed that in the past there had been a close relationship of friendship between himself and the first defendant. In aid of this view the plaintiff described a period where, during the time they lived at the same address, he had helped the first defendant out by looking after him, doing his washing, cooking and housework whilst the first defendant was recuperating from the physical effects of a work related injury.

Whatever state of friendship might have existed between them in the past, the first defendant made little acknowledgment of a past friendship. In his evidence he made a number of derogatory references to the plaintiff's character and concerning his view of the manner in which the plaintiff conducted himself.

He stated that the plaintiff "doesn't really [have] much morals, this bloke, and [he is] known for it." He made remarks that had a tendency to belittle the plaintiff, stating the plaintiff had on a critical occasion been screaming "in a little girl's voice" and behaving "totally psycho … like a child having a temper tantrum." He referred to the plaintiff as being a hypocrite with regard to a disputed interchange between them. He claimed the plaintiff kept a supply of cannabis and claimed he had done the plaintiff a favour by "taking the rap" for possessing that cannabis and suggested things could have been worse for the plaintiff if the police had "found the big bag."

He also claimed the plaintiff had been slandering him by saying he was a paedophile and had sold drugs to children. He claimed the plaintiff "was pretty well known for not telling the truth." He also agreed that he had probably told people at the Hoey Moey hotel that the plaintiff was a thief. When cross-examined about the critical events in the proceedings, he made reference in his evidence to a rumour that the plaintiff had been reputedly under the influence of "ice".

Within the first defendant's evidence there was no vestigial hint of a past friendship between himself and the plaintiff. It was clear that by the time of the trial, whatever friendship may have existed between them, it was well and truly over.

Peripheral issue 2 : Disputed evidence over earlier living arrangements of plaintiff and first defendant

The plaintiff stated that in late 2003, and after having been acquainted with the first defendant for some time, he acceded to the first defendant's request that he come to stay with the plaintiff for a few months at the house the plaintiff was renting. The plaintiff was living there with his daughter who was then preparing for the HSC examinations that she was planning to undertake in the following year.

The plaintiff stated that interpersonal problems arose in the course of them sharing accommodation. The plaintiff said that his daughter and the first defendant did not get on well and there was a dispute over rental monies owing. In those circumstances the plaintiff said he had asked the first defendant to leave the shared accommodation. The plaintiff's daughter was called to give evidence but was not cross-examined to any contrary effect.

The plaintiff said that when the first defendant refused to leave the premises after being requested to do so, the plaintiff terminated the lease to force the issue. The plaintiff stated that the first defendant became upset at this and reacted by then causing considerable damage to the walls and fittings of the rented premises. In addition the plaintiff said that when the defendant left he took away a quantity of the plaintiff's household goods, power tools as well as not paying his share of the rent, to the extent of some $1,200. The plaintiff claimed that when he subsequently tracked down and contacted the first defendant by telephone to discuss these issues he was verbally abused by the first defendant who then hung up the telephone and refused to speak to him further.

After the acrimonious parting of ways with the first defendant the plaintiff and his daughter moved into a rented apartment in a security building situated across the road from the Hoey Moey Hotel. The plaintiff said that after moving to live near the hotel he then frequented it occasionally as his local hotel.

The first defendant's evidence portrayed a very different picture of the time when he lived at the plaintiff's premises. The first defendant acknowledged that when he was living at the plaintiff's premises he "drank a hell of a lot." He said that he had a number of grand mal seizures in that period which he put down to dehydration following the consumption of alcohol in the context of his brain injury and taking anti-convulsant medication. Following one of these episodes the police were called because he was trying to enter a neighbouring house by mistake. On that occasion the police cautioned him as he had been smoking marijuana which he claimed belonged to the plaintiff. He later conceded he had used cannabis for the relief of pain.

The first defendant also claimed that during the time they shared accommodation there were occasions when he would give the plaintiff his share of the rent monies only to find later that the money had been gambled or otherwise spent without paying the rent. He also claimed the plaintiff was often quite aggressive and was prone to losing his temper over matters that had nothing to do with the first defendant.

The first defendant claimed he had set an honesty trap for the plaintiff by placing a $20 note in a shirt he had placed in a washing pile. He said of this "when I came home it was gone it was gone, so I knew he had taken it. I'd set a trap for him." He claimed that when he confronted the plaintiff over this there was a "little fight" when the plaintiff attacked him, and then the plaintiff started to cry and profusely apologize over the matter. The plaintiff denied these assertions.

The first defendant also denied damaging the rented premises in the manner claimed by the plaintiff. Instead, he claimed that the plaintiff had kicked a hole in the wall in anger and had then asked him to be a false witness for a worker's compensation claim to state he had seen the plaintiff injure his leg after hopping out of his work truck when such an event had not occurred, a request with which he stated he had refused to comply. The plaintiff denied these assertions.

The first defendant claimed that the reason he moved out of the accommodation he shared with the plaintiff concerned an episode when he found a syringe with a needle attached in the bathroom and which he assumed was heroin. He claimed that he confronted the plaintiff over this the following day. He said "We had a bit of a fight. I won that fight and I left the next day." He stated that when he left he could not fit all of his belongings into his car and when he returned the next day to collect the larger items he found they had all been chopped up. He also claimed to have left behind two large cupboards and a large set of coin operated scales. He also claimed the entrance door couldn't be opened because it was jammed on the occasion of that last visit to retrieve his belongings. He denied taking any of the plaintiff's belongings and denied owing the plaintiff any rent or anything whatsoever.

Whatever the true facts were I find that these circumstances had led to a considerable degree of deep-seated mutual ill-will between the plaintiff and the first defendant.

Peripheral issue 3 : First defendant's occasional prior employment at the Hoey Moey Hotel and his subsequent attendances there

The plaintiff stated he knew that previously, the first defendant had occasionally worked at the Hoey Moey Hotel as a security guard. The first defendant said he had not worked at the hotel for some years before the incident. The third defendant, Mr Archibald, also gave evidence to this effect.

The first defendant said that on occasion, around 2002, 2003 and 2004, he drank at the Hoey Moey Hotel, approximately once a week, or once every two weeks, after finishing work. He also stated that up until 2002 he had worked for the Hoey Moey Hotel as a security guard if they had a big band on, at which time he would run security for the big band. He stated that he knew the security people there as well as the licensee Mr Archibald, but added that this was just through work, not in a social setting. This history was relevant to an understanding of the evidence of Mr Archibald and the stance he took in the litigation.

Peripheral issue 4 : Plaintiff's pre-injury drinking habits

The plaintiff described how, before his injury, after a day's work it was his custom to bring home a 750 ml bottle of beer to consume with his evening meal but on Friday nights, after the week's work was done, he would consume greater amounts of alcohol at hotels, including the Hoey Moey Hotel, and at times, he would do so to the point of intoxication.

The first defendant painted a different picture of the plaintiff's drinking habits, as did other witnesses who were called by the defence. As to the events of the night in question the first defendant denied the plaintiff had said to him "I'm pissed and I don't want to fight you" but he did later assert that at the scene of the fight in the street the plaintiff "was so intoxicated he couldn't even stand up straight, and he kept falling over every time he tried to stand up." In cross-examination the first defendant stated that whilst still at the hotel the plaintiff "seemed to be off his face." Later in his evidence he stated that the reason he thought the plaintiff would not get up at the scene to fight him was "I thought he was too drunk and off his face."

Mr Daniel Miller the former bar manager of the Hoey Moey Hotel gave evidence that the plaintiff was a frequent visitor to the hotel and not just on Friday nights. He said there were occasions on which the plaintiff had to be asked to leave the hotel because of his aggressive behaviour and intoxication.

The plaintiff's pre-injury drinking habits were the subject of comment by medical experts whose opinions were tendered on damages issues. I will refer to this evidence in arriving at my damages findings.

Peripheral issue 5 : First defendant's skills in martial arts

The plaintiff stated that over the course of the time that he had shared accommodation with the first defendant in three different houses, he had observed the first defendant's proficiency at kickboxing. He said he had observed him training frequently with different kicking techniques, including side kicks, front kicks, sweep kicks and knee kicks capable of being delivered to any part of the body. He described the first defendant's forte as being a strong kicker. He described observing the first defendant practice kickboxing techniques known as Muay Thai whereby persons could be knocked to the ground and laid on their back by having their legs kicked out from underneath them.

The first defendant confirmed that he had been trained in martial arts. He said he had a black belt in Tae Kwon Do. He said he also had experience in Muay Thai which is an extension form of Thai kickboxing. He differentiated between Tae Kwon Do, which he described as a martial art and Muay Thai, which he described as a sport. He described himself a counter-fighter.

He initially denied that there was a black singlet level of proficiency in that sport. He stated his training was an eclectic combination. He stated that he had taught self-defence to women and children at PCY clubs in Coffs Harbour. He stated that he has represented Queensland in Muay Thai championships in Thailand. He took issue with the cross-examiner over whether there was a coloured singlet grading system of awards in Muay Thai, and in the process of that discussion, he demonstrated a consummate familiarity with these and similar activities where singlet gradings were made. He maintained his denial that he had ever told the plaintiff that he held a black singlet status in Muay Thai. Whatever the position was with gradings, it was quite clear that Mr Robinson was very proficient in martial arts based self-defence activities that involved kicking manoeuvres.

Peripheral issue 6 : Plaintiff's alleged skills as a pugilist

The first defendant claimed that on a number of occasions before the events in question, the plaintiff had represented himself to be an old style boxer. The plaintiff stated that before his injury it had been about 20 years since he had "thrown a punch in anger" although before his injury he stated that he did use a punching bag for fitness training.

The first defendant was asked questions about his discussions with the plaintiff concerning the plaintiff's experience in boxing. In what I considered to be a self-aggrandising manner, he took the opportunity to denigrate the plaintiff by implying that the plaintiff had overstated his proficiency and experience in boxing. This is evident from the following extract from his evidence : "Q. I'm going to come to the evening of this assault shortly, or the incident shortly. Prior to that, did you ever hear Mr Hadaway speak of or did he ever tell you about his ability as a boxer? A. He used to tell me quite often that he was from the old school and he was a great old-school boxer. He'd tell me all the time. At first I thought he was - at first I believed him, when I first met him, but as I got to know him more and more it became more evident that it wasn't true, but he used to play it up all the time, and tell me how he'd bashed people and had fights with all these big blokes, and his old-school boxing skills would get him through every time."

The first defendant also took the opportunity to convey the impression of being a superior fighter to the plaintiff, claiming to have beaten him and to have made him cry "like a girl".

Peripheral issue 7 : An incident at the hotel one month prior to the incident

The plaintiff stated that in 2004, about three to four weeks before his injury, he was at the Hoey Moey Hotel when he claimed to have been involved in an incident at the hotel which also involved two security guards, one of whom was Mr Ricky Nelson who also gave evidence in these proceedings.

The way the plaintiff described the incident was that he was in the hotel having a drink in celebration of the birthday of an acquaintance. He described having reached a state of having consumed too much to drink at which time he was asked to leave by security guards. He said he responded by saying he would finish his drink and then go but instead he was then grabbed in a headlock by a security guard. He claimed Mr Ricky Nelson started punching him in the head as he was being dragged out of the bar, through the beer garden and then ejected from the hotel.

The plaintiff claimed that on this occasion his house keys were taken from him and then thrown into the beer garden by the security guard who then invited the plaintiff to go and get them. The plaintiff said that he refrained from retrieving his keys on that occasion because he apprehended that to do so would invite a physical confrontation which would have provided an excuse for being punched by these persons. Instead, the plaintiff stated that he told these persons that he would go and wake Mr Archibald, the third defendant who was the hotel manager. The plaintiff said that as he proceeded to walk to the back of the hotel to do so, he heard his keys hit the road and land in the gutter after being thrown from the direction of the hotel. He said that he then picked them up and went home. He stated that the next day he complained to Mr Archibald about the incident, and stated that following this, he received an apology from these security guards at the request of Mr Archibald.

In their evidence, Mr Archibald and Mr Nelson denied the plaintiff's account of the described incident. Mr Archibald denied that the plaintiff had complained to him about being roughly treated by Mr Nelson and another security guard. He further denied telling Mr Nelson and another security guard to apologise to the plaintiff about their behaviour. He also denied having ever seen Mr Nelson behave violently towards a hotel patron at any time prior to the incident in question. Mr Archibald stated that prior to the events of the night of 17 September 2004, he had not had any dealings with the plaintiff.

Mr Nelson denied that there had ever been an occasion on which he had taken the plaintiff's keys from him and thrown them into the hotel grounds. He also denied that there had been an occasion when he had been required to apologize to the plaintiff. When asked whether he had previously had an altercation with the plaintiff, where he held the plaintiff in a headlock he answered "No, not, wouldn't know".

Mr Nelson agreed that if there had been an occasion on which someone had been asked to leave the hotel for causing trouble this fact would be written up in the incident book kept at the hotel. He also said that if there had been an occasion on which the plaintiff had been barred from the hotel some weeks before the incident in question, he was not 100 per cent sure whether this would have been written up in the incident book, but he agreed that it could have been. The incident book was not tendered at the trial.

Whilst these matters were peripheral, they provided a background to the plaintiff's history at the hotel and a possible explanation for Mr Nelson's position in the litigation.

Peripheral issue 8 : Allegation that first and third defendants had a practice of assaulting hotel customers

The plaintiff claimed that at some stage whilst he and the first defendant were sharing accommodation, the first defendant had told him that he, the first defendant and the third defendant, whilst ejecting certain customers from the hotel, would on occasion take them out of the view of security cameras, and the first defendant would hold them whilst the third defendant "would deal with them", a process which involved the third defendant punching these ejected customers. These assertions were denied by both Mr Robinson and Mr Archibald. Whilst this issue was of early peripheral relevance it was informative of the credibility tensions in the case.

Peripheral issue 9 : Closing time for a nearby pizza shop

The parties made an issue out of the closing time of the pizza shop that was near the hotel. This became an issue because of a dispute over the timing of relevant events. The first defendant referred to the pizza shop as generally closing at 8.30 to 9 o'clock as it was in a "pretty wild area." The plaintiff claimed he was going to get a pizza as he was too affected by alcohol to cook a meal. In my view, the issue of whether the shop was open at that time of night is a remote peripheral issue. The plaintiff could still have intended to go to the pizza shop in the belief it was still open. In my view the issue had no significant bearing on the credit issues calling for decision.

I now turn to the critical events of 17 September 2004.

Analysis of the evidence reveals that there were 8 events, that I will describe as critical events to distinguish them from the peripheral events, as having occurred on the afternoon and evening of 17 September 2004, and which required analysis. These events ranged from the events of the afternoon of 17 September 2004 before the plaintiff arrived at the hotel, to the plaintiff's presence at the hotel, the first claimed incident between the plaintiff and the first defendant at about 5.00pm on that day, a second claimed incident between them at about 5.30pm, the events occurring between 5.30pm and about 9.30pm when the plaintiff left the hotel, the circumstances of the plaintiff leaving the hotel, the circumstances of the first defendant leaving the hotel, the precursor to the physical altercation between the plaintiff and the first defendant and the detail of the altercation between them. It is necessary to review and analyse these events as a precursor to making findings on the credit issues that arise, and before dealing with the liability and damages that are required to be determined.

Background events of the afternoon of 17 September 2004

The plaintiff stated that on the afternoon of 17 September 2004 he had finished his work at 2.30pm and had attended a monthly "tool box" meeting at his work place where the custom was to take to opportunity to vent with colleagues and the employer any matters of workplace concern. He said this custom would occur over the course of a few drinks at the work site.

The plaintiff stated that on this occasion, over the course of an hour or so, he had consumed about four or five stubbies which I infer from the description, to have been beer. The evidence did not indicate whether or not this was full strength beer. The plaintiff said that following this meeting he went home, showered and then went to the Hoey Moey Hotel, arriving there at about 4.30pm. The plaintiff said the Hoey Moey Hotel had become his local hotel after he had moved into the district some months earlier. He said that one of the attractions of the hotel for him was that it had what the plaintiff considered to be some good meat raffles on Fridays, and he said that on this occasion, he wanted to get there early enough to get some raffle tickets.

Critical event 1 : Plaintiff's presence in the bar at the hotel

The plaintiff agreed that on the afternoon of Friday 17 September 2004, in addition to going to the Hoey Moey Hotel to participate in the Friday meat raffle, he also went there with the intention of remonstrating with the first defendant concerning the outstanding issues that remained between them, including money issues. He said he had not seen the first defendant since the alleged theft of his tools and since their parting on the occasion on which the plaintiff's rented premises were damaged. The plaintiff stated that he arrived at the hotel he sat in the bar and drank beer. He said that in the course of the afternoon he had made a point of telling anyone who knew the first defendant and who was prepared to listen, that the first defendant was a thief who had ripped him off. Clearly, the plaintiff did so with the intention of embarrassing the first defendant amongst his friends, acquaintances and former co-employed security guards at the hotel.

The plaintiff described how, when he arrived at the hotel he sat in the main bar area and bought a beer, following which he sat down on a conventional bar stool at a high rectangular bench table. He said he was seated and had conversed with an employee of the hotel, a barman named Siosaia Militoni who was on a rest break from his duties. At this time the plaintiff also described the presence of Mr Danny Miller some 10 feet away behind the bar serving drinks. Mr Miller was the duty bar manager of the hotel on that night. The plaintiff said he also saw that an acquaintance, Mr Joshua Drum, was also present in the area.

The description of the subsequent events by the plaintiff, the first defendant and the other witnesses varied to some degree. This could have been due to the effects of alcohol consumption on the ability to reliably recall events, or the usual limitations on accurate recall over time, or credit issues, or a combination of these factors.

Critical event 2 : First claimed incident inside the hotel involving the plaintiff and the first defendant at about 5.00pm

The plaintiff stated that at about 5.00pm on the afternoon of 17 September 2004, whilst he was seated on a bar stool talking with Mr Militoni, he saw the first defendant enter the main bar area from the beer garden. He said the first defendant walked straight up to the side of the table where Mr Militoni was seated, leaned across the table and grabbed the plaintiff by the left side of the shirt collar with an aggressive lifting movement that involved the lifting of his shirt with a clenched fist, so as to bring the first defendant's grabbing hand up into contact with the plaintiff's face.

The plaintiff said that the first defendant then started to yell and scream at him words to the effect: "You fucking lying cunt. Let's go outside and sort this out. … You're a fucking liar. Come outside and we'll sort this out, you prick" and other words to the same effect. With this, the plaintiff alleges that the first defendant then smacked him and tried to drag him off his seat towards the outside of the hotel. The plaintiff claims that during these events he said to the first defendant "Piss off, you thief, leave me alone."

The plaintiff claims that these events occurred within the immediate presence of Mr Militoni and the more distant presence of Mr Miller. The plaintiff said he believed that this interchange was loud enough to be heard by the bar manager, Mr Miller. The plaintiff stated that at this stage Mr Miller, Mr Militoni, Mr Nelson and another unnamed security guard had rushed over and had managed to separate them. The plaintiff said that at this time, the first defendant variously addressed both the hotel staff and the plaintiff with words to the effect "Come on, throw us both out. You're a fucking liar, come on outside, I'm going to punch your head in". The plaintiff said the first defendant then addressed the hotel staff and security guards present by saying words to the effect "Come on, throw us both out so I can just punch his head in when we get outside". The plaintiff described how Mr Militoni had then placed himself between the plaintiff and the first defendant whilst Mr Miller then came over from the bar and separated them, requesting that there be no fighting in the hotel.

The plaintiff said he responded by saying "Look, I don't want to fight." The plaintiff stated that the first defendant's conversation was conducted in a very loud manner that he believed could be heard throughout the hotel. The plaintiff said the first defendant kept on calling him a "fucking liar" and the plaintiff kept on calling the first defendant a "fucking thief." There had obviously been a joinder of issue on these matters and clearly, feelings were running high.

The plaintiff stated that the hotel staff who had intervened at this point, had said words to the effect : "Well, you're going to have to be separated then." The plaintiff said these intervenors then encouraged him to go to the bistro area of the hotel and he said he then obliged. The plaintiff said he was then asked by Mr Miller to go to the bistro area. The first defendant then walked over to the pool table area. The plaintiff stated that the first defendant then stayed in the main bar to maintain a distance of separation between them. The plaintiff said he remained in the hotel before leaving some hours later.

The plaintiff described how during the course of these events, the first defendant continued to verbally abuse him in a very angry manner, in the style and with the content previously cited. The apparent expectation of the hotel staff at that time, in arranging this separation of the parties, was to just let everything settle down.

The plaintiff described how, whilst he and the first defendant maintained this distance of separation, he was in the bistro area for about a further 20 minutes drinking with a few other people he knew. He described how he had looked through a gap in the partition between the bistro and main bar area and saw his acquaintance, Mr Drum.

The plaintiff said that he then entered the main bar area in order to speak to Mr Drum who had been playing pool with Mr Christopher Webb who, as it turned out, was a friend of the first defendant. The plaintiff stated that when he had made his approach for this purpose and started to converse with Mr Drum, he saw no risk or problem in doing so.

Mr Joshua Drum, an acquaintance of the plaintiff, was a witness to this incident. At the time of the incident Mr Drum was aged almost 19 years. At the trial he was aged 24 years. He was a tradesman carpenter. He had not met the first defendant before the incident in question. He said he was acquainted with the plaintiff but had never worked with the plaintiff. He said he had witnessed two incidents within the hotel premises and which involved the first defendant and the plaintiff, which he estimated to have occurred some 10 to 20 minutes apart.

Mr Drum's description of the first claimed incident within the hotel premises involving the plaintiff and the first defendant, was in the bar of the hotel. He said that he witnessed an altercation in which the first defendant had grabbed the plaintiff across the table. He described this as being by the scruff of the neck, by which he indicated a movement of grabbing and drawing together in his hand the front of his shirt and lifting the shirt in an upward movement. He said the first defendant offered for the plaintiff to go "outside to sort out whatever their drama was". I take Mr Drum's description of this event to be his interpretation of the event. He said the plaintiff had declined this offer. He said the hotel employee who was present when this exchange occurred had separated them. He did not know where the plaintiff or the first defendant went within the hotel immediately after that incident.

There was some minor time discrepancy in Mr Drum's account which was not all that unexpected as he would not have been expected to be keeping accurate track of time whilst drinking in the hotel.

Some 12 weeks later, on 11 December 2004, Mr Drum gave a statement to the police which was tendered as Exhibit "L" in these proceedings. In cross-examination, counsel for the first defendant suggested to Mr Drum that the shirt grabbing incident he had described in his evidence had not happened or alternatively, that Mr Drum could be mistaken about its occurrence. Mr Drum did not accept those propositions. In fact his statement to the police, Exhibit "L", was consistent with his oral evidence. That statement described the first defendant as having grabbed the plaintiff roughly by the front of his collar and inviting the plaintiff to go outside to "…sort it out…"

The first defendant's account of the first incident in the hotel was somewhat different to that of the plaintiff. He said that he arrived at the hotel with Mr Christopher Webb at about 4.30pm or 5.00pm. He gave the following account of his arrival: "Q. When you arrived, what did you do? A. We started - when I first walked through, Graham was sitting down next to Saia, and as I walked past, he just started yelling out, screaming, "You're an effing thief, you effing C, you effing this - you dog C", all this carry-on. I stopped, looked at him and said, "You're the effing C." I said, "Snap out of it and grow up", and I kept walking on. I walked inside to the pub, and then we - Chris and I got a beer each. I think I got - I would have - I would have got a schooner of New, and we went and started to play pool."

The first defendant said that the foregoing account of the interchange between himself and the plaintiff had occurred from a distance of about 6 or 7 feet between them. He denied there was any physical contact on that occasion. He said that he and Mr Webb then played a number of games of pool. He said that during this time there were a number of occasions on which the plaintiff allegedly threatened him, both by words and by gestures. He described those occasions in the following terms: "Q. What occurred then? A. We just played pool for a few times. Graham started carrying on. He was sitting at - we were playing pool. Further along the bar, there was a table with some people. He was hanging on with them, and he just started threatening me, doing signs like this to me.

Q. You're running your index finger across your neck, under your chin. A. Yeah. He did that about - numerous times - more than five times. Once he started to get really loud, he came over to me, had an argument, and I think it was Danny or Ricky Nelson, came over and told him to - told us both to settle down and we were separated. I was told to stay on that side of the bar, he was told to stay on the other side of the bar, and if anyone crossed back over, they'd be both - I'd be told to leave, and I assumed that he'd be told to leave, but I was told that if I went on the other side of the bar I'd be asked to leave.

Q. How long had you been there at this stage, when this happened? A. There was quite a few little altercations through the afternoon, from 5 till 9, but - sorry, say it again, the question?"

The first defendant then described an alleged further incident when the plaintiff allegedly again re-entered the main bar of the hotel from which he had been barred and issued him with threats and insults. He described this in the following extract from his evidence: "Q. Where was he in relation to you when you saw him? A. He was at the other end of the bar, but he's just, he started to scream at me. He was with a few other blokes and he was saying, "We're going to kill you", and then he said, "I'm going to fuck your mother", and at that point, I walked over to him and slapped him in the face.

Q. And what did he do? A. At first, he was asking me for a fight, and then when I slapped him in the face, I grabbed him by the collar and pulled him and he just pulled out of it and started shrieking and just turned in, just started shrieking and trying to get out of my grip, and then got out of my grip. As soon as he got out of my grip, he just started yelling and screaming."

The plaintiff denied making threats against the first defendant's mother, and he denied threatening to kill the first defendant.

Mr Miller was the bar manager rostered on duty on the night in question. He said he had held that position for the previous four years. Mr Miller said that in the past he had worked with the first defendant at the Heat Nightclub in Coffs Harbour but he did not mix with him socially.

By way of background, Mr Miller said he knew the plaintiff as a customer of the hotel, and described him as attending the hotel quite frequently on nights other than Friday nights, staying for a few hours. He described the plaintiff as having in the past, that is, before the incident in question, shown drunken and aggressive behaviour, necessitating him being asked to leave on account of his intoxication and aggression. Given the polarisation of the evidence I considered it necessary to view that evidence with caution when assessing the credibility of testimony.

Mr Miller gave limited evidence in relation to this first claimed incident because of the way in which he recalled the events in question. He agreed that on the occasion in question it was a busy Friday night of trading, and he had the responsibility of running the bar and the staffing, and had other things to do rather than just keeping an eye on the activities of the plaintiff and the first defendant. It may well be that for this reason he may not have been in a position to observe all of the relevant interchanges between the plaintiff and the first defendant. He said that during the evening in question he had seen a verbal altercation between the plaintiff and the first defendant. He described it as a heated discussion. When asked whether he had heard the words used he said the plaintiff had said something like "the dog c, something like that, thief."

Mr Miller described how, at his request, he saw the plaintiff move to the other side of the bar where he remained. Mr Miller also described the plaintiff as having later approached him to ask for permission to return to the front bar. Mr Miller said that he declined that request and did not see either the plaintiff or the first defendant move from their respectively assigned areas within the hotel premises.

He described the policy of the hotel concerning the behaviour of security guards towards patrons as being "a hands-off approach, sort of, verbal judo. We'd try to get them out verbally, yeah."

In his evidence given in cross-examination, Mr Miller denied that whilst he was behind the bar on the evening in question there were a number of verbal altercations between the plaintiff and the first defendant. He also denied that on two such occasions, one being at about 5.00pm and the other at about 5.30pm he heard and saw the first defendant behaving in an aggressive and threatening manner to the plaintiff so that he had to get involved in separating the two at both 5.00pm and at 5.30pm. He also denied hearing the plaintiff decline an invitation from the first defendant to the effect that they go outside of the hotel for a fight. He said he expected that such an incident would have been logged in the incident book that was kept behind the bar, and which was accessible to all staff.

I shall return to Mr Miller's evidence in summarising and reviewing a later or second claimed incident in the hotel, and which involved both the plaintiff and the first defendant.

I was informed that Mr Militoni was not available to give evidence. The parties agreed that no adverse comment would arise from this fact. The second defendant tendered a brief statement that Mr Militoni had given to the police on 28 December 2004 : Exhibit D2.2.

In that statement, Mr Militoni recalled walking past the plaintiff and saying hello to him. He also stated that he recalled seeing the first defendant walk past the plaintiff and say "Stop carrying on", to which the plaintiff allegedly said "Bring it on, you're a thief, I'm going to smash you", to which the first defendant allegedly responded to the plaintiff with "Bring it on, bring it on". In his statement Mr Militoni said that he told them both to calm down.

A transcript of the evidence given by Mr Militoni at Coffs Harbour Local Court on 4 November 2005 was tendered in evidence : Exhibit D2.3. In that evidence he stated that he had not seen the first defendant slap or have any contact with the plaintiff during the verbal interchange he had described.

The unavailability of Mr Militoni to give evidence meant that some discrepancies in the respective recollections of the witnesses to the third critical event could not be explored in more detail for clarification purposes.

Critical event 3 : Second claimed incident at about 5.30pm involving the plaintiff and the first defendant

The plaintiff claims that after he had gone over to the bar area from the bistro area and whilst he was speaking to Mr Drum, the first defendant "came flying" over to the pool table near where they were standing and started to abuse the plaintiff again in an angry manner saying words to the effect "Fucking, we've got to sort this out. You're a fucking cunt. I'm going to get you. Fucking, come outside, I'll kill you." The plaintiff said that at this stage, he replied to the first defendant with words to the effect "Fuck off, I don't want to fight you."

The first defendant's evidence is derived from two sources. There was no contemporaneous statement from the first defendant as to the events of 17 September 2004. He had declined to be interviewed by the police when he was arrested on 23 November 2004 : Exhibit "R", p 2 para 16. He gave some evidence of the relevant events when he testified at Coffs Harbour Local Court on 4 November 2005 in relation to the charge that had been laid against him of assault occasioning grievous bodily harm to the plaintiff : Exhibit "U".

In his evidence in these proceedings, the first defendant stated that an incident occurred about 2 hours after he had arrived at the hotel. In that incident he claimed there was a "little altercation" in which the plaintiff was ejected from the hotel after re-entering the bar area from which he had been previously instructed to stay away. When the first defendant was asked to clarify the timing of these events there was some confusion in his description of the timing as to when the plaintiff was ejected from the bar area of the hotel. In answer to a leading question, the first defendant had agreed that this had occurred at about 6.00pm.

The first defendant's acquiescence to the time being about 6.00pm may or may not have been correct, having regard to other described events, notably the timing of the departure of Mr Drum, who left before the plaintiff was ejected. He had earlier stated he thought the plaintiff had been ejected from the hotel at about 6.00pm. He claimed that the plaintiff then re-entered the bar area about an hour to an hour and-a-half later, when he was ejected from the hotel by Mr Nelson, as the following extract of the first defendant's evidence discloses: "Q. What happened before he was walked out? Did he say something to you or did you say something to him, or what happened? A. He was just, keeps calling me a dog, c-u-n-t, f'n thief, f'n thief, basically everything that I knew he'd done to me, he was accusing me of, and yelling it out very loud, very aggressive, aggressively, and he kept saying he was going to kill me.

Q. This happened at about 6pm, is that what you say? A. Yes, that could be about right.

Q. So, he was saying that to you. How far from you was he when he was saying that to you? A. At that stage, he snuck around right behind, he was right behind me, so I turned around and, pretty much, the security was onto it then before anything could happen, and he left.

Q. Who was onto it? A. I think that was Ricky Nelson.

Q. Did someone - did Ricky Nelson say something? A. He said, "Righto hoon, you've had enough, time to go, you've blown it", something to that effect, and then just walked him out. Raymond walked out with him, Matt [an erroneous description for the plaintiff] was yelling and screaming and, quite obviously, didn't want to go.

Q. Walked out from where? A. From the, the pool table on my side of the bar.

Q. To where? A. Through the bistro and out through the front of door, of the other door, not the beer garden door, but the more northern, northern entrance.

Q. Was there - where was Chris Webb at this stage? A. Chris was playing pool with me, yep, at the pool table.

Q. Was there any physical contact between you and Graham Hadaway at that stage? A. Not at that stage, no.

Q. When is the next time you saw Graham Hadaway after that? A. Didn't hear of him. I thought he'd, I assumed he'd been gone home, because he lives across the road, and about maybe an hour, an hour and a half, it's hard to say the time, but it was a fairly good chunk of time."

In the first defendant's evidence at Coffs Harbour Local Court on 4 November 2005, he said that on the day in question, between the time he arrived at the hotel and the time he had left, he had consumed a couple of middies of beer and a couple of schooners of beer. He stated that he was not much of a drinker.

In his evidence given in the Local Court proceedings on 4 November 2005, the first defendant described the plaintiff as being the one who had first grabbed at his, that is, the first defendant's shirt, resulting in a scuffle between them, which led to the first defendant then grabbing the plaintiff's shirt. The precise detail of that account, notably the account of the plaintiff having grabbed the first defendant's shirt first, was not put to the plaintiff in cross-examination in these proceedings.

Mr Drum said that he left the hotel at about 9.00pm on that evening and had no direct knowledge of subsequent events in which the plaintiff had been ejected from the hotel. It is clear from this evidence that the plaintiff was ejected from the hotel after that time.

Mr Miller said that according to his recollection, there had only been one argument between the first defendant and the plaintiff on the night in question, and it was on that occasion he had broken up the altercation and had parted them. On that occasion Mr Miller described the physical attitude of the first defendant at the time of the parting of the two of them as being in a submissive position, with his open hands at chest height pointing upwards and "sort of moving away." Mr Miller said he was not close enough to hear the whole of the conversation, and said he did not hear the first defendant say anything by way of verbal exchange with the plaintiff when he was close to them. He said he had only heard the plaintiff, and stated there were no loud voices.

Mr Miller also said he only heard the plaintiff speaking, and he said that he had formed the opinion the plaintiff was the aggressor and was swearing. He said he had observed the plaintiff and the first defendant to have been engaged in a heated discussion, an observation which seemed to be at odds with his observation that there were no loud voices. Later in his evidence, Mr Miller denied there was a loud argument between the first defendant and the plaintiff.

Mr Miller said that in response to these events, as bar manager, he moved over to where they were, and pulled them apart. From this description of having to pull them apart, I infer there was some aggressive physical contact between the plaintiff and the first defendant, or at the very least, the risk of same occurring due to a close physical proximity whilst in heated discussion.

Mr Miller said that he had left the first defendant in the front bar where he had been playing pool, and that he had asked the plaintiff to go to the other side of the bar if he wanted to stay in the hotel. He said that after he had separated them, he then asked the security personnel to ensure that the plaintiff and the first defendant remained on separate sides of the hotel bar.

Mr Miller said his own hearing was very good. He said he did not hear the plaintiff say to the first defendant words to the effect of "I'm going to fuck your mother." He also denied seeing the first defendant move quickly across to the plaintiff and either slap him across the face, grab him by the collar or drag him off his stool or out of the hotel.

Mr Miller denied the proposition that he had not only seen, but had also heard, the first defendant behaving in an aggressive and threatening manner towards the plaintiff at about 5.00pm and again at 5.30pm on the night in question. He further denied that he had become aware of these two verbal altercations and that he had been involved in separating the pair on both of these two occasions. He specifically denied that he had first hand knowledge that the first defendant had slapped, grabbed and attempted to drag the plaintiff off his bar stool, but agreed that both he and Mr Militoni had the responsibility to respond, and to intervene, if these events had occurred within their view.

He agreed that if he had seen the altercations described above, this would have required prompt and decisive action by the hotel staff. He agreed that proper practice in such circumstances would have been to ensure the first defendant left the hotel and went well away from the hotel and the vicinity of the area. He explained that this meant ensuring the person ejected was not hanging around the front and making sure they either got into a taxi or got on their way and away from the front of the hotel. He further explained this probably meant a 300 metre perimeter away from the hotel. He agreed that the purpose of such a policy was to ensure that an ejected person who had threatened a patron was not just biding their time outside waiting for the intended victim to leave the hotel.

Mr Miller also agreed with the proposition that if there had been an altercation between patrons in the hotel, and a violently disposed person involved in such an incident had remained in the hotel, and if in those circumstances both he and the victim continued to drink, this situation would serve to increase risk because the violently disposed person would be able to drink more and become more disinhibited and angry. He explained this was the reasoning why a person deemed to be an aggressor would be removed from the hotel immediately. He explained that if the incident had involved two people who had acted in a verbally violent way, the tendency would be to exclude both of them from the premises, ensuring they left separately, making sure they either got into a taxi, or had cleared a 300 metre perimeter radius from the hotel.

Mr Miller agreed that if an aggressive confrontation between patrons had occurred, such as that described by the plaintiff, and this occurred to the knowledge of hotel staff, then in any well-run hotel this would have required that the first defendant be excluded from the hotel for such behaviour. Mr Miller also agreed that in circumstances such as those described, if these events were brought to the attention of the barman, it would have been the responsibility of the barman to take steps of that kind to protect the person who was being manhandled in the manner described.

Mr Miller further agreed that in reasonably well run hotels in September 2004, as a matter of proper practice in the described circumstances, the persons employed at the hotel would make sure that the aggressor not only left the hotel, but also went well away from the hotel. Mr Miller also agreed that he would have expected someone in the position of Mr Militoni, on witnessing the slapping and grabbing incident earlier described, to eject the aggressor from the hotel and from the vicinity of the hotel, and then bring the matter to the attention of the bar manager.

Mr Miller stated, in my view reasonably, that the rationale for ejecting such persons from the hotel is that if they were to remain in the hotel, the risk to other patrons increased as the violent person may become more disinhibited or angry, notwithstanding any prevailing policies concerning the responsible service of alcohol.

Mr Miller agreed that in any reasonably well run hotel in NSW in September 2004, the best way of protecting the victim of aggressive behaviour was to exclude the aggressor immediately. He agreed that in the case of two persons involved acting in a verbally violent way, the tendency would be to exclude both of them, but not at the same time. He said that if the behaviour in question had occurred at the Hoey Moey Hotel, this exclusion would be arranged by making sure the persons concerned got into taxis or were away from the hotel by a radius of 300 metres. In the case of someone intoxicated and unable to defend themselves, Mr Miller stated that the hotel staff would make sure that the situation did not escalate to that further stage, and said that steps would be taken to ensure that they got home safely.

Mr Miller also agreed that if he or the barman had been aware that the first defendant had been behaving in the manner described by the plaintiff, he would have expected the first defendant to have been ejected from the hotel, especially in circumstances where one patron was threatening to bash or kill another patron. He agreed that if a barman had seen something that indicated a patron was potentially violent, that constituted information of a character that was important to pass on to other responsible staff members in order that there be collective shared knowledge of the events in case something else occurred.

Mr Miller agreed that it would not have been a proper response simply to separate the two men into different parts of the hotel on the basis that they agreed to stay in different parts of the hotel especially in the face of the aggression described. Mr Miller agreed the expectation was that incidents of the kind under consideration as described in the evidence would have been logged in the incident book which had ordinarily been kept on the premises at the time in question.

Critical event 4 : Events between 5.30pm and the plaintiff leaving the hotel at about 9.30pm

The plaintiff stated that after the 5.30pm or second claimed incident, he had remained in the hotel for about a further 4 hours and had left at about 9.20pm or 9.30pm. During this time he said he had consumed some further drinks. At the time of the claimed 5.30pm or second encounter with the first defendant, he described his level of intoxication at the time of leaving the hotel as being "four out of ten." At the time of leaving the hotel at about 9.30pm he described his level of intoxication as being "… double that, probably about eight". The plaintiff later further described that state as "… I was a bit, pissy, staggering a little bit I suppose, wobbling. I suppose that would be what I'd call eight out of ten."

The first defendant claimed that whilst he was in the hotel for about 2 hours and whilst he was at the bar area playing pool, the plaintiff was "carrying on" and had started threatening gestures towards him. He said this was by running his finger across his neck under his chin numerous times, which he explained to mean more than 5 times. He said the plaintiff was getting very loud and when the plaintiff approached him, he said a loud argument ensued. He said this required either Mr Nelson or Mr Miller to come over to separate them. He said that the plaintiff was told to go over the other side of the bar where the poker machines were, "which would have suited him", which I took to be a reference by the first defendant to the plaintiff having a predilection for gambling.

The first defendant said that about 20 minutes after that first incident in the hotel, whilst he was playing pool, he turned around and found that the plaintiff was right behind him. He stated that at this point the plaintiff was ejected from the hotel. His evidence in this regard was as follows: "Q. When did this occur? A. Probably about 20 minutes after that - that last little altercation, then he was asked, and he was removed. He was taken out, and he was kicked out, and he was out of the pub then, because he'd come onto our side of the bar. And it's a big, long bar that separates the whole hotel, and there's this one walkway to get through. I'm on this side, and he was on the other side, and he come back through, after being instructed not to again. And at that point he was ejected from the hotel."

It appears that the first defendant has conflated the first and second events in the hotel in his description. He said that the plaintiff had been ejected from the hotel at about 6.00pm. This may have been a reference to the plaintiff being ordered to go to the other side of the bar after the first incident. He said there was no further trouble until about 8.00pm, when he claimed that later that night, the plaintiff "turned up back inside the hotel". The first defendant claimed that the plaintiff appeared the other end of the bar, in company, and was making threats to him in the following terms: "Q. Where was he in relation to you when you saw him? A. He was at the other end of the bar, but he's just, he started to scream at me. He was with a few other blokes and he was saying, "We're going to kill you", and then he said, "I'm going to fuck your mother", and at that point, I walked over to him and slapped him in the face.

Q. Where was he, you said he, well, where was he in relation to you when he made his comment about your mother? How far away from you? A. Ten or about 10 feet or so, 10 or 12 feet.

Q. And I think your evidence is that you went over to him at that stage. A. Yes, I did.

Q. Where was that? What point? A. About half way down the bar on the proposed side that I was supposed to be on.

Q. All right. What happened then? A. He made a fool of himself.

Q. What do you mean by that? A. Well, at one stage he was sitting there screaming and threatening me, and saying these things and then at the other point, as soon as I engaged with him - like, he said he wanted to - he started to shriek and pretend, "No, I don't want to fight, I don't want to fight," and just totally reversed his attitude and that was it. I - he - I believe he was chucked - I think he was chucked out.

Q. No, no. What did you see? A. I just saw him carrying on and the security go over to him again and say--

Q. Did any - who? A. I think it was an Indian bloke. I do not know him. He was a new security guard. Skinny. I can't remember his name. And Ricky Nelson, I think, escorted him out.

Q. Were you standing near Graham, still, when the Indian fellow came over? A. No, nope. I'd made a fool of him.

Q. So, what did you see? You saw Ricky Nelson go to him, did you? A. Yep.

Q. You've mentioned something about an Indian bloke. What did you see him do? A. Saw both of them walk over because he was very, very loud and he was asked to leave. He left with them. He wasn't touched or anything but he left with them but he was protesting verbally, quite full-on."

The first defendant said that after the plaintiff had been ejected from the hotel he then completed his game of pool, spent 4-5 minutes at the toilet, and then left the hotel through the beer garden door in the company of Mr Webb with the intention of going either to his own home, or to the home of Mr Webb. He said he left the hotel at about 9.00pm.

When the first defendant was cross-examined by Mr Parker he reiterated that the plaintiff had threatened to kill him which led him to take the plaintiff on in the sense that he invited the plaintiff to fight him, and he said he slapped the plaintiff once in the face. He agreed that Mr Nelson then escorted the plaintiff out of the hotel whilst the plaintiff was protesting.

In answer to cross-examination by Mr Gross QC the first defendant had his attention drawn to his evidence of an alleged threat made by the plaintiff to the effect "I'm going to fuck your mother". He was positive the plaintiff had said that, as this was a threat on his mother's life. He agreed that it was "a fairly big insult". When he was asked whether he had mentioned this in the earlier criminal proceedings in the Local Court, in which he had been charged with assault occasioning grievous bodily harm to the plaintiff, he said he could not remember. There was no mention of that threat in Exhibit "U" which was the transcript of the first defendant's evidence in those proceedings.

I was informed that the first defendant was convicted of that charge on 19 December 2005, and that conviction was quashed on a papers review on 17 August 2006. Those events are not relevant to the determination of the issues in this case.

Mr Miller claimed that he had not seen either the plaintiff or the first defendant leave the hotel on the evening in question. I have already reviewed Mr Miller's evidence in which he described his decision to separate the plaintiff and the first defendant whilst they remained in the hotel. He also said he had never in the past seen the security guard Mr Nelson place the plaintiff in a headlock position, as had been alleged by the plaintiff.

The first defendant called Mr Ricky Nelson as a witness. Mr Nelson was on duty at the hotel as a security guard at the time the plaintiff left the hotel. He was aged 29 years at the trial. He had known the first defendant over the course of 10 years through his work as a security guard in Coffs Harbour in connection with his former training as a boxer at the gymnasium operated by the first defendant's uncle. He said that in 2004 he had regularly worked as a security guard at the Hoey Moey Hotel. He said that on the evening of 17 September 2004, he had commenced his duties there at about 8.00pm. His CV and background as a boxer, which post-dated the critical events, was tendered as Exhibit "E" in the proceedings.

Mr Nelson said that on commencing his shift he was informed by the bar manager, Mr Miller, that there had been an earlier incident at the hotel. Mr Nelson's understanding of that incident was that the plaintiff had allegedly threatened the first defendant, and this had resulted in Mr Miller taking action to re-locate them into separate places within the public areas of the hotel.

Mr Nelson said that during the course of the evening the plaintiff had come over from the bistro side of the bar where he had earlier been sent. Mr Nelson said of this that he told the plaintiff that he would "… have to stay on his side of the bar." He said that notwithstanding this admonition, he later saw the plaintiff in the bar area from which he had earlier been asked to leave in order that he remain on the bistro side of the bar area. Mr Nelson said that it was here that he saw the plaintiff threatening the first defendant. Mr Nelson said that it was this event that had led him to ask the plaintiff to leave the premises and then to escort the plaintiff to the door in order that he would leave the premises.

Mr Nelson gave some confused evidence about the plaintiff and the first defendant being in each other's presence shortly before he had asked the plaintiff to leave the hotel. That evidence was as follows: " Q. While you were present in relation to this latter incident, the one where you engaged in separating the men, or keeping them separate, you heard the end part of the conversation between them, did you? A. Basically. Well, when I walked around and I saw, Mr Hadaway had gone over to Heath. By the time I - when I saw it - I don't know how long he'd been there, basically. So, yeah, you could see it was the end, you could say it wasn't the end."

Mr Nelson described the plaintiff as allegedly making threats to the first defendant, as well as describing the plaintiff's subsequent ejection from the hotel, in the following terms: "Q. Did you hear him say something? A. Just that he was going to bash Heath and, yeah, just bash Heath. Threatened to bash him, kill him, just, yeah, drunk, angry stuff, I guess.

Q. What happened then? A. I walked him back through to the other side and told him he should call it a night.

Q. Did you see any physical contact between the two? A. No. Well, not that I remember anyway.

Q. When you say Mr Hadaway had gone to the other side of the bar, do you know how long he was on the other side of the bar before you saw him? A. Yeah, I'm not too sure on that one.

Q. So then what happened? A. Basically, I walked him through to the other side and asked him to call it a night, and then Hadaway left the hotel.

Q. You're going to have to speak up. You asked him to call it a night? A. Yep. And then, yeah, Hadaway had left the hotel."

Mr Nelson said that he observed the plaintiff to leave the hotel and walk across the road, a distance of about 10 metres. He said that after the plaintiff had left the hotel he went back to normal duties: "Q. Where were you when Mr Hadaway left the hotel? A. Basically just stood on the door, to make sure he didn't come back in. If he had have come back in there would have been a conflict, as he seemed to be aggressive.

Q. So what happened then? A. Nothing for a while, then I basically just went back to my normal duties.

Q. Where was he when you went back to your normal duties? A. Where was Hadaway?

Q. But where did you last see him before you returned to your normal duties? A. Walking across the road.

Q. How far away was that? A. What, 10 metres, if that."

Mr Nelson stated that after some time had passed following the plaintiff's ejection from the hotel, he heard some yelling from outside, coming from Park Beach Road. He said that when he looked in that direction he saw the first defendant walking down that road, and he said that he noticed that the plaintiff was doing the yelling. He said he observed the plaintiff and the first defendant were walking towards each other. He described the ensuing fight from beginning to end in the following terms: "Q. When you saw Mr Hadaway, what did you see him doing? He'd moved towards - what did he do? A. Come back up towards Heath and then, basically, I think it was just a bit more yelling and he's, like, sort of, I don't know, like, sort of, run towards Heath, and then, yeah, they just, sort of, grabbed each other. It looked like they were wrestling, fell to the ground.

Q. Did you see what was happening when they were wrestling on the ground? A. It was too far away.

Q. So, what happened then? A. Heath got up, walked off. I went in and notified Danny that there'd been a bit of a wrestle down the road.

Q. Did you see where Heath went? A. I think he went through a field, like, a vacant block or something to the left, down a street.

Q. To the left? A. Yeah, I think it was, yeah.

Q. So, you notified, I think you said, Danny? A. Yep.

Q. And then what happened? A. Danny - Danny went down there.

Q. Did anyone go down there with Danny? A. Lindsay might of, yeah, I think Lindsay did.

At a glance

Court

Decision date

Before

Source

Judgment (882 paragraphs)

Parties

Cases Cited (28)

Cited By (2)