Hadaway v Robinson & Ors

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. 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.

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.

Q. What happened then? A. Then, basically, yeah, come back up and we called the ambulance and that because he's hurt his leg.

Q. Did you have any involvement with the police or the ambulance? A. Yeah, we got - I think Lindsay might wanted us to get--

Q. You personally. A. Me. No, I spoke with the police. The police watched some video footage.

Q. Were you present when they did that? A. Yep, and, yeah, that was it."

Mr Nelson agreed that on 13 October 2004, which was about a month after the incident in question, he had given a statement to the police. That statement was tendered in these proceedings as Exhibit "W". That statement included the following description of events: "… 2. I am 24 years of age.

3. I have been employed as a security guard for two and a half years. I have been doing security work at the Hoey Moey Motel for 12 months. My duties for my shift are to look for intoxication, check ID's and keep an eye out for any trouble.

4. At about 8pm on Friday the 17th of September 2004 I started work as a Security Guard at the Hoey Moey Motel, which is in Ocean Parade, Coffs Harbour. During the night Danny Miller who is the Bar Manager came over to me and told me a guy has threatened another guy. Danny pointed to somebody at the end of the bar. I noticed a male, 30 to 35 years old, tall, skinny and had white skin. I know they called him a nickname I think it is 'Hoon'. I cannot remember what he was wearing. I knew him from working at the Hoey Moey. I knew his face.

5. The guy I think is called Hoon was walked over to the other side of the Bar room by Danny because he was threatening this other guy with glasses. The guy with glasses is called Heath Robinson because I have seen him in the pub. I stood near the end of the bar. The guy called Hoon has tried to walk back through to the other side of the bar were (sic) Heath was. I told him to stay on this side or he would have to leave the pub.

6. He just walked off to where he was. I stayed there for a bit longer and then went to pick up some empty glasses. I saw Hoon walk through the doorway at the end of the bar and go over where Heath was. I have walked back over to him. I heard Hoon say, "You owe me money, I am going to kill you and bash you." He said this to Heath. I told Hoon to get over to the other side of the bar. We walked over to the other side of the bar and told him, "You should call it a night and go home". Hoon left through the front doors to the side of the Pokies room.

7. I stood inside of the door so Hoon could not walk back in. I stood there for a little while and then walked around to collect some glasses from the bistro. I walked back and stood at the door and a little while later I heard yelling from outside. I walked outside the door and I could hear yelling from down Park Beach Road.

8. I was standing on the road at the intersection of Ocean Parade and Park Beach Road. I saw Hoon standing on the roundabout and Heath and one of his mates were walking towards him on the footpath. I saw Hoon walk towards Heath. I saw Hoon half run at Heath and appear to grab him by the throat. It looked like both guys were wrestling. They fell to the ground and they kept holding each other. It was a bit hard to see what they were doing. I was probably about 20 to 30 meters from these guys.

9. I saw Heath get up and he walked to his friend who was nearby. They walked off into the vacant block to their left and I walked back towards the pub to notify Danny about the wrestle down the road. I told Danny what happened when he was behind the bar. I think Danny walked down to where the fight happened. I stayed the (sic) front door while this happened. …"

In cross-examination, Mr Nelson denied that he was close by when the fight had occurred. He said he just heard shouting, not the detail of what was being said. He agreed that on his version, he would have been "a fair way away" from the location of the fight. He did not think the distance was as far away as 120 or 170 metres.

When he had his attention drawn to paragraph 8 of his statement, in which he had said that he was "probably about 20 to 30 meters" away from the fight, and when it was suggested that this was so because he had followed the first defendant and Mr Webb to the scene, and who were themselves following the plaintiff, he denied these suggestions. He agreed that if it were the fact that he had arrived at the scene of the fight and had done nothing to protect the man who got injured, it would have looked bad for his career as a security guard. He denied that this is what had occurred.

Mr Nelson stated that "there was many a night" where the plaintiff had been asked to leave the hotel. The hotel's incident book was not available to either confirm or negate that statement by Mr Nelson. He denied the suggestion that 3-4 weeks before the incident in question, he and another security guard had forced the plaintiff to leave the hotel, with the plaintiff being held in a headlock by him. He also denied throwing the plaintiff's keys into the beer garden of the hotel and then inviting the plaintiff to go back to get them, so as to provide an opportunity to assault the plaintiff. He also denied having to apologise to the plaintiff for such an incident.

Mr Nelson denied familiarity with the first defendant. He denied feelings of loyalty to the first defendant and denied wanting to protect him from prosecution. He agreed that he had previously worked with the first defendant.

Mr Nelson acknowledged that Mr Archibald had kept an incident book on the premises. He gave the following evidence about what may or may not have been written up in the incident book: "Q. And, for example, the occasion on which you asked Mr Hadaway to leave the hotel weeks before the incident. Was that something that was recorded in the incident book? A. No.

Q. How do you know that? A. Not what I can remember anyway.

Q. You didn't report it or record it yourself? A. Well, down there, we never had an incident book so whenever someone got asked to leave, we didn't write it up unless it become, like, unless there was a fight or something, then it would get written up in the incident book or if someone was barred or, yeah.

Q. So, when you gave evidence before to the effect that Mr Hadaway had been barred earlier, was that something that you know to be written up in the incident book? A. It might have been, yeah, I'm not 100 percent sure.

Q. Was anything written into the incident book, to your knowledge, about the events leading up to Mr Hadaway getting injured? A. I can't recall on that."

Mr Nelson said he could not recall an incident on the night in question in which the first defendant had slapped the plaintiff or grabbed him by the collar of his shirt and tried to drag him outside for a fight. He said Mr Miller had not informed him of such an event. He said that he had simply been informed by Mr Miller that there had been an altercation between the plaintiff and the first defendant, and that they have been separated and told to remain on either side of the bar. Mr Nelson understood that he had been directed to maintain that separation.

Mr Nelson said that it was his function to basically "follow what the pub wanted". He reiterated that it was Mr Miller's wish that these men remain separate whilst in the hotel. It was against that background that it appears it was the plaintiff's action in coming into the bar that led Mr Nelson to then escort him from the hotel.

Mr Nelson stated that after the fight between the plaintiff and the first defendant concluded, the first defendant came back to the hotel, but that he did so by going through a vacant block, ending up at the hotel. It appears from the aerial photographs, that the first defendant did so by an indirect route, and not by a straight line of walking.

Mr Nelson was a little vague as to some details of this evidence, for example, the circumstances of the first defendant's reappearance at the hotel: "… When you went back to the front door eventually did Mr Robinson reappear in the hotel? A. Yes.

Q. And also Mr Webb, his mate; Chris Webb? A. Yeah, they were - well, yeah, I guess so. I don't know."

Mr Nelson did not agree with the proposition that the plaintiff had not run towards the first defendant in the lead up to the fight. He also disagreed with the proposition that the first defendant and Mr Webb were catching up to the plaintiff at the scene, and that the first defendant attacked the plaintiff, pushing him over and breaking his leg.

Significantly, given Mr Webb's evidence suggesting that the plaintiff had kicked the first defendant whilst lying on his back on the ground as the first defendant got up, Mr Nelson did not refer to such a kicking manoeuvre in his evidence, which is as follows: "Q. Do you agree that Mr Hadaway ended up on his back, on the road? A. No. I don't know. Like I said, they just looked like they had a wrestle, they went down. I don't know who was on their back, but - yeah.

Q. Sorry, you don't know who was on his back? A. Well, what I could see, it just looked like they were wrestling, they went to the ground, Heath stood up, Heath walked off.

Q. But one man was on top of the other. Is that right? A. Yeah, well, I guess so.

Q. Could you see who was on top of the other? A. No."

Mr Nelson explained what he saw to be his duty on the night in question as being to stop trouble from occurring in the pub or outside the pub, or basically the pub premises, and if something of that nature was going on nearby, to ring the police. He understood that he had been employed to stop trouble in the hotel or "in the car park or anything like that". He said "… If there is drama, you know, outside the hotel grounds, ring the police".

In relation to what he saw as his remit when seeing patrons off the premises, he gave the following evidence, which seemed at odds with Mr Miller's evidence, namely: "Q. Mr Nelson, insofar as you regarded yourself as having security in regard with responsibilities around the perimeter of the hotel, for example, when someone was asked to leave or was being seen off the premises-- A. Yep.

Q. --how far away from the hotel did you regard the outer limit of that perimeter to be? A. Back when I was there at the Hoey basically it was - we asked them to leave, yeah, once they were out the front, nine times out of ten because they were all locals. We'd rung the taxis for them. Just basically, yeah, get them out the front, they take the taxi. If not, they move on but basically off the - like, out of the car park.

Q. Would it, for example, extend as far as two or three hundred yards or metres? A. Yeah, well, no, they didn't - they never said - they - well, the Hoey didn't want me to do that."

Mr Nelson not only denied that he was present whilst the fight was in progress, or at least when it was in the process of concluding, but he also denied giving a statement to the police in which he tried to make it look as if the plaintiff was the aggressor in relation to the events in question, when in fact, as was put, the opposite was the position. Mr Nelson added a significant detail to his description as set out in paragraph 8 of his police statement by saying "…Like, when he first went in he went in with his hands up …". The reference to "he" was a reference to the first defendant.

When questioned further about this detail, and when asked to demonstrate it, Mr Nelson answered "I can't remember every little detail". He then appeared to resile from the suggestion that the first defendant's hands were up. In this regard his evidence became confused, as appears from the following interchanges: "Q. Yet you, in paragraph 8 of your statement to the police, said, "I saw Hoon -" that is, Mr Hadaway - "half-run at Heath and appear to grab him by the throat." Now, you didn't see that at all, did you? A. Well, it appeared that way. Like, when he first went in he went in with his hands up so--

CALLAWAY: ..(not transcribable).. indicating with his hands up--

Q. You have indicated with your hands up - that's both hands up, in effect, towards the shoulder. Is that right?

Q. It's shoulder level. That right? A. I don't know. You're saying so.

Q. All right. Stand up, please, if you would and can you demonstrate-- A. I can't remember every little detail."

Ultimately, Mr Nelson became uncooperative and resistant to questioning, as the following extract of his evidence reveals: "Q. And when Mr Hadaway ended up on the ground, isn't it the situation that Mr Robinson then got on top of him and started punching him? Is that the situation? A. I don't know, you're telling the story.

Q. Mr Nelson, it's no good just shrugging your shoulders and making that sort of statement. You either know or you don't know. A. No, well, I don't - like I said, it looked like they were wrestling. They fell to the ground and I don't know what else you want me to say but that's all I--

Q. Could you hear at any stage loud voices saying anything that you could decipher? That is, that you could understand what the words were? A. Not that I recall. I don't know.

Q. But surely you heard Mr Hadaway complaining he had a broken leg? Wasn't he screaming or yelling that out? A. I don't know. I don't recall.

Q. When Heath came back into the hotel, did you speak to him? A. Don't recall.

Q. Well, you were there when he came back, weren't you? A. Yeah.

Q. Well, did you ask him what happened? A. I don't recall.

Q. Did he say what had happened? A. Don't recall.

Q. Were you curious to find out more of what had happened? A. Don't recall."

Mr Nelson denied slanting or structuring his evidence in order to escape the accusation that he had been present at the time of the assault.

Significantly, when Mr Nelson was asked whether the first defendant had threatened the plaintiff with words such as "You're a fucking liar, come outside, I'm going to punch your head in" he said whilst he could not recall those words, this could have occurred. He also agreed that if he had seen a fight break out, he would not wait for instructions from the hotel, and would go straight in and break it up if it was in the hotel, or on the footpath outside the hotel, or even in the car park. He said that if the fight was any distance away, he had been told to ring the police. In further explaining his duties, he said he would intervene in the case of a verbal altercation without waiting for instructions to do so. He explained "…If two people are getting aggressive and having words, we intervene so they don't fight, to try and, you know, prevent it".

Critical event 5 : Plaintiff's description of him leaving the hotel

The plaintiff acknowledged that by the time he had left the hotel, he had consumed about six or seven schooners of full strength beer. He said that when he left the hotel, he did not feel there was any danger or risk in him leaving at that time. The plaintiff said he left the hotel by the front or bistro door, crossed Ocean Parade and then proceeded to walk in a westerly direction in Park Beach Road towards the roundabout at the intersection of Park Beach Road with Hogbin Drive. There was no controversy over these events.

The plaintiff said he had not eaten by the time he had left the hotel. He said he had missed getting a meal at the bistro as the bistro had closed. He said he had too much to drink to consider attempting to cook a meal for himself so he walked up Park Beach Road intending to walk to the Northside Shopping Centre to obtain a pizza.

The plaintiff said that as he was walking as described above, he had started to converse with another man who had sought some directions to the pizza shop. He said they then commenced to walk together in a westerly direction along Park Beach Road towards the nearby roundabout, and in the direction of the pizza shop.

Critical event 6 : First defendant's own description of him leaving the hotel

The first defendant described how, shortly after the plaintiff had been escorted from the hotel, he and Mr Webb decided to leave the hotel. He claimed that he first went to the toilet for some 4 or 5 minutes and then left, walking up the road, which I infer from his description, was Park Beach road, towards the roundabout. In his oral evidence in these proceedings, he stated that these events occurred at about 9.00pm. In his evidence in the Local Court proceedings on 4 November 2005. The first defendant said that he left the hotel at "about 9.30 or 10" : Exhibit "U" p 59.49.

Critical event 7 : Precursor to physical altercation

The plaintiff described how he and the man with whom he had been conversing in the street, were walking on the southern side of the footpath of Park Beach Road when he heard the name "Hoon", which was the nickname by which he had been known from his earlier years of involvement in motorbike racing.

The plaintiff said that when he had reached a point that was about 10 to 15 metres away from the roundabout intersection at Hogbin Parade and Park Beach Road, he heard the words "Hoon, stop" being called out from behind.

He said he then turned and saw the first defendant running towards him from the direction of the Hoey Moey Hotel. The plaintiff also described what appeared to him to be three other people who were also running towards him. It seemed to him that all these people were running together and towards him. The plaintiff said that he then told the man who had been walking with him to the pizza shop that what was happening had nothing to do with him and that he had better leave. The plaintiff said that man then started to walk away from the scene. The plaintiff stated that he then walked for a short distance back off the road and onto the footpath and towards the persons who he said were then running towards him.

The plaintiff identified the persons who were approaching him as being the first defendant, Mr Heath Robinson, Mr Chris Webb, Mr Ricky Nelson and an unnamed security guard whom he had previously seen working at the hotel, and whose name he said was never revealed to him.

The plaintiff stated that when these persons were upon or near him the first defendant said "Come here, you cunt, I'm going to bash you" to which the plaintiff said he replied "I don't want to fight, I've had too much to drink". The plaintiff alleges the first defendant then replied "I don't give a fuck" after which a fight ensued between them.

The first defendant described leaving the hotel and then making visual and verbal contact with the plaintiff in the street shortly after leaving the hotel. He described these events in the following terms: "Q. That's the beer garden door that you walked out? A. Yes. Walked out the beer garden door, started walking up the road and walked around the corner, got about halfway up the street to the roundabout and, see, I think Chris said, "Is that Hoon?" because we could hear this yelling and screaming, screaming, "go on, come on, Nick, come on," all this sort of thing, like, and Hoon and this other fellow which I do not know was standing on - under the light on the roundabout."

The first defendant stated that the plaintiff said to him " I'm going to kill ya. I'm going to fuck your neck right up." He alleged that the plaintiff, who had been walking towards him, then started to run towards him. The parties agreed that the reference in the transcript to "Nick" seems to be a transcript artefact or error.

Critical event 8 : The physical fight between the first defendant and the plaintiff

The first defendant reiterated that when he had made visual contact with the plaintiff at the roundabout, the plaintiff was yelling and screaming at him. He claimed the plaintiff initially walked quickly towards him, and as he got closer he was running. The first defendant described these events in the following terms: "Q. From what point did he start to run? A. At first he was yelling and screaming, and just walking straight towards me fairly fast, and just the closer he got the quicker he got, and that - and he was in a run.

Q. What did you do when you noticed him first start to come towards you? A. I was saying to him, "Stop", and when he started really - and I knew that he wasn't going to stop, and he's yelling out, "I'm going to kill you," and all this, and he came running at me and threw a punch at me."

The first defendant described these events as having occurred whilst he had remained in the one position. He described the plaintiff, whilst still running, as having thrown a right overhand punch at him, which the first defendant then blocked in a protective manoeuvre of his left forearm and hand. He then described the ensuing fracas in the following terms: "Q. So what happened? A. I had a little grapple. He's - I've grabbed him, he's head-butted me in the cheek, and I just threw him over my hip. One arm, his arm, I threw him right over my hip, and he held on at the same time, and we both hit the ground head first. We had a bit of a wrestle around, then I got on top of him, I was holding him down with my arms, pinning him down. He said to me, "Let me up and I'll fight you the old style, old school," and I've gone, "Righto." I've stood back up, let him go to stand up and he's - he kicked me in the testicles, and tried to kick a couple more times. I just stood out the back so he couldn't get me. I was out of his range then.

Q. What happened then? A. I've gone, "Where's my glasses?" I've looked. He's still screaming, and he was on the ground, and he's yelled out - he was just yelling and screaming, and so he's tried to get up, and he got up once and took about five or six steps to the right, got up twice. The second time, took a few steps the other way, fell over, got up the next time and it looked like he fell into the gutter, and I got my glasses, and he started yelling out, "You fucked my leg, you broke my leg," and I just said, "I didn't even touch your leg." I thought he was trying to trick me, but - "

The first defendant claimed that in these events he said to Chris Webb who was with him and nearby "You stay out of it, right. You stay out of it." He stated that he and the plaintiff then "engaged." He then elaborated on these events with the following description: "Q. Could you just stop there. I want ask you this. You said that you grabbed - this is while Graham was still standing - you said you grabbed him. What part of him did you grab and what - how did you grab him? A. I grabbed his arm, hold on to his arm to lock his arm up, and then the other arm, so I'm, we're both, sort of, holding on to it, but I had hold of his arms like that, and he just went pop, and headbutted me. That was a little - it was, it was quite open that spot, and then at that stage, I let go of that arm, went for this arm and just threw him over my hip, and at that stage, he held on tight and we both hit the deck head first.

Q. What part of him were you holding when you had to throw him over your hip? A. His shoulder and bicep.

Q. You both - you said you both fell to the ground at that point? A. Yes, we both fell head first into the bitumen.

Q. Where were his legs when you head holded him? A. We were tangled up and rolling around, and fell over together. We were all tangled up. It wasn't, it wasn't--

Q. Were you legs tangled up? A. Yes, definitely. At first, we landed on our head or I landed on my head and he landed on his head.

Q. Did you punch him while he was down? A. No, I didn't punch him, I was restraining him. I had him held down. I didn't punch him at any stage.

Q. You heard him give evidence that you punched him half a dozen or a dozen times whilst he was on the ground. How do you think he would have faired if you'd done that? A. If I had have punched him half a dozen times when he was on the ground, he would have had swelling in his eyes, he would have been swollen up, he would have been in a mess."

The first defendant claimed that when he got up, located his glasses and then went back to the hotel because he realised he had left his wallet at the toilet of the hotel. He stated that he retrieved his wallet and then left the hotel. He said he initially looked out of the front door, saw that the police and the ambulance had arrived along with some people who had walked to the scene, so he left through the side or bistro door.

The first defendant gave another slightly varying version of these events, namely that after he went out of the front door to have a look he saw the police car heading straight towards him so he re-entered the hotel and left through another door on the left. He described these events in the following terms: "Q. So, you went out the front door and had a look. Is that right? A. Yes.

Q. What did you do then? A. The police car had just started coming down to - it was heading down towards, directly towards me. I just turned around and went straight back in. I didn't want to - I knew that they were coming down. I knew what the procedure was as being a security guard, and I didn't want to spend a night in lock-up for something I didn't do. I was defending myself. I just went out, come straight back in and then went out the other back corner door.

Q. Where did you go then? A. Back to Chris' house. It was closer."

As to the detail of the fight itself, the first defendant denied executing the manoeuvre whereby he pinned his foot behind the plaintiff's foot and then forced him to the ground. He denied that such a technique existed. He also denied stomping on the plaintiff and stated "I did not stomp on him, I did not kick him and I did not punch him. I grappled him and I threw him on the ground."

The plaintiff described an action by the first defendant in which the first defendant performed a sweeping kick of his right leg whereby his right foot was placed on the ground and became hooked into a position behind the plaintiff's left ankle, with the first defendant's right leg hard up against and behind the plaintiff's left lower leg, thereby pinning or trapping the plaintiff's leg into a vertical position to establish a firm contact point or a fulcrum.

The plaintiff described how the first defendant had then used a forearm movement to push against the plaintiff's upper chest, which caused the plaintiff to fall backwards onto the ground whilst his left leg was trapped in the upright position. The plaintiff described how this manoeuvre then caused his lower leg to snap just above the left ankle because whilst these forces were in operation, the plaintiff's left foot had remained pinned flat on the ground.

The plaintiff stated that when he then fell backwards and onto the ground the first defendant then jumped on him and then placed a knee on his chest which pinned him there, whilst the first defendant then proceeded to repeatedly punch the plaintiff with hard hits about the head and about the face using both his left and right fists. The plaintiff also described being beaten about the chest and neck. The plaintiff said that whilst this was occurring, he could not get up from the ground, and he felt as if his leg had been broken. He said he was unable to use his arms whilst this was occurring because of the way in which he was being pinned down by the first defendant.

The plaintiff said that at that time he just wanted to get the first defendant to stop hitting him so he said "Let me up and I'll fight you." He said this had no effect on the first defendant, who kept on punching him. The plaintiff stated that whilst he was on the ground he was kicked by the first defendant whilst others were present.

The plaintiff said that those present did not intervene or express any sympathy for what was occurring to him. The plaintiff said that the bystanders who were then present egged on or encouraged the first defendant to continue whilst the first defendant was kicking the plaintiff.

The plaintiff said that during these events the bystanders made comments suggesting that the first defendant "get" the plaintiff and they were admonishing the plaintiff to get up and "have a go". The plaintiff described how he had ended up laying on the road even though the assault had commenced whilst he was on the footpath as he had been "kicked all over the place". The plaintiff also described having being kneed and kicked and left with sore testicles.

The plaintiff described how these blows ceased after he had heard someone call out from a nearby verandah words to the effect "I've seen it all and I've rung the police" whereupon the first defendant and the others who had been present ran back along Park Beach Road and back towards the Hoey Moey Hotel.

The plaintiff stated that when this occurred he was left laying on the roadway feeling "pretty sore." The plaintiff stated that as he lay there on the roadway, two vehicles had been driven around him, and a third vehicle then stopped. The plaintiff said that the driver of that third vehicle rendered assistance and he was then lifted by several others who had arrived at the scene and was placed on the footpath.

At some time after these events and before the plaintiff was taken to hospital, the third defendant Mr Lindsay Archibald, arrived at the scene. The plaintiff's account of their ensuing conversation was to the effect that Mr Archibald asked what had happened and the plaintiff told him "Your mates just turned up." The plaintiff stated that he pointed out to Mr Archibald that his security guards had been on the scene and had not assisted him. The plaintiff claimed Mr Archibald had replied to the effect "Well I don't know. Ambulance is on its way. We'll sort it out."

The plaintiff said that he did not agree to fight the first defendant before the first blow had been struck, nor did he consent to being struck by the first defendant. Although he stated that he had told the first defendant to let him up so he could fight him, I interpreted that evidence as seeking an opportunity to defend himself rather than as any consent to physical contact.

Mr Nelson denied that he was present at the scene of the fight when it occurred. Mr Nelson was asked whether, during the course of his normal duties he had become aware that later, that is, after the plaintiff had left the hotel, something had occurred. Mr Nelson then went on to describe his observations of events leading to the altercation between the plaintiff and the first defendant in the following terms: "Q. Did something happen after that? A. Just - I heard - I think it was a while after that, I heard some yelling from outside.

Q. You heard some yelling. What did you do? A. Just went outside, stood outside, I had a bit of a look. Could see - could see down the road.

Q. Which road? A. Park Beach Road, it's called.

Q. You said you heard some yelling. Could you tell where that yelling was coming from? A. It was coming from down the road, where the roundabout was, which was a fair - like, a bit of a way down. And then I noticed Heath was walking down that same road. The yelling was coming from Hadaway.

Q. Where was Mr Hadaway? A. At the roundabout.

Q. When you say, "At the roundabout", was he on the roundabout, beside the roundabout? Where was he? A. I'm pretty sure he was on the roundabout.

Q. Do you know what he was saying? A. I can't recall that, yeah.

Q. So did you see what happened next? A. Yeah, basically, yeah, Heath was coming down; walking down the street, Hadaway had come back up towards Heath.

Q. Mr Hadaway came back towards Heath. Just, in relation to Heath, how fast was he going, was he walking, running, what was he doing? A. Walking.

Q. Yes. A. Yeah, I think there was a bloke with him, yep."

Mr Nelson described his observations from afar of a physical encounter between the plaintiff and the first defendant. He said he had remained at the hotel. He described his observations 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."

Mr Nelson claimed that he then saw the first defendant walk off and away through a nearby vacant block. He also said that then, Mr Archibald and Mr Miller "went down there." He also indicated an awareness that the plaintiff's leg was hurt and said "we called the ambulance and that." He said that on the evening in question he spoke with the police and he went through or viewed the hotel video footage with the police.

Mr Nelson was asked whether he had any altercation with the plaintiff on a previous occasion in which he had held the plaintiff in a headlock manoeuvre. His evidence concerning that question was initially off-hand, dismissive and confusing, as is evident from the following extract of his evidence: "Q. Had you previously had an altercation with Mr Hadaway where you held him in a headlock? A. No, not - wouldn't know.

Mr Nelson also denied allegations made earlier by the plaintiff as to a previous incident in which the plaintiff's keys were taken from him and then thrown into the hotel premises, as appears in the following extract of his evidence: "CALLAWAY

Q. Had there been an occasion where you'd taken Mr Hadaway's keys and thrown them into the hotel? A. Definitely no.

Q. Had there been an occasion where you'd been required to apologise to Mr Hadaway, and you had, in fact, apologised to him. A. No.

Q. Did you ever take patrons out of the hotel, with Lindsay Archibald, and beat them up out of camera view? A. Definitely no."

Later, when Mr Nelson was cross-examined on the topic of whether he had previous run-ins with the plaintiff, he said: "Q. You had previous conflicts with Mr Hadaway before this night. Is that right? A. He'd been asked to leave a few times from the pub. He was actually barred for a while from the pub.

Q. Had you, about three or four weeks before this incident, put him out of the pub, that is, required him to leave the hotel? A. Well, there was many a night where he was asked to leave."

Mr Nelson was cross-examined about his statement to the police : Exhibit "W". He said that at the time he made the statement he knew the first defendant was to be charged with criminally assaulting the plaintiff and with breaking his leg. He took issue with and denied the proposition that he and another security guard at the hotel were close by and present when the plaintiff was assaulted. He reiterated that he was out at the front of the hotel and a long way away from the altercation in question.

Mr Nelson denied giving a deliberately false version of events to the police. He also denied being determined to discredit the plaintiff by making as many false allegations has he could in order that the plaintiff would not be believed. He denied that on the evening in question he followed the first defendant and Mr Webb out of the hotel whilst they in turn were following the plaintiff. He denied that he either ran or walked west in Park Beach Road at a fast pace towards the area where the fracas was in progress. He agreed that if it were shown that he was present when a fracas of the kind described by the plaintiff was occurring and he did nothing to intervene, it would look bad for his record as a security guard. He maintained that he was not present at the time and he denied he had failed to intervene. He denied leaving the scene where the plaintiff was left laying in the middle of the road with a broken leg.

Mr Nelson denied that he felt a loyalty to the first defendant because of their previous working relationship such that he would want to protect him from prosecution by structuring the content of his evidence to assist the first defendant.

Mr Nelson gave some evidence about the existence of an incident book kept in the hotel, in the following terms: "Q. Was the practice before the time of this incident that, as a security guard, you had to report everything to Danny if there was anyone causing any trouble in the hotel? A. Yeah.

Q. And he'd then write it into the incident book. Is that right? A. Yeah.

Q. Was that the system in the Hoey Moey Hotel that, if any member of security staff or bar employee saw anything where someone was, in fact, misbehaving in any serious way, that got reported to Danny as a matter of course. Is that right? A. Yep."

In my view, Mr Nelson gave evasive and unconvincing evidence about the circumstances in which events ether were, or were not written up in the incident book kept at the hotel. In this regard, his evidence was as follows: "HIS HONOUR

Q. Was the system also that a person such as yourself, that is security guards, would also write in the incident book whenever it was felt relevant to do so? A. Yeah, at the time the company which I was working for down there, they never had an incident book down there. The only incident book down there was the one from, like, Lindsay Archibald had there, so.

Q. The hotel's incident book? A. Yeah, yeah, the hotel's incident book, so, yeah.

Q. And, for example, the occasion on which you asked Mr Hadaway to leave the hotel weeks before the incident. Was that something that was recorded in the incident book? A. No.

Q. How do you know that? A. Not what I can remember anyway.

Q. You didn't report it or record it yourself? A. Well, down there, we never had an incident book so whenever someone got asked to leave, we didn't write it up unless it become, like, unless there was a fight or something, then it would get written up in the incident book or if someone was barred or, yeah.

Q. So, when you gave evidence before to the effect that Mr Hadaway had been barred earlier, was that something that you know to be written up in the incident book? A. It might have been, yeah, I'm not 100 percent sure.

Q. Was anything written into the incident book, to your knowledge, about the events leading up to Mr Hadaway getting injured? A. I can't recall on that."

Mr Nelson said that he did not recall an incident in which, on the evening in question, the first defendant had slapped the plaintiff. He agreed that if such an incident had been seen by security guards or by a barman, something would have been done about such an event, if it had occurred in the hotel.

Mr Webb was called as a witness in the first defendant's case. Mr Webb acknowledged that he had known the first defendant for some 7 years, from when Mr Webb was aged 20. He described the first defendant as having been his mentor. He said that he had arrived at the Hoey Moey Hotel on the afternoon in question with the first defendant. He said they had a drink and a game of pool. He said after he had a drink and a game of pool he saw the plaintiff come through into the bar area where he and the first defendant were located. He said that whilst he was there he had parted company with the first defendant and had gone to place some bets. He also said he had been drinking a lot by the time he saw the plaintiff arrive.

Mr Webb stated that to his understanding, before the events in question, the first defendant had "No attitude at all" to the plaintiff, and had assumed that "it was fine" between the plaintiff and the first defendant, and that there was no ill-will between them.

In his evidence in chief Mr Webb stated that hostility became evident when the plaintiff came into the bar area of the hotel. He said the plaintiff "was quite upset and giving evil eyes, and then it started into an abusive manner". He said he could not recall what the plaintiff was saying. In answer to a leading question, he agreed the plaintiff was angry. He said the plaintiff appeared very upset. He said that to his knowledge nothing happened between them, other than the fact that the plaintiff was being abusive, and the bar staff had ended up telling the plaintiff to go to the other room.

Mr Webb said that when this occurred he continued to play pool and over a couple of hours he had a few more drinks. He then said that they played pool a bit longer and then he said "… but the night was ruined, so ... we decided to leave". Later, when this evidence was tested, he said the first defendant had added "Fuck this" out of frustration, because the prevailing thought was that the night had been ruined for them.

In answer to a leading and albeit interrupted question, Mr Webb then said there were a couple of other occasions when the plaintiff came through into the bar. He described the plaintiff's behaviour as being aggressive towards the first defendant. He said this had resulted in the bar staff separating them. He said he could not recall the number of times the bar staff told the plaintiff to move to the other room. In his evidence in these proceedings, Mr Webb said he could not remember whether it was the bar manager Mr Miller who had separated them. I will return to this aspect of his evidence in order to identify a credit issue after, reviewing Mr Webb's entire evidence.

In relation to the decision to leave the hotel that evening Mr Webb said "… so we decided to leave to go home because the night was ruined; Heath was upset." Without intending accuracy as to the time, he said the decision to leave the hotel occurred about 20 minutes after the last encounter had occurred between the plaintiff and the first defendant. He said that he then left the hotel with the first defendant and at that time they were not in the company of anyone else. In cross-examination he later recalled that the first defendant had left the bar to go to the toilet before they left the hotel together.

Mr Webb said that as he and the first defendant left the hotel he heard yelling and realised that the plaintiff was up the road at the roundabout and was yelling at the first defendant. Mr Webb described the plaintiff as walking "really fast" towards the first defendant. Somewhat confusedly, Mr Webb described the distance over which the plaintiff walked towards the first defendant as being variously, "… not far from the Hoey" and then, in contrast "I can't say how far it was, it wasn't far, a couple - I don't know. 10 metres? I don't know. I don't recall."

Mr Webb stated that the plaintiff then grabbed the first defendant, attacked and head-butted him following which the two of them went down and hit the ground really hard. He then said they wrestled whilst on the ground. Mr Webb described the fight as being of split second duration, being on and over very quickly without the opportunity for any intervention. He added that there was no need for any intervention by him. He denied egging on the fight. He described the fight between the plaintiff and the first defendant in the following terms: "Q. You don't recall? So, what happened then?

A. And they had wrestled to the ground, hit the ground hard and Heath tried - like had gotten up off him and Graham was kicking up at him and his - pushed off him, stepped back. Graham was saying, "Let me up so I can fight you," when I just assumed he could get up because Heath wasn't even touching him and Graham's tried to get up, fallen over, tried to get up again, fallen over and then he said, "You broke me effing leg," and Heath replied, "I didn't even touch your effing leg." And I honestly thought he was lying, that he'd broken his leg because I couldn't see how it had happened in that - what I'd just seen, what I'd just witnessed. I didn't think it was possible for someone to break their leg like that."

Mr Webb described these events occurring in the middle of the road. He tentatively estimated this to have been about 10 metres away from the roundabout. He stated that when the two got up off the road the first defendant walked away and then turned and said to the plaintiff words to the effect "I didn't touch your effing leg." He said he did not see the first defendant punching or kicking the plaintiff: "Q. Did you see Heath kicking or punching Mr Hadaway?

A. No, I didn't. Not at all. All I seen was the wrestle, they hit the ground hard and Heath moved away. Graham was kicking, as people do when they are on the ground, at someone, you know."

Mr Webb said that when the plaintiff got up, he saw him fall back over near the gutter. He then said the next thing that happened was that the first defendant said "Oh no, I've lost my wallet. I've left my wallet back at the Hoey" following which the first defendant ran back, and as he did so Mr Webb walked away whilst the plaintiff was allegedly yelling out things that he could not now recall.

Mr Webb stated that he next met the first defendant outside the Hoey Moey Hotel after the missing wallet had been retrieved. He said they then walked home "the other way around so - to avoid the [scene of the] altercation".

Significantly, in his evidence in chief Mr Webb proffered a qualification to his evidence concerning his memory of events after the fight by saying "From recollection". When that expression was explored, in evidence in chief, it emerged that his memory was vague because in those days, being when the critical events in question had occurred, as an alcoholic, he had been drinking a lot. This had apparently been the case from about a year beforehand, because his father had passed away, and he was leading an unhappy lifestyle, drinking and smoking marijuana. He also added that the first defendant had smoked marijuana at that time as well.

It later emerged in cross-examination that Mr Webb regarded the first defendant as his best friend at the hotel, and someone with whom he played pool. Mr Webb stated that he had arrived at the hotel at about 5.00pm and left at about 9.30pm. I have already referred to the evidence Mr Webb gave of having already had a lot to drink by the time the plaintiff had arrived at the hotel. In relation to those four and-a-half hours when he was in the hotel playing pool, he said he "wouldn't say" he was intoxicated but had consumed "a few beers".

In answer to a question in further cross-examination, Mr Webb gave the following equivocal evidence about his state on the evening in question : "Q. Were you intoxicated by alcohol that night? A. I wouldn't say so, no. I was - yeah, I was intoxicated, but not incoherent. So I--

Q. But how can you remember? A. I was tipsy. You remember. I was drinking a lot, but it doesn't - you don't get really affected when you drink a lot, so - in that period of time."

In his answers to cross-examination, Mr Webb said he had not seen the first defendant slap the plaintiff, nor had he seen any incident in which the first defendant had grabbed the plaintiff by the shirt. He said that "all I seen" was the plaintiff "being aggressive, provoking" the first defendant. He said the first defendant had only responded to the plaintiff by telling him to go away. Mr Webb stated that he tended not to notice things that did not concern him. This suggested that he may not have reliably observed or perceived all of the relevant events.

Mr Webb stated that when they left the hotel he observed or sensed that the first defendant was upset or unhappy. This was in connection with the night out having been ruined.

There was an aspect of Mr Webb's evidence that indicated he had some familiarity with the plaintiff that had not been earlier revealed by him in his evidence or possibly indicating that he may have acquired that knowledge by having discussed this detail with someone. This indication arose in dealing with a question about the first defendant's health, and concerned the plaintiff's skills as a boxer. The evidence was as follows: "Q. But, if in fact you were worried - first of all, if, in fact, you believed he was carrying injuries, when, what I'll call the fight, occurred in Park Beach Road, why didn't you help Heath defend himself against Graham Hadaway? A. Well, Graham used to always go on that he was an old school boxer. First, I was afraid of my wellbeing. I didn't want to be involved. If it had have been an altercation, I would have put myself in the line and broken it up, but it was that quick that there was nothing to do. No one needed help."

The context from which Mr Webb knew that the plaintiff "used to always go on that he was an old school boxer" was not revealed or explored. This leaves open the question of how or when he would have acquired such knowledge.

In cross-examination, Mr Webb agreed, inconsistently, that when they left the hotel, to his knowledge the plaintiff was still in the bar at the hotel. He then reconstructed this to say he did not know the plaintiff's whereabouts at that time, that is, until the subsequent encounter between the plaintiff and the first defendant had occurred in the street, as he had earlier described.

Mr Webb said that apart from taking time to leave the bar to possibly go to the toilet, he was in the main bar all the time, but he did not see an incident where the first defendant was said to have slapped the plaintiff, grabbed and pulled his shirt and invited him to go outside.

It transpired during cross-examination, and from some clarification questions asked of him, that Mr Webb was having some difficulty comprehending some of the questions he was being asked. He then volunteered that he had a "bad" form of "ADD" which, from the context, I infer was a reference to him having attention deficit hyperactivity disorder.

Mr Webb claimed to be a good friend of the first defendant. He claimed not to know of any ill-will that subsisted between the plaintiff and the first defendant at the time in question. He gave his opinion that the first defendant was not an aggressive person. He also stated that in his opinion the first defendant was intelligent, and used his brain to deal with any problems. It was clear from this evidence that Mr Webb looked up to and admired the first defendant, who was his mentor and whom he credited with assisting him to adopt a more mature approach to his lifestyle and social arrangements.

Mr Webb said that after the fight in the street, both he and the first defendant returned to the vicinity of the hotel. He said he had waited whilst the first defendant went inside to retrieve his wallet from the toilet, and then they went to Mr Webb's home via a route that avoided the scene of the fight. He said he did so in order to avoid any further altercation. He said that at that time he did not see any ambulance or police vehicles at the scene, although he did acknowledge he had poor distance eyesight for reading.

Mr Webb explained that aspects of his memory of the events in question had faded because time had passed and he had other issues to deal with in his life and these had in effect pre-occupied his thoughts. During cross-examination he claimed to have had a refreshed memory of the plaintiff threatening to kill the first defendant during their interchanges at the bar in the hotel. This "jogged" recollection came to him after he had earlier stated he could not remember what was said, other than that foul language had been used.

The questioning which Mr Webb said had "jogged" his memory was as follows: "Q. Do you remember anything that was said by either Heath Robinson or Graham Hadaway before any occasion when the two men were separated by bar staff and hotel security? A. You brought back to my recollection a second ago that Graham did say that I'd kill you, but, other than that, I wasn't paying attention to it. You brought it back into my memory by saying it.

Q. How long was it out of your memory for? A. It's five years how long it's been.

Q. Is there any other way we can jog your memory along? Anything else that comes to mind now? A. I'm telling you everything that I can remember. I'm here. I'm a new person and I'm here to tell the truth.

Q. Is someone saying, "I'm going to kill you" or, "I'll kill you" the sort of language you wouldn't have taken much notice of given the way you work back in September 2004? A. Like I said before, yeah, I wouldn't pay attention to that. I do remember it being said, that you jogged my memory to it.

Q. All right, but if you wouldn't pay attention to it in September 2004, how come, is it, after a five year gap, it suddenly springs to mind in the witness box, after I'm asking you questions? A. Well, that's what happens, doesn't it. Who can say how the brain works.

Q. Are any of my questions helping you with remembering anything of what Heath Robinson said or did that night? A. You've let me remember - you've helped me to remember as much as possible and I've told you as much as I can.

Q. Please attend to my question. A. I just did.

Q. Does any of my questioning help you to remember any more of what Heath Robinson said that night? A. You've helped me as best as you can. I've remembered as best from your help.

Q. Sorry? A. I've remember that night as best as I can from your help.

Q. How did I help you? A. You going through it all and I'm telling you, bit by bit, from my memory."

Mr Webb claimed he had heard the first defendant tell the plaintiff to "go away" and he denied hearing the plaintiff tell the first defendant that he did not want to fight him.

Mr Webb denied that he and the first defendant had pursued the plaintiff to catch up to him in the street just prior to the fight. He denied that at the time of the fight there were four persons present other than the plaintiff, namely himself, the first defendant and two security guards. He denied hearing the plaintiff telling the first defendant he did not want to fight because he had too much to drink. He denied the proposition that the first defendant attacked the plaintiff. He denied seeing the first defendant punching, kicking and stomping on the plaintiff. He did say that when the first defendant got off the plaintiff after the fight, the plaintiff was still on his back kicking up at the first defendant. He denied seeing the first defendant direct any blows at the plaintiff, including any alleged multiple punches to the face whilst the plaintiff was on the ground.

Mr Webb acknowledged that as they were walking away from the scene, he had heard the plaintiff complain that the first defendant had broken his leg. He said that at the time he thought the plaintiff was lying about a broken leg as a ruse to get the first defendant to return to the scene of the fracas. He said he had observed the plaintiff trying to get up a number of times only to keep falling down again.

Mr Webb denied that the fight had only concluded when someone called out from a nearby verandah that the police had been called.

In re-examination Mr Webb explained that at the time of the events, and at the time he had given evidence about the events in the Local Court proceedings, he was an alcoholic, he used to smoke marijuana and claimed "I'm a lot clearer these days, ..."

By agreement between the parties, some passages from the transcript of the evidence given by Mr Webb in the Local Court proceedings on 4 November 2005 were tendered in evidence in these proceedings.

On behalf of the first defendant, Mr Callaway read the following passage of the evidence given by Mr Webb: "Q. Are you able to tell the court what else occurred, if anything, in relation to Mr Hadaway and Heath? A. Well, later on in the night, they ended up arguing with - Graham ended up coming out to Heath, and they had a few words there at the pool table, and Heath had told him to leave.

Q. Just stop there. You say they had words. Can you remember what was said, doing the best you can? I know it was a while ago. Doing the best you can, can you tell the court what was said and by whom? A. I remember Graham coming up to Heath, saying that he was going to get him, and they had a lot of arguments from living with each other. But I'm not quite sure, because it was a long time ago, and I don't like to involve myself in their business. But I knew Heath said he was going to kill him or something, like, along them lines, because he'd got very aggressive there at this stage, and they ended up getting asked by the bar staff to leave the other side of the room at that stage."

Mr Callaway forwarded a written submission in which he raised a correction to the transcript of the above quotation. Instead of "… I knew Heath said he was going to kill him…" he submitted that this portion of the transcript should read "… I knew he said he was going to kill him…". There was no controversy over this suggested correction to the transcript.

On behalf of the plaintiff, Mr Gross QC read the following passages of the evidence given by Mr Webb which followed on from the passage set out in the preceding paragraph: "Q. Did you hear the bar staff say anything? A. I didn't. I seen they come over, then he came over and asked him to leave to the other side of the bar so, yes, I did.

Q. Did you hear Danny say anything? A. I heard Danny say that he had to leave to the other side of the bar. I'm pretty sure, as I said, it's a long time ago."

In these proceedings, Mr Webb had stated that when the first defendant had told him he had to accompany him to court for the Local Court proceedings in 2005, for what I infer from the context to be for the purpose of giving evidence about the events in question, Mr Webb professed an inability to remember the events. In these proceedings, his evidence of his recollection of those events, and his evidence of the request that he go to court with the first defendant in 2005, was as follows: "Q. Incidentally, you were a witness to the fight, I'll call it, in which Mr Hadaway got injured. Is that right? A. Yeah.

Q. Did you at any stage make a statement to the police? A. No.

Q. Did you become aware that the police were called to the location after Mr Hadaway was injured? A. No, to my - what I remember is ages went by and he said, "You got to come to court with me because of the stuff that happened ages ago." I'm like, "I can't even remember." I just didn't think it was anything.

Q. When he said you had to come to court, how long was that after the incident? A. I can't tell you that. I don't know.

Q. Between the time of the incident, when he told you you had to come to court, did you think about matters? A. No. I've got my own to issues to deal with.

Q. Did you forget about whatever had happened that night? A. Well, I - you do remember issues but I didn't think about it. I didn't go around every day thinking this is what happened that night. I've got my own issues. I had a girlfriend at the stage that was, you know, a bit of a rough period with her and dealing with the family loss, and all that. I'm not going to think about what happened with Heath and stuff like that. I'm thinking about myself."

The reliability of Mr Webb's evidence of his recollection of the events has to be considered in the light of the foregoing evidence.

Mr Miller said that later on in the evening in question he received a telephone call from Mrs Black, whom he described as the lady across the road, informing him of the fact that there had been an altercation. He said he then spoke to Mr Archibald and together they went to the roundabout and saw the plaintiff laying injured in the gutter about 20 metres on the hotel side of the roundabout. He said he and Mr Archibald stayed there and they made the plaintiff as comfortable as they could until the ambulance arrived. He said that he heard the plaintiff say he would sue the first defendant "for what he had done". He said that he and Mr Archibald had then walked across the road to the bottle shop, and in doing so, he had not see any guards in the vicinity.

Mr Miller said he had known the licensee Mr Archibald for about 10 years, starting from their previous common employment at the New England Hotel in Armidale, NSW. That hotel was owned by the second defendants who also owned the Hoey Moey Hotel. Mr Miller stated that at the New England Hotel in Armidale, Mr Archibald had been employed as a security guard / barman. Mr Miller said he was not sure that the second defendant, his former employer, was being sued in these proceedings.

Mr Miller denied that at the scene of the injury, the plaintiff had intimated that Mr Nelson and another hotel security guard had been present whilst he was being assaulted, and that they had done nothing to help him. Mr Miller agreed that the pillow and blankets obtained to assist the plaintiff had come from the nearby motel operated by Mr and Mrs Black and not from the Hoey Moey Hotel. He said he knew that when he gave his statement to the police that the first defendant was to be charged with a criminal assault upon the plaintiff, but he denied that his sympathies lay with the first defendant and not with the plaintiff.

Mr Archibald, the third defendant, was a licensee of the Hoey Moey Hotel at the time of the incident. He had been the licensee since 1997 and had continued in that position until about 2 years before the trial. He described the prevailing security arrangements whereby the hotel contracted with a security company, the fourth defendant, for the provision of security guards to be rostered on duty at the hotel. He said it was the duty of the security guards to patrol the whole of the area inside the hotel as well as the northern and southern car park areas. He acknowledged that during the time when he was the licensee of the hotel, and before the incident in question, the first defendant had worked at the hotel as a security guard for a couple of years. He also agreed that subsequently, the first defendant had also attended the hotel as a patron. He agreed that on such occasions they would converse. He said he did not socialise with the first defendant outside of the environment of the hotel.

Mr Archibald said that he had not seen the plaintiff at the hotel on the night in question. Mr Archibald said that on the evening in question he was told of the event in question by Mr Miller who had received a telephone call from Mrs Black to inform him that an incident had occurred. He said that in response he, and I infer from the context, Mr Miller, went to the scene of the incident. He said that at that time he saw the plaintiff laying on the edge of the road with some people standing around him. He estimated the position where the plaintiff was laying to be about 10 or 15 metres to the east of the roundabout of Beach Park Road and Hogbin Drive. He said he spoke to the plaintiff who, according to Mr Archibald, allegedly repeatedly said words to the effect "Heath Robinson is fucking dead." He said that it was there that the plaintiff had told him "that he was going to sue him and have him shot, have him fixed up." It is noteworthy that these precise allegations were not put to the plaintiff during cross-examination.

In cross-examination by counsel for the plaintiff, Mr Archibald said that the plaintiff did not make any complaint to him about security guards from the hotel being at the scene and not intervening in a fracas, contrary to the allegation the plaintiff made in his evidence in these proceedings. Mr Archibald also denied that the plaintiff had complained to him that Mr Nelson had been at the scene of the incident. Mr Archibald acknowledged that when he was back at the hotel he did not ask the security guards whether they had been at the scene. Mr Archibald said that "all security" staff including Mr Nelson had told him that they had not seen what had happened in the incident.

Mr Archibald said he waited for the ambulance and the police to arrive and then returned to the hotel with the police where the hotel security surveillance film was viewed. He explained that the video system at the hotel had been troublesome over a number of years. It appears that a full video sequence of events occurring around the hotel was not available for viewing.

Mr Archibald also described a conversation he claimed to have had with Mrs Kathleen Black on the day following the incident in which he said he had asked her whether she had seen what had happened concerning the events. He claimed that she had allegedly replied, apparently speaking of herself and her husband, that they "…were too pissed and stoned…" and that a tree had obscured their view. He also claimed that she had told him that she and her husband had been facing the hotel, and that the incident had occurred behind them, implying they did not see it when it was occurring.

In answer to a leading question about the presence of some leaves from trees near the property of Mr and Mrs Black, Mr Archibald claimed that Mrs Black told him that a tree had been blocking the view. He later developed that answer to assert that Mrs Black had told him that she and her husband "couldn't see past the bush or the tree."

Mr Archibald conceded that beforehand, over time there had been conflicts between himself and Mr and Mrs Black. The detail of such conflicts is set out in my summary of the evidence of Mr and Mrs Black.

In answer to cross-examination by counsel for the second and third defendants, and in apparent response to some evidence given by the plaintiff, Mr Archibald said that he had never taken customers of the hotel out of camera view in order to bash them, either with the first defendant, or otherwise.

When Mr Archibald was cross-examined about the incident described by the plaintiff concerning a previous occasion on which he had complained of the conduct of Mr Nelson in ejecting him from the hotel and where the plaintiff described how his keys had been thrown around, he said "I just can't remember." Significantly, he did not assert that the incident described by the plaintiff had not occurred.

In answer to cross-examination by counsel for the plaintiff, Mr Archibald stated that the security guard Ricky Nelson was "a very, very, very average amateur boxer, in my opinion." He stated that Mr Nelson was the preferred security guard at the hotel because he knew who had been barred and who had not been barred.

He claimed that to his observation, he did not know whether Mr Nelson and the first defendant were social acquaintances beyond a working relationship. He acknowledged that the first defendant had been a security guard who had worked at the hotel but he could not tell which exact nights had been worked. He said he left all records including the incident books at the hotel when he left his position at the hotel. He said that to the best of his knowledge, when the owners of the hotel took over when he left "they cleaned everything out", referring to the incident books. The basis of his claimed knowledge to this effect was not stated.

Mr Archibald made the comment that if he had known that Mr Nelson or any other staff member had stood by watching a fight he would have taken them to the police himself.

Mr and Mrs Black had been the proprietors of the Ocean Palms Holiday Apartments in Coffs Harbour. Those apartments were situated near the Hoey Moey Hotel. At the time of the incident in question Mr and Mrs Black said they had been sitting on their balcony that overlooked Park Beach Road and Ocean Parade. They said that at the time the critical events in question had occurred, they were having a quiet drink after work. It appears from their evidence that they were in a position to make observations of the events in question. The statements that Mr and Mrs Black gave to the police on 28 December 2004 were tendered in these proceedings and respectively marked Exhibits "M" and "O". Mrs Black's further statement dated 20 January 2005 was marked Exhibit "P".

Mr Black said he had three, maybe four, drinks of bourbon and coke from a can. He said he was not intoxicated, but said he would not have driven a vehicle in those circumstances. Mr Black stated that he heard the movement of people and loud voices coming out of the Hoey Moey Hotel. He said he heard these persons walking west down Park Beach Parade and toward where he was located. He said that in these events he stood up and looked over his balcony, which was 2 metres above the footpath. He described seeing two men walking west, describing the plaintiff and his walking companion proceeding along Park Beach Road. He also described seeing them being followed by two other men walking much faster than the plaintiff, one not saying anything and the other, being very antagonistic and yelling things like "Come back here, you dog."

As the plaintiff and the man he was walking with approached the roundabout at the intersection of Hogbin Drive with Park Beach Parade, Mr Black described the plaintiff's companion as having walked away and the plaintiff turning to walk back towards the hotel. When he saw the plaintiff do so, he said he saw no signs of aggression from the plaintiff. He said he heard no raised voice from the plaintiff and said he saw no raised fists from the plaintiff. At this time Mr Black said he heard further noise coming from the Hoey Moey Hotel and turned to see what he thought were two security guards either running or walking fast underneath his balcony and towards to scene he had earlier observed to have been occurring to his left. He said that when he looked to his left he could see a man, whom I infer was the plaintiff, to be laying on the ground.

Mr Black then described seeing a man kneeling or squatting directly over the plaintiff and using his right arm to repeatedly and forcefully punch the plaintiff by using his right arm with extreme force and vigour. Mr Black stated that whilst this was occurring the security guards had arrived at the scene and were watching this punching take place. Mr Black heard the plaintiff yelling words to the effect of "Get off me, get off me, if you want to fight get off me" and "Get off me, I'll fight you" at which time the assailant stood up and started stomping on or kicking the plaintiff several times.

Mr Black said he saw these events because the area was subject to street lighting. He qualified his observations by saying he could see all these events except for the assailant's feet due to the fact that a few hibiscus leaves were in his line of sight and were waving in the breeze. However, he stated he could see the motions he described, and he said he could hear the person on the ground, whom I infer from this evidence to have been the plaintiff, making noises of discomfort, and he said he had heard the plaintiff complaining of a broken leg whilst the assailant was still kicking or stomping.

Mr Black said he then observed the assailant stand up, walk back to the side of the footpath, talk to his friend and the two security guards all of whom were standing nearby. He said he then saw all four persons walk back past his balcony vantage point some 2 metres above the footpath below, and then walk back towards the hotel. He said he saw the security guard's arm around the assailant. At this time one of these security guards saying words to the effect "Go on mate, come back into the pub, you're all right, he's a bit of an idiot, don't worry about him, just calm down, forget about it." Mr Black said his vantage point gave him a 270 degree view from the hotel back to the roundabout. He said that he recognised the shorter of the two security guards as someone who worked at the Hoey Moey Hotel all the time.

Mr Black said none of the others who were present showed any effort to try and intervene or to stop what was happening to the plaintiff, or to afterwards provide him with any assistance. Mr Black said he asked his wife to call an ambulance and he then went to assist the plaintiff whom he found laying in the centre of the westbound lane of Park Beach Road screaming in pain and a little incoherent. He made the observation that one of the plaintiff's legs, he could not remember which one, was broken. He observed the foot and ankle to be very floppy every time the leg was moved. He heard the plaintiff saying words to the effect "They jumped me ... did anybody see it ... they jumped me." Mr Black then went inside his motel and obtained a pillow and a blanket for the plaintiff as he had observed that the plaintiff had in his view, gone into shock. Mr Black said the ambulance had arrived several minutes later followed by the arrival of the police.

Mr Black's statement to the police described the punches being delivered to the plaintiff's head and shoulders as being "pretty forceful". Mr Black described the person whom I infer to be the first defendant, to have used his right leg to stomp on the plaintiff whilst the plaintiff was on the ground. Mr Black then described the person who had been doing the punching walk over to the two security guards who were also present. He also described the person who had been doing the punching as "really punching into the guy on the ground".

Mr Black explained that the events in question occurred underneath two street lights at the scene, so he could quite clearly see what was happening. He also indicated that he had been trained as a security guard and he regarded himself as a trained professional observer. He said his attention had been attracted to the hotel security guards because, according to his own observations, it "was completely unusual" for the hotel security guards go anywhere apart from the pub, so the fact that they were actually running down the road towards the altercation was something he had never seen before. His attention had been drawn to the security guards by the sound of running feet coming from his right.

Mr Black did not accept the proposition that at some point both the plaintiff and the first defendant were both lying on the ground. He maintained that the plaintiff was on the ground and the assailant was on top of him. He did not accept the proposition that they were both on the ground wrestling. He denied the proposition that the first defendant did not punch, kick or stomp upon the plaintiff.

Mr Black was cross-examined with the suggestion that he had been distracted, and had not seen the entire event. Evidence in this regard was as follows: "Q. Before anybody ended up on the ground, were you distracted by what you described as security guards? A. I wasn't really distracted by anything, sir. I was - there was an obvious altercation going on to my left, and I heard the noise from the security guards running. I glanced to my right, made a comment to my wife, something like, "Here comes the cavalry," or something like that, and then my attention was back to the left where the altercation was. Mr Hadaway was already laying on the ground."

Mr Black emphatically denied that his wife had been smoking marijuana on that evening. He candidly acknowledged that there had been some "bad blood" between himself and the publican concerning what he believed was the publican's failure to follow his licensing requirements. He agreed this had caused him to take the publican to the licensing court because activities at the hotel were, in his view, destroying his business. In this regard he explained: "Q. When did you take them to court? A. I couldn't tell you exactly, but it would have been - I know it took quite a long time, and we had - it was a long time before we actually went through the whole court process. We tried to go through mediation with the police; it didn't work. We tried a lot of other avenues to try and get the licensing police to enforce; nothing happened. Our final word was from the Licensing Police, "Take a note of everything that happens outside that hotel or inside that hotel you can see, and then take them to court." So I couldn't exactly tell you. It would have been maybe 2005. I couldn't exactly tell you, sir, no."

Mr Black stated that the configuration of the balcony of his premises was such that he had a good line of sight to the scene where the incident occurred, the estimated distance being some 70-80 metres from his vantage point.

Mrs Kathleen Black gave evidence of her observations of the events. She said she was on the balcony of her premises some time after 9.00pm after she had finished her work for the day. She said she was having a drink or two, relaxing and watching the night go by. She said her attention had been drawn to the occurrence of an incident and she heard shouting. She said she had seen two men leave the nearby hotel and walk past their property towards the roundabout. She said they were then followed shortly afterwards by two other men. The shouting of the pursuers had led her to believe or to sense that a fight was about to start.

She said that when the first pair had reached the roundabout, one of them walked away and the other, who turned out to be the plaintiff, turned to walk an estimated distance of about 10 to 20 metres towards those who had been following him. She said she then observed one of the men who were following strike the plaintiff who then fell to the ground and was then punched repeatedly. She said these events occurred in Park Beach Road, not Hogbin Drive. She said at this time, the victim was not doing much about it.

Mrs Black did not agree with the proposition that the two were wrestling. She said she then heard the plaintiff screaming out "You've broken my leg." She said she recalled the assailant, and not the victim, throwing a punch. She did not agree with the suggestions put by counsel for the first defendant, namely that the plaintiff had head-butted the first defendant before falling to the ground, and that the legs of the plaintiff and the first defendant got tangled, and that they both then fell to the ground where they then allegedly wrestled.

Mrs Black denied that the assailant let the victim get up. She also denied that the victim then kicked the assailant from the ground, kicking him in the testicles. She stated that when the victim went down he had stayed down. She stated that after the fighting had ceased, she observed everyone at the scene except the plaintiff leave the scene in a close group to walk back in the direction from which they had come.

Mrs Black stated that she had made two statements to the police about these events. In her statements she said that she had seen the person standing stomp on the head of the man laying down but she could not now recall visualising this after 5 years had passed. She also said that the persons she described as security guards who were present, did nothing to intervene, and she said they did nothing to assist the plaintiff who had been injured in the attack.

Mrs Black agreed in cross-examination that in the past, she and her husband had made official complaints about noise in connection with the way the Hoey Moey Hotel was being conducted. She stated that both she and her husband had rung to make such complaints whenever they felt it was appropriate to do so. Some of those complaints had also been the subject of litigation in the licensing court.

Mrs Black stated that later that evening she saw the publican, the third defendant Mr Lindsay Archibald, come out of the hotel with one of the security guards after the fight. She said this occurred after she had rung and spoken to a hotel employee to advise that the fight had occurred. She forthrightly denied the suggestion that on the following day she had a conversation with the third defendant, Mr Archibald, in which she was alleged to have told him she could not really remember what had happened because she was "a bit pissed and stoned that night." She stated that from her balcony she had a good and unobscured view of the scene where the incident had occurred.

In her first statement, Mrs Black described the approach of the security guards whilst the fight had been proceeding. She said she thought they would break up the fight but "they just stood and watched". She said she called the police and the ambulance and she called Mr Miller at the hotel to tell them what had happened. She said Mr Archibald and Mr Miller then arrived, followed by the police and ambulance.

In her second statement, Mrs Black expanded upon her earlier statement, including the following effect: "… 6. The balcony is five metres from the road and my vision was not obstructed. The two males up the road continued walking until they reached the roundabout. The other two males were about 30 metres behind them. The taller guy of the males sent the shorter male away and walked back towards the two males.

7. When they were face to face one of the two guys who followed this male began yelling and swearing at him. I don't remember what he was saying. The taller male appeared to ask what was wrong. One of these two guys then used one of his fists to punch the tall male to the head. This caused the male to drop to the ground I don't remember the male kicking him to the leg. The male then began kicking the guy on the ground. I don't remember what leg. It looked pretty forceful. The male tried to get this guy of (sic) the ground but the tall guy could not get up. The tall guy was saying, "You've broken my leg, you've broken my leg." I saw the male using his leg, I don't remember which one to stomp the guy on the ground. It looked to me that he stomped him to the head. I saw him do this once. I saw two Security guards walk up from the Hoey Moey towards the fight. I don't remember what they looked like.

8. The guy on the ground was not moving and the other guy got off him. The male then walked back to the Honey Moey Motel and his friend followed. They left the taller guy on the road. I saw the two Security guards I cannot remember what they looked like begin to walk back with the male.

9. My husband walked down to the guy on the road and I called the Police on the telephone and I called the Hoey Moey and spoke with Lindsay Archibald. I told him that his bouncers just witnessed the fight and he should do something about it.

10. A couple of cars had stopped and some people dragged the tall guy off the road. I called the Ambulance and told them what happened. I spoke to a female officer over the balcony and I saw my husband speak to her."

Mrs Black said that the plaintiff had not run back towards the first defendant prior to the fight. She denied seeing the plaintiff throw a punch beforehand. She was asked whether the two were on the ground wrestling. Her evidence in this regard was as follows: "Q. Wrestling around together. A. The victim hit the ground, pretty much from the start, and stayed there. And the assailant - if I can use the word - pummelled him, I guess, from, from above and got closer to him and - at the ground and he was always above him."

Mrs Black clarified this evidence to state that the assailant had not been lying on top of the victim or spread out the rather was possibly straddling the victim with knees on the ground. She said there was not "much wrestling going on" but rather "the assailant punching the victim. The victim didn't seem to be doing much about it at all."

Mrs Black also disagreed with the proposition that the victim had kicked the assailant in the testicles whilst the victim was laying on the ground. She did not recall the victim attempting to get up from the ground after he had gone down. She said that he went down and stayed down.

In cross-examination by Mr Parker, Mrs Black agreed that she and her husband had made noise complaints about the hotel. She denied having a campaign against the hotel although her husband had taken the publican to the licensing court. She emphatically denied being "pissed and stoned that night" and explained that they were not words that she used. She also emphatically denied telling Mr Archibald that her memory was a bit hazy because she had been "stoned" that night.

Mrs Black stated that the security guards she saw that evening were guards she had seen working at the hotel. She stated that she had vision of the scene of the incident from where she had been standing. She stated that she had seen the group comprising the assailant and the security guards go back to the hotel after the incident.

The first defendant called evidence from Mr James Carroll, an accounts manager, who preferred not to disclose his address or place of employment. He was acquainted with both the plaintiff and the first defendant. The effect of introducing his testimony was to raise issues concerning the credibility of the testimony of the plaintiff on matters upon which the plaintiff had given prior evidence, both in these proceedings, and in the earlier Local Court proceedings. There were 6 such matters raised by the evidence of Mr Carroll. One of those matters involved an alleged admission by the plaintiff against his own interests.

By way of background, Mr Carroll said he had met the first defendant in 1997, whilst coaching a rugby league team of which the first defendant was a member. He said he had also worked with the first defendant as a landscape gardener or landscaper. He said he had first met the plaintiff in 1998 whist renting a granny flat from a friend of the plaintiff, noting that the plaintiff moved into that flat when he, Mr Carroll, moved out on the occasion of his marriage. Mr Carroll confirmed that to his observation, a state of friendship had existed between the plaintiff and the first defendant during the time the two of them had shared accommodation in Coffs Harbour.

Mr Carroll stated that over the course of time, after the fight in question, he maintained his friendship with both the plaintiff and the first defendant, keeping a neutral stance on the matters at issue between them, and continuing to see them separately. He said he had provided the plaintiff with assistance with transport between his home and various medical and other appointments following the injury in question.

The first matter raised by the evidence of Mr Carroll was that he stated he was present at the jointly rented property at the time "near when they moved out". He said apart from some stains on the carpet, the premises were not damaged in any way. It seems that this evidence was called to contradict the plaintiff's evidence that the first defendant had damaged the property. In my view, this evidence is of no probative value because of its vagueness and lack of specificity as to time.

The second matter raised by the evidence of Mr Carroll was a statement attributed to the plaintiff, and made on a number of unspecified occasions, to the effect that the plaintiff was looking to get about $1.2 million in financial compensation from this litigation. On its own, I considered this to be a matter of neutral significance to the issue of the plaintiff's credit. Whether or not, and in what detail the plaintiff may have discussed with his friends the issue of possible quantum in these proceedings, has no bearing on the credibility of his testimony. This issue was not raised with the plaintiff as a credit challenge.

The third matter raised by the evidence of Mr Carroll was an alleged admission by the plaintiff against his own interests. In this regard, Mr Carroll stated that on a date he said he could not remember, he recalled the plaintiff approaching him at a hotel bar one afternoon to borrow $20 from him. He claimed that the plaintiff had, for some unknown reason, told him that in the fight between himself and the first defendant "Our legs got tangled up together and I fell over. When I tried to get up, I fell over again and I realised my leg was broken".

Mr Carroll claimed that this conversation caused him to be "dumbfounded". He claimed he did not know what to say, and left the table very shortly thereafter, leaving the hotel to go home and discuss this information with his wife. After discussing the matter with his wife, knowing that the first defendant was facing a possible sentence in connection with a criminal charge over the events in question, he formed the opinion that he did not "want that to happen if the situation was basically an accident". Mr Carroll could not recall the time at which this alleged conversation took place in relation to the first defendant's trial.

In his answer to questions in cross-examination from Mr Parker, Mr Carroll made it clear that following this alleged conversation with the plaintiff in a hotel bar some time after the events in question, he believed from what he was told, and had formed the opinion, that the injury sustained by the plaintiff was due to an accident, rather than as a result of an assault by the first defendant.

A question therefore arises as to the credibility of Mr Carroll's belief in view of the plaintiff's facial injuries, particularly since Mr Carroll stated that he saw the plaintiff in hospital when he visited him there on the day after the fight. Mr Carroll undoubtedly formed an opinion as to the nature of the underlying facts concerning the events which led to the plaintiff's injury. It is clear from his evidence that his opinion led to him developing a sense that an injustice had been done to the first defendant in that a criminal charge had been brought. In my view these factors are relevant considerations to be taken into account when assessing the credibility and the probative value of the evidence of Mr Carroll.

When Mr Carroll was cross-examined by Mr Gross QC concerning the information he had given to the first defendant's solicitor about his conversation with the plaintiff in a hotel on the unspecified date, he gave the following evidence: "Q. How did you know that what you were going to say was what Mr Robinson's solicitor, Mr Woolknow, said he knew? A. Because that was my - that was what I knew about the case, is that I couldn't - I don't know any more than what I previously knew. The only information I had about - I wasn't even there at the fight. The only information that I knew about it was, originally, that Heath Robinson's side kicked Graham Hadaway. That was the information that I was told in the first instance. Heath was always maintaining that it was an accident, and then at sometime after the accident, whilst trying to maintain a friendship with Graham and Heath, Graham admitted to me that their legs got tangled up together, he fell over, and when he tried to get up he fell over again and realised that his leg was broken.

Q. Yes. A. That was it, that's all I know about the incident, and that - "

Mr Carroll's opinion to the effect that the plaintiff's injuries were due to an accident rather than the alleged assault was obviously based on hearsay, and as such his opinion is therefore an irrelevant consideration. Whether or not the statement attributed to the plaintiff by Mr Carroll should be regarded as an admission made by the plaintiff against his own interests, is a matter I shall consider in my analysis of credit issues.

In the fourth matter raised by the evidence of Mr Carroll was his claim that some months after the conversation that was alleged to have taken place in a hotel bar, he received telephone calls from the plaintiff threatening his life, and the life of his family, that is, after he had passed on to the first defendant the information he said he had acquired from the plaintiff, having in the meantime severed his connection of friendship with the plaintiff as a result of the perceptions that arose in his mind from the alleged conversation. In this regard, his evidence concerning those alleged threats, and his action in reporting the matter to the police, was as follows: "Q. What did he say? Again, using the first person, if you can. A. "You're dead. You're going to be found in the gutter. Your life isn't worth living. Your family isn't going to have a father. Your wife is going to be without a husband. Your family's not safe. You're a cunt. You're a dog." Basically, you name it, he said it.

Q. What did you do? A. I was very calm. I said, "Mate, I don't want to talk about it," and I'd say, "Don't ring back," and I'd hang the phone up and then it wasn't until I said, "I'm calling the police. Don't ring back."

Q. What happened after that with the phone calls? A. I think I got another one phone call and then it stopped.

Q. What did you do about it, if anything? A. I reported it to the police, because I was in fear of my life.

Q. In reporting it to the police, what did you do? Did you attend the police station? A. Two police officers attended my home, and they referred me to contact the Coffs Harbour detectives the following day, which I did. They should - the detectives thought--

Mr Carroll claimed he received 7 or 8 such calls within the space of about an hour and-a-half.

In this regard the first defendant tendered Exhibit D1.3 which comprised a police running sheet record of Mr Carroll's report of the alleged calls by the plaintiff to his home. A careful review of the police record comprising Exhibit D1.3 reveals that it contains no threats against Mr Carroll's family as claimed by Mr Carroll, although the police recorded Mr Carroll's concerns over the welfare of his family, which is a different matter. It is also of interest to observe that the document states "… Until a statement is obtained from the victim [Mr Carroll] this is for record only". There is no evidence that the report was followed up, or that the foreshadowed statement was in fact obtained.

When Mr Carroll was cross-examined about the absence in Exhibit D1.3 of any reported threats made against his family, he asserted that the information he had provided to the police following the alleged threats had been incorrectly recorded by the senior constable. The record in question was created by the police at 2.27am on the morning of 30 June 2006.

Mr Carroll denied the suggestion that he had invented a dramatic conversation with the plaintiff in order to assist the first defendant's litigation problems.

In cross-examination by Mr Gross QC, Mr Carroll acknowledged that the state of friendship that had previously existed between himself and the plaintiff, had been terminated by the plaintiff in the course of a telephone call between them. That call took place after the plaintiff had become aware of Mr Carroll's communication of the alleged conversation to the first defendant. His evidence in this regard was as follows: "Q. Yet, did you understand that when Mr Hadaway rang you, he was complaining about he'd heard that you'd told Robinson you'd just - that he had told you he got injured just falling over? A. No.

Q. In any event, during the telephone conversations, was it clear to you that Mr Hadaway was angry at you because you were maintaining a false and wrongful version of what Mr Hadaway had told you. Is that right? A. Yes, that's right, yeah.

Q. Did he tell you that, in effect, you were no longer his friend. A. He told me.

Q. And he told you you were a fuckwit. A. Yep.

Q. And, basically, he made clear that the friendship was over. Is that right? A. Yes.

Q. Did he indicate to you that he was very upset that you were maintaining to Mr Robinson that Mr Hadaway had said something about how he got injured when, in fact, Mr Hadaway had not said that. Did you understand that was what Mr Hadaway was complaining of to you in the telephone conversations? A. I would - believed it was to that effect, yes.

Q. What I put to you is that there were no threats made to you in terms of physical injury to you or death to you or any harm to your family. Do you agree with that? A. No, because if I didn't feel threatened, I wouldn't have called the police."

The fifth matter sought to be raised by the evidence of Mr Carroll concerned his alleged knowledge of the plaintiff's alleged gambling habits in around 2003 and 2004. I ruled that this evidence was inadmissible as it was simply opinion evidence as to Mr Carroll's views on the plaintiff's character or credit issues and did not relate to any fact in issue. It was also unfairly prejudicial.

The sixth matter sought to be raised by the evidence of Mr Carroll involved an attempt to describe the observations of Mr Carroll concerning the alleged habits of the plaintiff in connection with the use of cannabis or marijuana. I also ruled that this evidence was inadmissible as it was simply opinion evidence as to Mr Carroll's views on the plaintiff's character or credit issues and did not relate to any fact in issue. It was also unfairly prejudicial.

Mr Carroll recounted his observation that the first defendant was quite fit physically in 2004 apart from a knee complaint. That evidence was at variance with the evidence proffered by the first defendant on the issue of his own health and fitness during that period.

When Mr Carroll was confronted with the photographs of the plaintiff comprising Exhibit "G" he said of the facial injuries that were apparent from those photographs, that "… he [the plaintiff] wasn't in that state when I saw him". This evidence was later explored with Mr Carroll in the following terms: "Q. And you said that, on looking at those photographs, the plaintiff didn't look like he appears in those photographs when you saw him in hospital. Was that the effect of your evidence? A. Yes. Yeah, well, these photos look like it was taken directly after the incident, but I saw Graeme the next morning and he didn't have blood coming down his face. The photos just aren't consistent with what I saw Graeme. He had a couple of grazes.

Q. Looking at those photos and thinking back to your knowledge of the appearance of Mr Hadaway as you recall it, are you able to tell us whether or not you're of a view that his face appears swollen in those photographs? A. Not really, no.

Q. You mean not able to say or you don't think it is? A. I don't think his face looks swollen in these photographs."

With the exception of the first and sixth matters arising from the evidence of Mr Carroll and referred to above, I will consider the foregoing matters when assessing of the credibility of Mr Carroll's evidence.

In the principal contest between the plaintiff and the first defendant there was a background of interpersonal difficulties. Those difficulties were informative of the animosity that was evident between these parties at the trial.

As there were many issues involving credit, it is convenient to undertake a preliminary review to identify the substantive credit issues and the subsidiary credit issues that could have a bearing on the ultimate issue of contest between the plaintiff and the first defendant.

The issues between the plaintiff and first defendant

The animosity between the first defendant and the plaintiff can be summed up as follows. For the plaintiff's part, apart from the issues arising from the fact of his injuries and the aftermath of those injuries, the plaintiff claimed that the first defendant had stolen some of his belongings, had owed him rent and had caused damage to the premises in which they lived. On the other hand, the first defendant made it clear that he held an adverse view as to the plaintiff's honesty, his morals, his truthfulness, his alleged involvement with drugs and alcohol abuse, his gambling, and his alleged financial irresponsibility. It was plain from the evidence that the first defendant harboured obvious ill-will towards the plaintiff. It was also plain that the plaintiff did not think well of the first defendant, and in fact he candidly admitted that when he was at the hotel on the afternoon in question he took the opportunity of badmouthing the first defendant to anyone who was prepared to listen.

Having surveyed the background evidence of the past interpersonal issues, problems and attitudes that subsisted between the plaintiff and the first defendant, I consider that the only true issues requiring focus from that historical array of problems are the events surrounding the alleged assault itself. However, the determination of those matters requires the reckoning of a concluded view of the credibility of the testimony given by the various witnesses, on both the critical issues, and on some of the peripheral issues.

On the ultimate issue of whether the plaintiff had been assaulted as alleged, there are two competing scenarios.

The first such scenario is the plaintiff's claim that he was attacked and unlawfully assaulted by the first defendant whilst in the street near the roundabout. His claim is that in the assault, he was thrown to the ground after a leg pinning and pushing manoeuvre that was executed by the first defendant, and which had the effect of fracturing the plaintiff's lower left leg as he fell to the ground. The plaintiff also claimed that whilst he was on the ground and powerless to defend himself, the first defendant punched, pummelled, kicked and stomped upon him. The claim concerning these events was against the background of the first defendant having advanced skills in martial arts.

The second and competing scenario is that which was claimed by the first defendant, namely, that the plaintiff had initiated a fight between them, and had attacked and head-butted him, which caused them both to physically engage so that their legs became entangled, which in turn caused them to fall to the ground and wrestle, and in the process, the plaintiff's lower left leg became fractured. The first defendant denied the punching that was alleged by the plaintiff. The first defendant also claimed that when he got up from this physical engagement, the plaintiff kicked him in the testicles whilst the plaintiff was still laying on the ground.

Essentially, the ultimate credit issue between the plaintiff and the first defendant involves determining, on the balance of probabilities, which of these two competing versions of events was the more likely or more probably than not, correct. This task requires not only a consideration of the evidence of the plaintiff and the first defendant, but also a consideration of the entire body of evidence that was called in support of the respective positions of the parties.

The issues between the plaintiff and second and third defendants

The credit issues between the plaintiff and the second defendant involve a consideration of the evidence of Mr Drum, Mr Militoni, Mr Webb, Mr Miller, Mr Nelson and Mr Archibald.

Mr Drum's evidence as to background events occurring within the hotel

The plaintiff's evidence as to the animosity exhibited towards him by the first defendant whilst in the hotel premises on the afternoon and evening in question was supported by the evidence of Mr Drum. Whilst Mr Drum was not a witness to the subsequent physical fight or to the alleged assault, allowing for some variations in the timing of the events, in my view he gave credible evidence as to the first defendant's conduct towards the plaintiff in the hotel premises on the afternoon and evening in question. The defendants sought to make something of Mr Drum's perception as to the timing of events, however, I thought this was of little or no importance in the context of the hotel setting where he would not have been expected to have made accurate observations as to the passing of time.

In this regard, Mr Drum said, and I accept, there were a number of incidents involving the plaintiff and the first defendant in the hotel bar on the night in question, occurring some time apart. I accept the evidence of the plaintiff and Mr Drum to the effect that the first defendant had approached the plaintiff and had grabbed him by the shirt collar from across the table, and in the course of doing so, offered to fight the plaintiff outside, an offer which the plaintiff declined.

I also accept the plaintiff's evidence that when this incident occurred it was accompanied by aggressive behaviour on the part of the first defendant, towards him. This evidence is not in controversy as it is supported by an admission made by the first defendant, in which he said he had slapped and grabbed the plaintiff by the collar, in an alleged response to something the plaintiff had allegedly said to him concerning his mother, and to which he had taken offence.

Mr Militoni's evidence concerning earlier events in the hotel

The available evidence of Mr Militoni, a hotel employee, was limited to exhibits. I do not regard the limited and unexplored evidence from Mr Militoni as being contradictory of the foregoing findings because in his statements and evidence in the written materials tendered, he stated that he had not observed the face-slapping incident, which the first defendant acknowledged to have in fact occurred. The credibility of Mr Militoni's evidence could not be assessed other than for its face value due to his absence.

Mr Miller's evidence concerning events in the hotel

I do not regard Mr Miller's evidence to be contradictory of the plaintiff's evidence that whilst they were in the hotel the first defendant had grabbed him by the collar, and had been abusive towards him. This is so because, as Mr Miller claimed, he was responsible for running the busy bar, and had not observed all of the interchanges between the first defendant and the plaintiff. That said, I had other reservations about the truthfulness of Mr Miller's evidence in general, a matter to which I will return in relation to other topics.

I therefore find that the second critical incident involving the first defendant grabbing him by the collar occurred in the manner described by the plaintiff. I find that the occurrence of this event then led Mr Miller to recognise that there had been a disturbance in the bar area which comprised an incident involving the first defendant and the plaintiff. I find that this incident was of sufficient significance to lead Mr Miller to conclude that he should act to separate the plaintiff and the first defendant whilst they remained within the hotel premises. I also find that this led Mr Miller to inform the security guard, Mr Nelson of the fact that there had been an altercation involving the first defendant and the plaintiff. I shall return to this topic in my consideration of Issue 3.

Conflicting versions as to events leading to plaintiff's ejection from the hotel

What then followed, was also the subject of conflicting testimony. On the one hand the plaintiff claimed that, after some time, during which he had adhered to Mr Miller's request that he remain in the bistro on the other side of the bar, and keep himself separate from the first defendant, he felt he was able to approach Mr Drum in the bar area where he had been playing pool, in order to speak with him.

The plaintiff claimed that at that time the first defendant became aggressive towards him and offered to fight him outside. On the other hand, the first defendant claimed that, against the background of the plaintiff having made threatening gestures towards him, including by the movement of his index finger across his throat, the plaintiff approached him with aggression, and swearing at him, and in these events uttered words that conveyed a threat to kill him.

What is not in dispute is that on whichever of the above competing versions was correct, these events led to Mr Nelson, the security guard on duty at the hotel who had been alerted by Mr Miller to the fact that there were interpersonal problems between the plaintiff and the first defendant, approaching the plaintiff and then ejecting him from the hotel. Mr Nelson then watched to see the plaintiff walk, on Mr Nelson's version, some 10 metres or so away from the hotel before he himself re-entered the hotel to return to his normal duties.

At this point, putting to one side the content of the alleged hostile conversations and communications between the parties whilst they were still in each other's presence in the hotel, a number of credibility issues arise and which need to be determined in order to arrive at findings of fact on the principal issue in dispute between the parties.

In determining the sequence of events that occurred in the lead-up to and in the course of the fight in question, in addition to determining matters of conflict in the evidence of the plaintiff and the first defendant, it is necessary to assess matters of credibility of testimony arising from the evidence of Mr and Mrs Black, Mr Webb, Mr Nelson, Mr Miller, Mr Archibald and Mr Carroll. As the evidence of the plaintiff and the first defendant is in polarised conflict, it is convenient to continue the analysis of these latter witnesses before concluding the analysis with a consideration of the conflicting evidence of the plaintiff and the first defendant.

It is appropriate to examine the credibility of the evidence of Mr and Mrs Black at the outset as they were completely independent of either the first defendant and the plaintiff. It is also appropriate to examine their evidence at the outset because, according to their evidence, their attention had been drawn to the commotion in the street in the lead-up to the impending fight, and because I consider that they were located in a good position to observe the evolution, progress and conclusion of the fight.

To the extent that in the past, Mr and Mrs Black, as managers of a nearby motel, had experienced conflicts and difficulty with the hotel management over noise and related issues, as this affected their business, this history needs to be considered when assessing the credibility of their testimony. That said, I do not consider such factors had a part to play on the structure and content of their evidence as they were no longer involved in that business. In coming to that view I have considered the possibility that there may have been some past grievances or a possible undercurrent of disgruntlement which could have actuated them to structure their evidence so as to favour the plaintiff and to disadvantage the defendants. Having analysed their evidence, I have concluded that I should disregard such possible factors as being speculative as I did not get the slightest hint that such factors were present or had influenced the content of the evidence of Mr and Mrs Black. In my view they gave their evidence in a straightforward and entirely credible way.

In weighing the evidence of Mr and Mrs Black, I also considered the fact that their evidence was along similar lines, and that as a couple, over time they had the opportunity to collaborate concerning the content of their evidence. That said, I do not consider this to have been a factor that determined the content of their evidence.

I came to that view not only because their evidence was inherently plausible, but within it there were some minor details that did not entirely dovetail. On my analysis, this suggested they had not collaborated in discussing the evidence that they would give. An example of such a minor matter was the slightly differing recollections of Mr and Mrs Black concerning the structural configuration of the balcony from which they had made their observations of the scene of the fight. The differences in detail on the matter, whilst of no material significance, in my view nevertheless served to confirm the credibility of their evidence by tending to suggest an absence of material collaboration. It would be unrealistic to assume that as husband and wife, they had not discussed aspects of the events in question, however, I do not consider that they did so in a manner that detracted from the credibility of their testimony.

It was submitted on behalf of the defendants that on the night in question, both Mr and Mrs Black were so affected by alcohol and marijuana that they could not have reliably made the observations that they claimed to have made. They denied this suggestion. Mr Black conceded he may have had three or four drinks of bourbon and coke from cans but was not intoxicated. Mrs Black denied being intoxicated or affected by marijuana. Mr Black denied that his wife was affected by marijuana and there is no basis for asserting that he was affected, as claimed by Mr Archibald because this question was not put to Mr Black.

I consider that Mr and Mrs Black each gave credible evidence of their observations of having seen the events that led up to the fight between the first defendant and the plaintiff. They were independent of the defendants and they were in a good position to make the observations which they described. Furthermore, the observations they made were not inherently improbable. The area where the fight occurred was well lit as described by Mr Black, and they were at a sufficiently close distance, and without significant interruption to their view of the scene of the fight and the aftermath of the fight. I also accept as credible the evidence given by Mr and Mrs Black as to the manner in which the fight proceeded, as to the number of persons who had been present at the scene and from where they had come, and what was happening at the time.

In arriving at these findings, for the reasons that follow, I prefer the evidence of Mr and Mrs Black to that of the first defendant, Mr Webb, Mr Nelson, Mr Archibald and Mr Miller.

I found Mr Webb to be an unconvincing and unreliable witness on the matters of contention in these proceedings. I find this to be so because Mr Webb was an acknowledged alcoholic at the time, and had consumed a considerable amount of alcohol. I consider that on the basis of that evidence he was too intoxicated to make any reliable observations on matters where accurate recounting of events was required. Further, I consider that his loyalty and allegiance to his mentor, the first defendant, to whom he looked up to and admired, and to whom he was grateful for assisting him in dealing with his life issues, had coloured and influenced the content of his evidence in a non-objective and unreliable way.

In my view, Mr Webb's evidence was significantly influenced by the first defendant. For example, he made references to "we" concerning the decision to leave the hotel because the evening had been ruined, indicating an empathy for the first defendant's position.

As to the occurrence and details of the fight itself, I consider Mr Webb's evidence to lack credibility. His evidence had within it indications of rehearsal with the first defendant in certain areas, for example the reference to the "effing leg" as a euphemism, the reference to the fight as a "wrestle", and the reference to the plaintiff having allegedly been "kicking as people do when they are on the ground". In addition, there was the manner of his reference to the first defendant's wallet and the description of walking "the other way around", that is, through the nearby vacant lot, to avoid the scene of the altercation, which made no sense because, to return to the hotel simply required them to walk away from the scene directly back to the hotel, as was described by Mr and Mrs Black as being the case.

A further matter that caused me to doubt the evidence of Mr Webb was his statement that the plaintiff was "always going on that he was an old school boxer". There was no evidence that he knew the plaintiff beforehand and that he had been privy to such statements. I consider that he had obtained and rehearsed this statement of detail from his contact with the first defendant, rather than recounting this evidence from his own perceptions drawn from any statements by the plaintiff.

Mr Webb's inability to fully comprehend questions, taken together with his acknowledged condition of ADD left me with considerable doubt as to whether he had reliably related his evidence according to facts rather than conclusion and influence due to considerations of loyalty arising from his friendship with the first defendant.

In my view a further matter that undermines the reliability of Mr Webb's evidence was his concession that his memory had faded and become overshadowed by having to deal with other issues in his life. I also found his evidence of having his memory "jogged" during cross-examination to be unconvincing and convenient rather than factual.

As to the events of the fight, I consider that Mr Webb was at pains to ensure that he was not providing any detail within his evidence that might adversely reflect upon the position of the first defendant. For example, he said he was present at the time of the fight and denied seeing the first defendant punching, kicking and stomping on the plaintiff. In this regard I prefer the evidence of Mr and Mrs Black, particularly the evidence of Mr Black, to that of Mr Webb because that evidence is consistent with the injuries shown in the photographs that comprised Exhibit "G" and the related evidence of injury given by the plaintiff.

In my view, Mr Webb's statement that he is "a lot clearer these days" following his previous excessive use of alcohol and his use of marijuana indicates it is highly probable that his evidence at the trial was a reconstruction of events rather than based on any actual recollections.

The only matter upon which I am prepared to accept the evidence of Mr Webb as being factually correct is his evidence to the effect that he had heard Mr Miller tell the first defendant and the plaintiff to remain separate in different parts of the hotel after the altercation between the parties in the bar area of the hotel before the plaintiff had been ejected from the hotel.

I was unconvinced by Mr Webb's evidence to the effect that the plaintiff was the initiating aggressor in the altercations that occurred in the bar of the hotel, and I found his recounting of the events of the fight and who had initiated the fight to be unconvincing, insofar as it conflicted with the evidence of Mr and Mrs Black.

Mr Nelson had been told by Mr Miller that there had been an altercation and that the plaintiff had allegedly threatened the first defendant, which resulted in Mr Miller relocating the pair into separate public areas in the hotel. Based on that understanding, when Mr Nelson saw the plaintiff approach the first defendant and allegedly behave aggressively towards him, including by issuing threats, which he summed up as "yeah, drunk, angry stuff, I guess", he then ejected the plaintiff from the hotel and watched him proceed to walk a distance of 10 meters down the road before returning to his normal duties in the hotel.

The credibility of Mr Nelson's evidence concerning his actions after ejecting the plaintiff from the hotel were challenged in that it was argued that he did not return to his normal duties but, together with another of his security guard colleagues, he ran after the first defendant and Mr Webb towards the plaintiff and towards the scene where a fight then took place between the first defendant and the plaintiff. That challenge was based upon the evidence of Mr and Mrs Black and also upon the evidence of the plaintiff.

Mr Nelson claimed his attention had first been drawn to the street scene by the noise of shouting which, on the evidence, was a considerable distance away from the hotel. He denied following the first defendant to the scene. He then claimed that from a distance he had observed the plaintiff to run towards the first defendant whereupon they grabbed each other and then started to wrestle. He said that in the process, he saw them fall to the ground, following which the first defendant got up and walked off through a nearby vacant allotment.

In my view there was a credibility tension within the above cited evidence of Mr Nelson in that, on the one hand, he claimed to have seen these events, and at the same time he claimed the events were taking place too far away for him to have seen what had happened between the two when they were on the ground.

In my view the evidence given by Mr Nelson to the effect that the events were too far away for him to have seen what was happening, was inconsistent with paragraph 8 of his statement in which he said that the plaintiff and the first defendant had kept on holding each other whilst on the ground. A further inconsistency in that paragraph was Mr Nelson's statement that the plaintiff appeared to have grabbed the first defendant by the throat, suggesting that Mr Nelson was far closer in distance to the events as they occurred than he sought to convey in his evidence. This was also inconsistent with an aspect of his oral evidence in which he described the first defendant as entering into the scene of the fight "with his hands up" which suggested the plaintiff was the initiating party. Each of these matters caused me to doubt the veracity of Mr Nelson's evidence.

In Mr Nelson's statement Exhibit "W" he said that these events occurred some 20 - 30 metres from where he was standing. In my view that description places him far closer to the location where the events occurred than the impression he sought to convey in his oral evidence in which he said the events were occurring "too far away" for him to see what was happening on the ground.

A further matter which caused me to doubt the veracity of Mr Nelson was his claim that "we called the ambulance" so as to imply that he and/or others employed at the hotel had done so, contrary to the evidence given by Mr and Mrs Black. In that evidence Mr Black said he asked his wife to call the ambulance and Mrs Black said she did so. Their evidence in that regard was unchallenged. I do not accept Mr Nelson's evidence in this regard. I prefer the evidence of Mr and Mrs Black.

A further matter that caused me to doubt the accuracy of Mr Nelson's evidence was his vagueness in answering a number of questions involving detail, for example the earlier cited instance of whether or not after the fight, the first defendant reappeared at the hotel in company with Mr Webb.

Significantly, Mr Nelson's uncooperative attitude and ultimate resistance to questioning in cross-examination, details of which I have previously cited in my summary of his evidence, also caused me to doubt the veracity of his evidence.

In my view, notwithstanding his denial, I consider that Mr Nelson structured his evidence in order to escape the accusation that he had been present at the time of the fight because, if he had been present this would have looked bad for him and for his career as a security guard. I consider that for this reason, he artificially aligned his evidence to distance himself away from the scene when the fight occurred. I do not accept Mr Nelson's denial that he was not present at the scene when the fight occurred. In this regard I prefer the evidence of the observations of Mr and Mrs Black to that of Mr Nelson.

I gained the impression from the evidence of Mr Archibald that he sought to distance himself and the hotel management from any responsibility for the events of and surrounding the fight in question. I consider that he sought to do so by seeking to denigrate the plaintiff and Mr and Mrs Black.

In the case of the plaintiff, I consider that Mr Archibald sought to do so by alleging that the plaintiff had said of the first defendant "that he was going to sue him and have him shot, have him fixed up" and by citing an alleged death threat by the plaintiff to the first defendant. This was not a matter put to the plaintiff in cross-examination. It is noteworthy that the references in evidence of Mr Archibald to the plaintiff allegedly threatening to have the first defendant shot or "fixed up" were not supported by the evidence of Mr Miller, who simply stated that the plaintiff had indicated he would sue the first defendant for his actions, which is a far lesser characterisation of the interchange. I consider that Mr Miller's version of the plaintiff's utterances at the scene after the fight is more likely to be correct and I prefer Mr Miller's evidence to that of Mr Archibald in this regard. I find that Mr Archibald had overstated the content of the plaintiff's remarks made after the fight with a view to denigrating the plaintiff and to undermine the plaintiff's case.

In the case of Mr and Mrs Black, I consider that Mr Archibald sought to undermine their evidence by asserting that Mrs Black had told him that she and her husband "couldn't see past the bush or the tree", thereby suggesting that they could not have seen the events or significant aspects of the fight, contrary to their evidence. I also consider that Mr Archibald's assertion that Mrs Black had told him that she and her husband "were too pissed and stoned" and had not seen the events because they were looking at the hotel rather than at the scene where the fight occurred was a contrived attempt by him to undermine their evidence.

I consider that Mr Archibald adopted this stance towards Mr and Mrs Black because he had a negative attitude to them concerning the past history of complaints by them about the way in which the activities of the hotel had adversely affected their business and because they had previously asserted that the hotel, of which he was licensee, had failed to observe its licensing conditions, and as a result had caused him and the hotel management to incur the inconvenience of litigation in the licensing court. I considered that this history of difficulty between them had been a motivating factor for him to artificially structure his evidence to seek to undermine the evidence given by Mr and Mrs Black.

I consider that Mr Archibald was a reluctant witness who ensured that his evidence would be of no assistance to the plaintiff. In this regard, he sought to downplay any relationship, familiarity or acquaintance between the first defendant and the security guard on duty, Mr Nelson. I consider that Mr Archibald's evidence to the effect that hotel incident books had been discarded was based on hearsay, and not probative of the fact that he had asserted, particularly as he had not identified the source of his information. In my view, it is doubtful that hotel owners in such circumstances would discard business records of that kind, particularly since litigation, both of a criminal and civil nature, had been on foot.

In my view, Mr Archibald had artificially structured his evidence in the case in the manner that I have outlined above. I consider that he did so for the purpose of assisting the interests of his employers in the litigation.

It has been submitted that as an employee of the second defendant, and by the operation of the Employee's Liability Act 1991, there was no prospect of him having any personal liability arising from these proceedings. Whilst that is so, I nevertheless consider that he took the position I have described in order to protect the position of his employer and also in order to avoid criticism of his own management of the hotel at the time, a matter which could have adversely affected his reputation, career and employment prospects as a hotel licensee. In this regard, I consider that the potential for a finding in these proceedings, of a breach of duty of care on the part of his employer, would be a sufficient motive for him to take the steps that I consider he took in order to attempt to deflect criticism and responsibility for the plaintiff's injuries on the night in question.

In my view, the significant and relevant portion of Mr Archibald's evidence was that which he gave hypothetically, and which concerned the standard of care expected of staff members including security guards. He said that if he had become aware that such persons had stood by and watched a fight without intervening, he would have personally taken such personnel to the police.

Mr Miller gave his evidence in a moderate manner. He was acquainted with the first defendant and had worked with him in the past. He denied that his sympathies were inclined towards the first defendant and not with the plaintiff. I gained the contrary impression that Mr Miller was sympathetic to the interests of the first defendant in this litigation on account of his prior common employment with the first defendant as a security guard at a local nightclub. I had reservations about accepting Mr Miller's evidence concerning critical events.

I consider that Mr Miller's claimed unawareness that his former employer, the second defendant, was being sued in these proceedings, was not credible, particularly as he had been called as a witness in the case for the second defendant, on the eighth day of the trial.

I consider that Mr Miller, like Mr Archibald, had been careful to structure his evidence so as to avoid criticism of himself and of his former employers in respect of possible responsibility for the plaintiff's injuries. I considered that his interest in doing so, like that of Mr Archibald, was to protect his reputation and prospects for employment in the hotel industry. In addition, I consider that he also structured his evidence so as to avoid inculpating either himself, Mr Nelson, Mr Archibald or the hotel in any responsibility for the plaintiff's injuries. I consider that his evidence to the effect that neither he nor Mr Archibald had seen any hotel security guards in the vicinity of the fight scene should be viewed in that light.

I considered Mr Miller's evidence of the events that occurred within the hotel premises in the lead-up to the ejection of the plaintiff from the hotel, to be somewhat conflicting.

On the one hand he said that he had been busy behind the bar and had been too busy to keep an eye on the plaintiff and the first defendant in order to observe all of their interchanges, yet on the other hand, he denied that there had been aggressive and threatening behaviour and interchanges between the plaintiff and the first defendant within the hotel such that he had to intervene and separate the two of them to different areas of the hotel.

I do not accept Mr Miller's evidence that he had not observed all of the interchanges to the extent that this implied he had not seen aggressive behaviour or an altercation take place between the two, as it was inconsistent with the evidence of Mr Nelson who said that when he commenced his shift he had been told by Mr Miller that there had been earlier trouble between the plaintiff and the first defendant such that he, referring to Mr Miller, had separated them and the plaintiff had been restricted to the bistro area of the hotel.

A further apparent inconsistency in the evidence of Mr Miller which caused me to doubt his evidence was his claim that there were no loud voices in the interchange between the plaintiff and the defendant, when he formed the opinion that the plaintiff was the aggressor in the interchanges which resulted in him pulling the plaintiff and the first defendant apart during the course of their heated exchanges. The nature of his intervention when he said he pulled the parties apart connotes to my mind a confrontation that risked getting out of control.

In my view, Mr Nelson could not have acquired an understanding of the earlier trouble between the first defendant and the plaintiff, unless Mr Miller had conveyed the details of that altercation to him, as was stated by Mr Nelson in his evidence. Mr Nelson was called by the first defendant on the ninth day of the trial. Counsel for the second and third defendants did not challenge the evidence given by Mr Nelson concerning his evidence as to what Mr Miller had told him of the history of altercation between the plaintiff and the first defendant on the night in question, and of the fact that Mr Miller had told him he had separated them into different areas of the hotel premises. In my view this is a further reason for discounting and not accepting Mr Miller's evidence as to the events occurring inside the hotel before the plaintiff was ejected.

I therefore do not accept Mr Miller's denial that he heard the first defendant invite the plaintiff outside of the hotel premises in order to have a fight with him.

Before analysing the credibility of the remaining competing testimony of the plaintiff and the first defendant it is convenient to deal with the credibility of the evidence of Mr Carroll because, in assessing the credibility of the evidence of the plaintiff, it is necessary to consider the relevance of the evidence of Mr Carroll. In my view, for the reasons that follow, the evidence given by Mr Carroll in these proceedings must be treated with a great deal of caution.

First, I consider that Mr Carroll did not have a high regard for the plaintiff and I consider this is a matter that should be considered when weighing his evidence as I consider this was reflected in his testimony.

Secondly, I consider that Mr Carroll gave disingenuous evidence concerning his observations of the plaintiff's injured state when he saw him in hospital the day after the fight. I find that his attempt to downplay the nature and extent of the plaintiff's facial injuries that were evident in the photographs that comprised Exhibit "G" was not credible. I find that his evidence in this regard was a partisan attempt on his part to try and damage the plaintiff's credibility in this case. In coming to this view I am conscious of the general limitations on interpreting photographic evidence, however this is a case where I am satisfied the plaintiff gave credible evidence of the injuries shown in those photographs: Angel v Hawkesbury City Council [2008] NSWCA 130.

Thirdly, I consider that the evidence of Mr Carroll concerning the alleged conversation he had with the plaintiff in a hotel bar, in which he said he had gained an understanding that the plaintiff's injuries were accidental rather than deliberately caused by the first defendant as a result of the alleged assault, was based on his over-reaction to and interpretation of the conversation in question.

This is evidenced by the alacrity with which Mr Carroll formed an adverse view of the plaintiff's probity as a result of the alleged conversation. Further, I consider Mr Carroll's described reaction to the alleged comment was indicative of a bias towards the first defendant and against the plaintiff if indeed the interchange had occurred as he described it. I consider this to be so because, notwithstanding that he claimed to be a neutral friend of both the plaintiff and the first defendant, he quickly jumped to the interpretative conclusion that the plaintiff had fabricated his account of events without taking the time to ensure there had been no misunderstanding of the conversation on his part. In my view Mr Carroll's description, in which he thought the cause of the plaintiff's injuries were "basically an accident" should have no probative value. In my view the circumstances do not warrant that Mr Carroll's version of a conversation be regarded as an admission by the plaintiff against his interests concerning a disputed matter of fact. I consider this to be so especially where the accounts given by eyewitnesses, notably Mr and Mrs Black, suggests otherwise.

Fourthly, I do not accept Mr Carroll's evidence that the plaintiff had made threatening telephone calls to him at his home as he alleged in his evidence in chief. In coming to that view, I considered it significant that in Mr Carroll's initial report to the police, there was no mention made of his primary concern, namely the safety of his family. I also regard it to be significant that on a matter of such concern, he did not follow the matter up with a statement as the underlying events he was alleging against the plaintiff involved allegations of very serious criminal behaviour. I do not accept Mr Carroll's claim that the police officer who had received his complaint about the alleged telephone calls from the plaintiff had inaccurately recorded the substance and detail of the content of the alleged calls. Instead, I accept the submission made on behalf of the plaintiff that Mr Carroll had invented a dramatic conversation with the plaintiff in order to assist the first defendant in his litigation issues with the plaintiff.

In my view, the evidence given by Mr Carroll concerning the state of the premises near the time the plaintiff and the first defendant moved out was of no probative value to the determination of any material issue between the parties. Similarly, the evidence proffered through Mr Carroll concerning the plaintiff's monetary expectation from this litigation, if correct as stated, did not of itself raise any relevant credit issue against the plaintiff.

I have therefore concluded that the evidence of Mr Carroll is of no assistance in determining any factual matter in issue in these proceedings.

Credibility of the testimony of the plaintiff and the first defendant

The result of my review of the testimony of the various witnesses indicates that the essential credibility contest on the plaintiff's claim concerning the initiating cause and the effects of the fight between himself and the first defendant is to be resolved by a consideration of the competing evidence of these two parties, aided by the credit findings I have already stated in respect of the other witnesses who gave evidence.

At this point it is convenient to start with an assessment of the reliability of the testimony of the first defendant. In this regard, for the reasons that follow, I formed the view that the first defendant's evidence was generally unimpressive and unreliable on account of a number of factors: (a) On his own account, the first defendant stated that his memory had been impaired since sustaining a work related head injury that involved frontal lobe brain damage. Whilst there was no medical evidence to indicate that such injury adversely affected his memory, I accept the first defendant's concession in his evidence to the effect that this was so;

(b) The first defendant's recollections would have been to some degree affected by the quantity of beer he acknowledged he had consumed on the evening in question;

(c) I consider that the first defendant sought to understate his proficiency and his skills in martial arts, and his level of achievement in those arts. I consider that he did so for the purpose of understating them and drawing attention away from his fighting skills. In this regard I consider that his denial of an ability to fell someone with a leg pivoting and pushing manoeuvre, as described by the plaintiff, was aimed at seeking to reduce and diminish the prospect of a liability finding being made against him in respect of the claim in assault, brought against him by the plaintiff;

(d) It was clear that the first defendant bore manifest resentment towards the plaintiff as a result of the fallout in relations between them over their accommodation and other historical issues. This was evident from his derogatory references to the plaintiff in which he sought to diminish the plaintiff's stature as a witness. These included criticisms of the plaintiff on peripheral matters such as his alleged gambling, his alleged involvement in drugs, his alleged abuse of alcohol, his alleged untruthfulness, his alleged stealing from the first defendant, his allegation that the plaintiff was prone to temper tantrums, an alleged attempt by the plaintiff to make a false workers' compensation claim, the plaintiff's comparatively inferior fighting prowess, and the plaintiff's propensity to behave "like a girl" . In my view these statements by the first defendant indicated to me that he was a witness who was prepared to give unrestrained and unmeasured evidence aimed at belittling and derogating his opposing party in the litigation. In my view this evidence diminished his credibility as a witness;

(e) The first defendant was quick to criticise the plaintiff on a variety of counts. I considered this was a course he undertook deliberately in order to seek to create an unfavourable impression of the plaintiff's conduct, character and credibility;

(f) I consider it was highly improbable that the plaintiff sought out a fight with the first defendant given the first defendant's known history of skill in kickboxing and the martial arts. In my view it was unlikely that the plaintiff would seek to take the first defendant on in a fight in such circumstances. I have formed this view after making due allowance for the possibility that the plaintiff may have been emboldened and disinhibited by the prior consumption of alcohol. Nevertheless, I do not consider the plaintiff would have been so foolhardy. I prefer and accept the plaintiff's evidence that at various times, and using various expressions of rebuff, he declined to fight with the first defendant;

(g) The first defendant gave a significantly variable version of relevant matters in his evidence, when his evidence in these proceedings is compared with his evidence in the Local Court proceedings: (i) The allegation that the plaintiff had made threats and vulgar remarks about the first defendant's mother was a matter raised for the first time in his evidence in these proceedings and, significantly, this was not a matter that featured in the evidence given by the first defendant in the earlier Local Court proceedings, which suggests recent invention: Exhibit "U". In my view, if those remarks had in fact been made by the plaintiff as has been alleged in these proceedings by the first defendant, I consider that the first defendant would have made reference to them in his prior evidence in the Local Court, if for no other reason than for the purposes of establishing provocation as a potential mitigatory ground of argument;

In my view, the foregoing matters provide overwhelming evidence of the first defendant's ill-will towards the plaintiff. I consider that this circumstance requires that I weigh with extreme caution the evidence of the first defendant on matters of dispute between him and the plaintiff.

In considering the plaintiff's evidence, I came to the conclusion that he gave generally reliable evidence in a measured, straightforward and unembellished matter of fact way that did not raise inherent credit issues. In my view, his evidence was not inherently improbable and it did not contain material inconsistencies so as to cause me to doubt its truthfulness. On my analysis, this circumstance indicated that the credibility of the plaintiff's evidence should be examined as to its content as well as in the context in which it arose. In undertaking that review, for the reasons that follow, I have concluded that I should prefer and accept the evidence of the plaintiff compared to that of the first defendant on key matters in dispute between the parties: (a) The plaintiff was candid about his resentment of the first defendant and with regard to his preparedness to inform people at the hotel of his views on the first defendant's alleged character deficiencies because of his view of the unresolved issues that remained between them. I consider that this candour demonstrated the plaintiff's honesty as a witness. I do not consider the plaintiff to have exhibited or replicated such behaviour or intentions in the course of his evidence. This was a factor that has led me to find that the plaintiff's evidence was credible and given in a measured way;

(b) The plaintiff was candid about his own level of intoxication on the evening in question. This is a matter that I consider should be weighed to his credit as a witness as he recounted the facts without embellishment and he did not seek to place himself in a good light;

(c) The plaintiff's evidence to the effect that the first defendant had earlier aggressively accosted him, grabbed him by the collar in a threatening manner, abusing him and inviting him to fight was supported by the observations made by Mr Drum, whose evidence I have accepted, as I considered it to be understated and inherently credible;

I consider the plaintiff's account of his refusal to fight the first defendant in the face of alleged threats from the first defendant was given reasonably and credibly. The first defendant has submitted that the plaintiff's request that he get up so the plaintiff could fight him was evidence that the plaintiff was a willing participant in the fight. I reject that submission. In my view the plaintiff only made that statement so as to halt the assault upon him or so that he could defend himself.

The first defendant submitted that the plaintiff's evidence as to the precise location on the road where the fight took place and the relative position of the roundabout to the location of the fight indicated the plaintiff's evidence was unreliable. I considered this to be a peripheral matter, particularly having regard to the observations of Mr and Mrs Black as to the fact that the fight had occurred in the vicinity. In my view the precise location was immaterial.

The first defendant submitted that since there was no support for the plaintiff's evidence in which he alleged the bystanders were egging the first defendant on, this was an indication to reject the plaintiff's version of events. I consider this to be a peripheral matter. The plaintiff asserted to Mr Archibald that "his mates" had stood by and not intervened. I do not consider the submission to have the force of damaging the plaintiff's credit.

Conclusions on credit matters as between the plaintiff and the first defendant

As there was clear evidence of ill-will between the plaintiff and the first defendant, and because they had each consumed significant quantities of alcohol before the fight in question, I considered that although I generally preferred the evidence of the plaintiff to that of the first defendant, for the reasons I have stated, I should also have regard to other evidence to assist in determining the probable sequence of the relevant events on the evening in question. I took this view because of the potential for inaccuracy to arise in the respective testimonies of the parties on account of the effect of their earlier alcohol intake, and because of the potential operation of interpersonal issues that could serve to colour the evidence given. In taking that approach, I considered that the credit of the first defendant as a witness was adversely affected by such factors, but not so the evidence of the plaintiff.

In taking that approach I concluded that I was not assisted by the evidence of Mr Miller, Mr Nelson, Mr Archibald and Mr Webb because I considered them partisan to the cause of the first defendant and for the reasons I have set out concerning the credibility of their testimony.

In contrast, I found that the evaluation of the testimony of the plaintiff and the first defendant was assisted by the independent evidence of Mr and Mrs Black as to the events of the fight and the evidence of Mr Drum as to the first defendants' behaviour towards the plaintiff and the first defendant's willingness to fight the plaintiff.

Issue 1 - Whether the plaintiff was assaulted and battered by the first defendant

I find that on account of the history of ill-feeling between the parties, the first defendant became angered when he encountered the presence of the plaintiff at the hotel on the afternoon in question. I find that the history of interpersonal difficulties between the plaintiff and the first defendant then welled up to result in a course of abusive communications between them on that afternoon, such that the first defendant then initiated violent behaviour towards the plaintiff by grabbing him by the shirt collar and slapping him in the face. In my view this constituted an unlawful assault from which no lasting physical harm resulted. I accept that these events occurred because the grabbing incident described by the plaintiff was confirmed by the observations of Mr Drum, whose evidence I accept. I also accept the first defendant's concession that in this incident he had slapped the plaintiff's face.

Other than as a matter of historical background, whether there were words or actions on the part of the plaintiff that provoked such behaviour on the part of the first defendant, this is not relevant to the analysis in considering whether or not there was a subsequent assault in the street by the first defendant upon the plaintiff. The relevance of the first defendant's conduct in grabbing the plaintiff by the shirt collar, abusing him verbally and slapping his face to the point where the bar manager, Mr Miller had deemed it appropriate to pull the pair apart and to separate them from their engagement with each other whilst they remained in the hotel, is a matter relevant to consider for the purpose of determining whether the first defendant had the capacity and the intention to assault the plaintiff in the manner claimed by the plaintiff.

In my view, the history of animosity between the antagonists and the occurrence of the shirt grabbing and slapping incident initiated by the first defendant, indicates to my mind that the first defendant had the capacity, propensity, motive and inclination for carrying out an assault on the plaintiff in the manner claimed by the plaintiff. In this regard I accept an aspect of the evidence of Mr Webb, who observed that when the first defendant left the hotel after the plaintiff had been ejected, he was in an unhappy state of mind. I find that at that time the first defendant was ill-disposed towards the plaintiff because, at the very least, he felt his evening had been ruined by him. It is against that background that I will proceed to analyse the events that subsequently occurred.

I find that when the first defendant left the hotel premises he did so at a time when he was able to and did in fact observe the plaintiff walking away from the hotel in Park Beach Road. I find that the first defendant called out to the plaintiff to stop, using his nickname "Hoon" to attract his attention. I find that at that point the plaintiff parted company with the person with whom he was walking, and turned to face the first defendant who was then in the company of Mr Webb. I find that the plaintiff then took a number of steps towards the first defendant as the first defendant continued to approach the plaintiff.

During these events there were loud verbal exchanges between the two, such that the attention of Mr and Mrs Black had been drawn to these events. At that time I accept that Mr and Mrs Black were located on their balcony above the street and were in a good vantage point from which to observe these events because there was good street lighting near the roundabout where these events were occurring. I find that at this time Mr Nelson and another security guard who was employed at the hotel that night were either running or walking quickly towards the place where the confrontation between the plaintiff and the first defendant was taking place. I find that Mr Webb was already in the vicinity, having accompanied the first defendant to that location. It was therefore apparent to someone in the plaintiff's position that four people were approaching him.

I find that in the course of these events, the shouting of insults was occurring in the street, and the first defendant was calling upon the plaintiff to fight him, an invitation which I find the plaintiff declined at the time. In this regard I accept as inherently plausible and truthful the evidence of the plaintiff. I do not accept that the plaintiff had initiated the confrontation or the physical contact that had subsequently occurred between himself and the first defendant.

It would have been foolhardy of the plaintiff to engage the first defendant in a fight where he was significantly affected by alcohol and in circumstances where he knew the first defendant was skilled in various forms of martial arts fighting techniques and where the first defendant was in the company another person, Mr Webb, with two other persons quickly approaching the scene from the hotel, one of them being Mr Nelson who had ejected the plaintiff from the hotel. In these circumstances I accept the plaintiff's evidence to the effect that he declined to fight with the first defendant on the stated ground that he was too affected by the prior consumption of alcohol to be able to do so.

I find that the first defendant ignored the plaintiff's plea not to fight and then manoeuvred his leg beside the plaintiff's leg which had the effect of pivoting he plaintiff's foot to the ground. I find that at the same time the first defendant then pushed the plaintiff over, either by a sweeping kick in the described pivoting manoeuvre or in combination with a push to the plaintiff's upper body, which caused the plaintiff to fall to the roadway, at which time the plaintiff felt a snapping sensation to his left lower leg that indicated, as was subsequently revealed, he had sustained fractures to the bones of that leg.

I find that after the plaintiff had been pushed to the ground the first defendant placed himself over the plaintiff and straddling him, so that they were both on the roadway, and in the course of these events the first defendant punched the plaintiff about the head and face, and pummelled him with his fists with some force, as was described by Mr and Mrs Black. I find that in the course of these events, the plaintiff was exhorting the first defendant to let him up so he could defend himself and avoid further injury. I find that after some further blows were delivered to the plaintiff by the first defendant, the first defendant then stood up, at which time he kicked the plaintiff whilst he was still laying on the roadway.

I find that the plaintiff did not consent to the physical contact that occurred in these events and that necessarily, the described events constituted an unlawful assault upon the plaintiff by the first defendant.

I find that the assault upon the plaintiff ceased coincidental with, and most probably as a result of, Mr Black calling out from his balcony to those assembled in the street below to the effect that he had seen the events, and was calling the police.

I find that following these events, the first defendant left the scene to walk back to the hotel in the company of Mr Webb, Mr Nelson and the unidentified hotel security guard. At that time these persons were attempting to calm the first defendant as this company of persons left the scene. In doing so, they left the plaintiff laying unattended and in an injured state, on the roadway without assistance.

I find that in the course of these events, the police and an ambulance were called by Mr and Mrs Black, and that Mr Black went to the aid of the plaintiff and provided him with a pillow and blanket to make him comfortable whilst waiting for the arrival of the ambulance.

I base these findings on my acceptance of the evidence of Mr and Mrs Black who in my view accurately recounted the observations they had made on the evening in question. It was the evidence of Mr and Mrs Black that convinced me that the plaintiff had given a truthful account of the events of the fight, notwithstanding that he was without doubt, and on its own account, well affected by alcohol consumption at the time.

Accordingly, I reject the evidence of Mr Webb, Mr Nelson and the first defendant as to their claimed observations of the events by which it was asserted that the plaintiff had initiated the fight by moving quickly towards the first defendant and then head-butting him, resulting in a grapple or wrestle to the ground. I consider that the evidence of those persons was contrived in an attempt to seek to absolve the first defendant from blame and responsibility in damages for the injuries suffered by the plaintiff. I also reject the evidence of the first defendant and Mr Webb to the effect that whilst the plaintiff was laying on the ground, the plaintiff kicked the first defendant in the testicles.

In coming to these conclusions I have preferred the evidence of the plaintiff, supported by the evidence of Mr and Mrs Black, to the evidence of the first defendant, Mr Webb and Mr Nelson. In my view these latter three witnesses had contrived their evidence in an attempt to exculpate the first defendant from any liability for the assault on the plaintiff which I have found to have occurred. I find that in attempting to do so, their common motive was loyalty and affinity to the first defendant, and in the case of Mr Nelson, a desire to protect himself from criticism for failing to intervene in the fracas between the first defendant and the plaintiff.

In coming to these findings I reject the evidence of Mr Archibald to the effect that he claimed Mr and Mrs Black were not in a position to observe or describe the events in question. I consider his evidence in that regard was actuated by the adversity of a history of prior dealings with Mr and Mrs Black rather than being purely factual.

I find that as a result of these events, the plaintiff sustained serious orthopaedic fractures to his left lower leg, as well as facial bruising and abrasions, a broken nose and other bruising injuries. In dealing with the damages evidence that flows from these events, I will review the plaintiff's injuries and the resultant disabilities in more detail at paragraphs [516] - [521] and [556] - [561] of my reasons.

Issue 2 - Whether the second and third defendants owed a relevant duty of care

There was controversy over whether or not the second defendant, Cregan Hotel Management Pty Ltd, or the employed licensee of the hotel, the third defendant Mr Archibald, owed the plaintiff a duty of care which incorporated an obligation to take reasonable care to prevent injury to the plaintiff from an assault by the first defendant after he had left the hotel premises and whilst he was in the street and away from the hotel premises.

There can be no issue that neither the second nor the third defendants had any control or responsibility for any criminal behaviour on the part of the first defendant, either within or outside the premises, in respect of an unlawful assault upon the plaintiff by the first defendant: Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254. However, I find that as a patron within the second defendant's hotel, the owner and licensee of those premises owed the plaintiff a duty of care to take reasonable care and to take reasonable steps to protect him from foreseeable injury due to the aggressive behaviour of other hotel patrons.

This duty of care was recognized by the licensee at the time, the third defendant, Mr Archibald, and the second defendant's employee, the bar manager, Mr Miller. The recognition within the hotel industry of the existence of such a duty of care was also confirmed by the evidence of Mr Jennings.

It is therefore relevant to review the evidence of these persons as to the nature, scope or content of that duty.

Mr Miller's evidence was to the effect that if patrons in the hotel had become aggressive or had been involved in confrontation, or had become involved in an altercation, the hotel staff and security guards were expected to intervene and separate them into different locations within the hotel if it was decided to allow them to remain in the hotel rather than to eject one or more of them. He was also of the view that when patrons were escorted or ejected from the hotel, it was the hotel's responsibility to ensure that within a perimeter, which he identified to be 300 metres, the ejected patron was kept safe.

Mr Miller was an experienced former security guard and hotel bar manager so he was in a sound position to define the standard of prudence in the circumstances described.

Mr Nelson and Mr Archibald gave evidence to a similar effect, and within that evidence, included within the perimeter were the areas surrounding the hotel, including the car park. Further, Mr Archibald stated that if a person was observed to be under attack nearby, his expectation was that the hotel security guards would be criticised if not sanctioned for standing by and not intervening.

This evidence is consistent with authority, in the form of two decisions of the High Court : CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; Adeels Palace Pty Ltd v Moubarak [2009] HCA 48.

There are informative passages within those decisions that are relevant to the content of the duty of care that I find was owed to the plaintiff in this instance.

In CAL No 14, at [57] of the joint judgment, the following statement appears: "57. The conclusion that, save in exceptional circumstances, publicans owe no duty of care to their customers in relation to how much alcohol is served and the consequences of serving it says nothing about whether publicans owe a duty to third parties who may be damaged by reason of the intoxication of those customers. Defendants owe duties of care not to the world, but to particular plaintiffs. Some of the arguments against imposing a duty of care on publicans to their customers may have less application where the plaintiff is a third party injured by the customer. The Supreme Court of Canada has recognised, in statements not necessary to the decision, that there is a duty of care to a third party. The Supreme Court regarded this as a logical step from the conclusion that there is a duty to the customer. In this country, since there is generally no duty to the customer, the step cannot be taken on that ground. Whether it is open on some other ground must be left to a case raising the issue."

In Adeels Palace at [26] of the joint judgment, the following statement appears: "26. In the circumstances reasonably to be contemplated before the restaurant opened for business on 31 December 2002 as likely to prevail on that night, Adeels Palace owed each plaintiff a duty to take reasonable care to prevent injury to patrons from the violent, quarrelsome or disorderly conduct of other persons. The duty is consistent with the duty imposed by statute upon the licensee and which was a duty enforceable by criminal processes. No question arises of translating a statutory power given to a statutory body into the common law "ought". The duty is not absolute; it is a duty to take reasonable care. It is not a duty incapable of performance. It is a duty the performance of which is supported by the provision of statutory power to prevent entry to premises and to remove persons from the premises, if needs be by using reasonable force. Although it is a duty directed to controlling the conduct of others (for the avoidance of injury to other patrons) it is a duty to take reasonable care in the conduct of activities on licensed premises, particularly with regard to allowing persons to enter or remain on those premises."

In Adeels Palace, at [19] of the joint judgment, the Court also drew attention to duties in respect of licensed premises in the following terms: "19. Section 125 of the Liquor Act regulated conduct on licensed premises. Section 125(1)(b) obliged a licensee not to permit on his or her licensed premises "any indecent, violent or quarrelsome conduct". Contravention of the provision was an offence. Section 103(1) of the Liquor Act permitted a licensee, or his or her employee, to "refuse to admit to the licensed premises" or to "turn out, or cause to be turned out, of the licensed premises any person ... who is then ... violent, quarrelsome or disorderly" or "whose presence on the licensed premises renders the licensee liable to a penalty" under the Act. Section 103(3A) permitted the use of "such reasonable degree of force as may be necessary ... to turn a person out" of the premises. Section 103(4) obliged a member of the police force, asked by the licensee or an employee to turn out or assist in turning out a person whom the licensee is entitled to turn out, to comply with the request and provided that the member of the police force may, for that purpose, use such reasonable degree of force as may be necessary."

Again, at [21] - [22] in Adeels Palace, the joint judgment stated: "21. In considering whether a common law duty of care should be held to exist in these cases, it is important to recognise that the provisions of the Liquor Act that have been mentioned have close analogies in other States and Territories. Though variously expressed, all States and Territories make provision for a licensee of licensed premises to remove from, or prevent the entry to, licensed premises of violent or quarrelsome persons. All State and Territory liquor legislation forbids the sale of liquor without a licence. All State and Territory liquor legislation provides for the licensing of premises on which liquor may be sold and consumed, and not only regulates the sale and service of liquor in such places, but also (as already noted) directly or indirectly regulates the conduct of persons who are on the premises.

22. It is against this statutory background that the question of duty of care must be considered, not for the purpose of developing the common law by analogy with statute law, but to ensure that the imposition of a common law duty of reasonable care of the kind now in question would not run counter to the statutory requirements imposed on licensees in all Australian jurisdictions."

In view of the foregoing statements, I consider that there is no controversy that the second and third defendants owed the plaintiff, their customer, a duty of care. In my view that duty extended to taking reasonable care to ensure that when the plaintiff was involuntarily ejected from the hotel, his safety would be given reasonable consideration especially where he had been threatened with assault by another customer who had expressed violent intentions towards him, as was the case with the first defendant in this case.

I consider that in such circumstances, in providing such reasonable consideration, it was incumbent upon the hotel staff to ensure that the plaintiff was observed to be clear of the immediate precincts of the hotel and within a reasonable perimeter, before any antagonists such as the first defendant left the hotel in order to follow the same route that had been taken by the plaintiff, whether or not that antagonist left the hotel in order to follow the plaintiff or whether they just happened to cross paths by happenstance. In this regard, I accept the evidence of Mr Miller, that a reasonable perimeter would have been about 300 metres from the hotel.

In defining the 300 metre perimeter, I consider that this aspect of Mr Miller's evidence represented the standard of reasonableness in the circumstances of this case and in respect to the particular location of the hotel in question. I reject the notion that this represented a standard of unreasonable perfection driven by hindsight considerations. The fact remains that persons on licensed premises where alcohol has been consumed are, as indicated by Mr Jennings, at foreseeable risk of mischief from quarrelsome and aggressive individuals, and this is especially so where such individuals had already made known their aggressive and combative propensities, both to the object of their aggression, and to the observation or perception of hotel staff responsible for maintaining order and the safety of customers.

In the circumstances of this case, there could have been no other reason for the hotel ejecting the plaintiff from the premises other than for the reason that there was an apprehension that an altercation might ensue and get out of control to the extent of causing harm to others, but also including to the plaintiff.

In my view, the action of ejecting the plaintiff from the premises carried with it concomitant responsibilities for the safety of the plaintiff in the vicinity of the premises in the particular circumstances where there was a known antagonist to the plaintiff, in this case the first defendant, who was still within the hotel and who was able to leave and act upon his expressed intention to fight the plaintiff unless action was taken to minimise or avoid such an event from occurring by the exercise of reasonable care.

This is quite a different notion to what was discussed in Portelli v Tabriski Pty Limited & Ors [2009] NSWCA 17 where a differentiation was made between good industry practice and the reasonable discharge of the duty of care. In my view, the duty as I have found it, was not one of guardianship of patrons as was submitted on behalf of the second and third defendants. Instead, given the obvious risk of harm to the plaintiff in the circumstances, consequent upon the threats made to him by the first defendant, including a threat to fight him and a threat to kill him, I consider that in ejecting the plaintiff from the premises, the hotel assumed a duty of care to the plaintiff along the lines I have outlined.

Issue 3 - Alleged breaches of the duty of care owed by second and third defendants

Since the case against the second and third defendants is framed in negligence, questions concerning whether or not there were relevant breaches of the duty of care owed to the plaintiff by those defendants, and whether the claimed harm suffered by the plaintiff was, in the relevant sense, caused by such alleged breaches, must be considered within the framework of the Civil Liability Act 2002.

The liability position of the second and third defendants is the same in these proceedings. Mr Archibald, as licensee of the hotel, was an employee of the second defendant, and as such, he cannot incur personal liability for the events in question by reason of the effect of s 6 of the Employees Liability Act 1991. Therefore, it is not necessary to separately consider the liability position of these defendants, for their exposure to liability is essentially the same, although the third defendant is entitled to complete indemnity from the second defendant in respect of any liability that may be found against him.

In assessing whether or not there have been any relevant breaches of the duty of care owed, it is necessary to consider the evidence of Mr Archibald, Mr Miller and Mr Nelson, together with the expert evidence of Mr Jennings in the context of the general law of negligence and the considerations that arise under the CL Act.

A convenient starting point for the examination of this issue is the expert evidence of Mr Jennings. The plaintiff tendered reports dated 1 November 2007 and 20 May 2008 from Mr Richard Jennings, an expert security consultant, risk manager and workplace assessor and trainer with 44 years of police and security industry experience, both in the UK and in Australia, including concerning security and risk management issues on licensed premises where alcohol was served : Exhibit "Q".

A particular circumstance that Mr Jennings was asked to consider involved the issue of the proper procedures to be employed in relation to exclusion of persons from hotels where such persons had engaged in threatening behaviour, or had been engaged in an altercation. In my view, Mr Jennings was suitably qualified to express opinions on these matters.

Mr Jennings focused his attention on the episodes of interpersonal aggression between the first defendant and the plaintiff whilst they had remained in the hotel premises. He stated that in his view, the hotel staff had acted correctly to separate the parties whilst they remained in the hotel premises. With regard to the circumstances in which the plaintiff was ejected from the hotel, in his report dated 20 May 2008, Mr Jennings stated: "… 31. It has been generally accepted in the licensing and security industries for many years that allowing protagonists to meet up outside of the licensed premises, will on the majority of occasions, lead to an uncontrolled resumption of the violence with many cases resulting in very serious injuries to one or more of the parties. The hotel or their security officers have no right to actually detain patrons on the site or use force to do so, but all of the principles of peaceful conflict resolution (as are taught to security officers in their license training course) imply, that one must try and persuade one of the parties to remain for as long as it may take, to allow the other party to leave the area entirely. This departure must be observed and verified before letting the other party leave. If the design of the building is such, it may be possible to let the parties leave at the same time by different exists as long as they can't just walk around the building and confront each other again. If both parties refuse to confirm to this established strategy then Police should be called to see that both parties leave the area peacefully. This strategy has been used throughout the industry for many years in this country very effectively and is generally accepted.

32. Security officers have no more rights than any member of the pubic in the street and as such, lose effective control of patrons once they leave the premises, but it is accepted that the licensee, their management and/or security personnel, must accept responsibility for the well being of persons who are entering or leaving their premises, particularly if effected (sic) by alcohol consumed on those licensed premises. There is no geographic limit to this responsibility, although some licensing courts have imposed conditions on liquor and entertainment licenses that require security officers to patrol the public street for some blocks away from the hotel, for just this purpose. In respect to this matter the hotel management and the security officers acting on their behalf, had a clear responsibility for the welfare of the person they had just observed leaving the hotel (the Plaintiff) who by his own admission was quite heavily intoxicated at that point in time. They should have made sure he safely cleared the area and was beyond the reasonable reach of the First Defendant, which I believe they did not. If the First Defendant had been properly observed whilst he remained at the hotel after the Plaintiff had left, which he clearly was not, then he should have been seen to be leaving immediately after the Plaintiff and the security personnel should have gone after him to prevent further violence until Police could get there.

OPINION CONCLUSIONS 33. It is my opinion in this matter that the management of this hotel and the security officers acting on their behalf, were negligent in allowing the violence to reoccur in the street near the hotel when the accepted separation protocol which was in general use in hotels at that time, would have prevented this violence. If these simple accepted management techniques had been used on the night then it is most likely that this Plaintiff would not have been so injured."

In his oral evidence, Mr Jennings drew attention to the scenario, that because the first defendant had already indicated that he wished to, or had an intention to, assault the plaintiff once they got outside the hotel, evidenced by a request from the first defendant to hotel staff that they be ejected for this purpose, these circumstances severely increased the risk of an assault taking place if and when these parties or, as I interpolate, one of them, were to be ejected from the hotel.

Mr Jennings added that if it were the case that additional alcohol had been consumed by the parties over a period of hours after an initial confrontation, at which time such a risk became apparent, the person who was the target of the threats would have been more vulnerable to physical attack, and less likely to be able to defend himself appropriately, thus increasing the risk of harm occurring in those circumstances.

In answer to a question in cross-examination from Mr Parker on behalf of the second and third defendants, Mr Jennings gave the following evidence on the issue of the content of the duty of care owed by the hotel management: "Q. And, of course, the licensee and the security guards, of course, have control of the hotel, and perhaps the immediate area outside, with no control over what's happening 100 metres down the road, do they? A. They have, I believe, some duty to control potentially violent situations that may occur from the actions of persons who have either got themselves intoxicated or commenced some altercation within the premises.

Q. As I understand your evidence, you are suggesting that the plaintiff may become more vulnerable because he's consumed more alcohol. Similarly, the aggressor, if you want to use that term, can become less effective at being an aggressor if they've consumed more alcohol too. A. Not necessarily, it could become more aggressive, sir."

Mr Jennings stated that the assumption was that hotel bar staff and hotel management, as well as security officers at the hotel, would be watching for instances that were likely to cause some disturbance or offence within the hotel. This is an obvious proposition in license controlled premises where unruly, quarrelsome or violent behaviour could place the licence at risk of penalties, including cancellation of a licence or risk the imposition of uncongenial conditions. Mr Jennings stated that he did not think that a 4 hour period of separation of the parties whilst they still remained in the hotel would alter the risk of an altercation between them recurring at a later time.

Mr Jennings was of the view that if additional alcohol had been consumed within that time, if anything, it would increase the risk. In this regard, he said that in his experience, consumption of further alcohol (following a confrontation) added to a potentially problematic situation that could lead to further escalation and more profound violence either because alcohol spurs on the aggressor or because it could negate the possibility of the victim being able to properly defend themselves. He also conceded, in that context, that there were variable effects, namely the intrinsic capacity of an individual to absorb alcohol and the possible soporific effects on the individual of alcohol consumption.

In effect, Mr Jennings indicated that in situations of perceived risk, depending upon who was perceived to be the greatest threat, hotel staff should take steps by observation to assure themselves that a person involuntarily required to leave the hotel would not be placed at risk of injury at the hands of another party outside the hotel premises, and that a reasonable opportunity should be given to the ejected person to clear off or move away from the area of the hotel before a potential aggressor intending harm to that person would be permitted to leave the premises.

In my view the standard expected of hotel staff, as outlined above, and as explained by Mr Jennings and Mr Miller represents a reasonable, sound and sensible approach to risk management in the circumstances in which this case arose. I accept Mr Jennings' evidence that this was the appropriate standard of care owed by the second defendant and the staff under its control on the date in question.

In my view, the evidence given by Mr Jennings was essentially confirmed by the evidence of Mr Miller, Mr Nelson and Mr Archibald, and was consistent with the principles stated in the decisions in CAL No 14 and in Adeels Palace as cited.

Having regard to the foregoing principles, and for the reasons that follow, I am of the view that the second defendant and therefore the third defendant, were in breach of the duty of care that they owed to the plaintiff in the circumstances of the evening in question.

In my view, when Mr Miller pulled apart and separated the plaintiff and the first defendant and arranged for them to remain in separate areas of the hotel, he must have been aware that there was a significant and foreseeable risk of a physical altercation occurring between the first defendant and the plaintiff.

In my view, Mr Miller must also be taken to have been aware that if the plaintiff and the first defendant had consumed further amounts of alcohol whilst they continued to remain in the hotel premises, there was an increased risk that violence could break out between them, either within the hotel premises if they came into contact with each other, or outside the hotel premises if they had occasion to encounter each other in the street within a reasonable perimeter from the hotel itself.

I consider that Mr Miller was aware of this risk because there could be no other explanation for him deciding to not only separate the pair whilst they had remained in the hotel, but to also inform Mr Nelson, as I find he did, to be watchful of the pair having regard to his earlier decision to separate them, after he had pulled them apart whilst they were engaged in a heated altercation.

In my view, at the time Mr Miller and another person, whether it be Mr Nelson or Mr Militoni, came over to separate the first defendant and the plaintiff, when the first defendant threatened the plaintiff, as I find he did, using hostile language indicating an intention to "kill" the plaintiff, "punch" him in the head, "get" him and "fight" him, the hotel assumed a duty to take reasonable care for the safety of patrons, and in particular, the plaintiff. I find this to be so especially since it was decided not to eject either or both parties, but instead to permit them to remain in the hotel and to permit them to be served further amounts of alcohol. There was no evidence that suggested that the hotel ceased serving alcohol to either the plaintiff or the first defendant once they were separated.

I consider that in these circumstances a duty of care of the kind that I have identified, was engaged by the hotel, and this required reasonable attention for its proper and reasonable discharge. From this point the conduct of the hotel staff must be gauged in the light of that duty of care. At that time it must have been apparent to the reasonable observer, including by ordinarily observant bar staff, that the first defendant, by his demeanour, attitude, gestures and language towards the plaintiff, was ready to "take a bite out of" the plaintiff.

The response of the staff was to place themselves between the first defendant and the plaintiff to separate them and require that they remain in separate portions of the hotel and under observation. That response was certainly within the array of reasonable available responses by the hotel staff. The response and the subsequent regime of observation was obviously effective, because as soon as Mr Nelson, who had been informed by Mr Miller of the separation of the pair and the reasons for it, saw the plaintiff transgress the terms of the separation request, he promptly moved in and ejected the plaintiff from the hotel.

Mr Nelson's evidence was that he was there to carry out the directions of the hotel management. His follow-on response to the ejection of the plaintiff was to observe the plaintiff walk away from the hotel a distance of some 10 metres, following which he returned to his normal duties within the hotel.

The question that then arises is whether the hotel had at that time discharged its duty of care to the plaintiff by having ejected him from the hotel premises and having then ensured that he had been seen off the premises to a distance of 10 metres following which observation of him had ceased.

In my view, on a conventional common law analysis, the hotel had not, by those actions, adequately discharged its duty of care to the plaintiff in the circumstances that prevailed on that evening. I consider this to have been the case for the reasons that follow.

First, in the aftermath of the ejection, it was still incumbent upon the hotel to keep the first defendant and his movements under observation, including to the extent of an awareness of the timing of his departure from the premises in juxtaposition to the ejection of the plaintiff from the premises.

Secondly, according to the standard nominated by Mr Miller, which I accept to be the reasonable standard to be observed in the circumstances, it was incumbent upon the hotel staff to ensure the plaintiff safely left the precincts of the hotel premises to a reasonable perimeter, in this case either to go to his nearby home by walking or by taxi, or to a perimeter of 300 metres, as was indicated by Mr Miller, and in either case, out of the way of foreseeable harm from predictable violent behaviour towards him from known antagonists who were within the hotel, in this case, the first defendant.

In my view, in the particular circumstances, it was an insufficient answer to the allegation of a breach of duty of care, to say, as was submitted on behalf of the second and third defendants, that as the plaintiff lived nearby and across the road from the hotel, it was sufficient to observe him to walk away over a distance of 10 metres from the hotel. There is no evidence that the hotel staff knew where the plaintiff lived. There is no evidence that he was observed to be walking towards his home. There could be no reasonable requirement that the plaintiff was obliged to go home at the time he was ejected from the hotel.

The second and third defendants have submitted that the assault was not a foreseeable event and that on the balance of probabilities, the post-ejection meeting of the plaintiff and the first defendant in the street not far from the hotel "was merely chance and not a meeting that could reasonably be foreseen.". I reject that submission as it runs counter to the 300 metre perimeter standard that was identified in the evidence given by Mr Miller, or anything reasonably approaching that standard.

I also reject the proposition that the meeting in the street was one of mere chance. I base that rejection on the evidence of Mr and Mrs Black concerning the first defendant calling out to the plaintiff to stop, indicating that there was a pursuit of him. The submission was not supported by the observations of Mr and Mrs Black concerning the approach of the four men towards the position of the plaintiff near the roundabout. I find that these men were the first defendant, Mr Webb and two security personnel from the hotel, one of them being Mr Nelson, who said his attention had been drawn to the noise of yelling in the street. I infer from that evidence he had not been maintaining any visual observations of the first defendant after the plaintiff had left the hotel. I consider that if he or another hotel employee had remained vigilant of the walking course taken by the plaintiff within a reasonable perimeter of the hotel, especially after an involuntary ejection, it would have been evident that the plaintiff needed protection from potential violence that might be directed to him at the time the first defendant was seen to leave the hotel and travel in the same general direction the plaintiff had taken.

In my view, it was an insufficient answer to that proposition, as was submitted on behalf of the second and third defendants, "that once a patron leaves the hotel premises or the immediate vicinity the hotel owner/licensee has no right to restrain or control such persons".

Putting aside the question of restraint, the evidence of Mr Miller was the appropriate standard of care to be observed, namely to employ "verbal judo" to cajole patrons to observe reasonable instructions. Failing that, if the first defendant had been observed to leave the hotel premises and move towards the plaintiff, including calling upon the plaintiff to stop, as occurred in this case, it did not require much effort on the part of hotel staff to take steps to prevent the plaintiff from being injured from assault by simply going to his side as a barrier or discouragement to an assault, as was done in the hotel and, if necessary, to use lawful reasonable restraint upon the intending assailant to prevent a criminal act from occurring. In this case, I consider that such discouragement would more probably than not have been effective, particularly since in the past, the first defendant had worked as a security guard at the hotel in question and would probably have been amenable to such discouragement. I consider that the "verbal judo" referred to by Mr Miller, would most probably have been effective on the first defendant, who had been a trained security guard. I therefore reject this submission.

In my view, the measures of observing the plaintiff to leave, being in a position of observing the first defendant's movements until the plaintiff was considered to be out of the way of foreseeable harm, and the facility of warning the plaintiff of the impending approach of danger, and acting to protect him if need be, including pending the arrival of the police if they needed to be summoned, were all reasonable steps that could, and in my view should have been taken as a matter of prudent and reasonable discharge of the duty of care that was owed in the circumstances. In my view, this was the standard that ought to have been applied on a prospective analysis that is required when examining the circumstances: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442 per Hayne J at [126], p 461. The hotel staff did none of these things and as a result, I consider there was a relevant breach of duty of care.

Accordingly, in my analysis of the events on the afternoon and evening in question, and from a common law perspective analysis, I have concluded that there were material breaches of the duty of care owed by the second and third defendants. This was as a consequence of the vicarious liability of the second and third defendants in respect of the staff on duty who were under supervision, direction and control of the hotel management.

Of itself, a finding of breach of duty of care according to the background requirements of the general law of negligence is an insufficient basis to sustain a finding of negligence unless the pre-condition requirements of s 5B of the CL Act are also fulfilled: Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd [2009] NSWCA 263 per Campbell JA at [173].

In my view, at the time the plaintiff was ejected from the hotel, a reasonable person in the position of the responsible hotel staff would have known, or ought to be taken to have known, that there was a foreseeable risk of the plaintiff suffering harm from an assault by the first defendant after he had been required to leave the hotel premises, if basic and prudent measures of the kind already outlined were not taken. I find this was especially so when it was apparent that the first defendant's departure and route from the premises was in juxtaposition with that of the plaintiff : s 5B(1)(a) of the CL Act.

In my view, the risk of injury to the plaintiff from an assault by the first defendant was not insignificant where previous threats of the kind already identified had been made by the first defendant and where it was necessary for Mr Miller, on behalf of the hotel, to pull the parties apart and to ensure they stayed apart : s 5B(1)(b) of the CL Act.

In my view, a reasonable person in the position of the hotel staff would have taken the precautions already identified. I am satisfied that this is so having regard to the evidence of Mr Miller, Mr Archibald and Mr Jennings : s 5B(1)(c) of the CL Act.

In my view, the failure to take precautions of the kind identified was required because if they were not taken, there was a high probability that the plaintiff would be targeted by the first defendant for an aggressive encounter, including for the fulfilment of threats the first defendant had earlier expressed towards him when offering him physical violence: s 5B(2)(a) of the CL Act. In such circumstances, where precautions were not taken, I consider that the likely result would have been serious physical injury and lasting impairment, of the kind experienced by the plaintiff : s 5B(2)(b) of the CL Act.

In my view, when focus is applied to the particular risk under consideration in this case, namely the risk of the plaintiff being assaulted by the first defendant after they had both left the hotel premises where the identified precautions had not been taken by the hotel against this risk occurring, the likely burden on the hotel in taking precautions of the kind identified in order to avoid the particular risk of harm was negligible : Waverley Council v Ferreira [2005] NSWCA 418 per Ipp JA at [45].

In this regard, the hotel already had staff in place and on duty and who had been vigilantly engaged in observing the activities of the plaintiff and the first defendant, as was evident from the reason for the ejection of the plaintiff from the hotel immediately after he had entered the bar area from which he had been banned. In my view, on the required prospective analysis required by Vairy, it would have been a relatively simple, expedient, non-burdensome and non-costly extension of that vigilance to use the existing resources of the hotel to continue to observe the first defendant for a short time until the plaintiff had reached a safe distance from the hotel, not just over a distance of 10 metres before such observations ceased, or before the cessation of any resolve to discourage the first defendant from approaching the plaintiff : s 5B(2)(c) of the CL Act.

In the context of use of commercially licensed premises to sell alcohol to patrons, there was no social utility in creating or permitting a situation of danger from assault to arise where that danger was reasonably foreseeable, and avoidable with very little effort on the part of those responsible for running the hotel. The taking of the precautions identified would not have significantly interfered with the social utility of the hotel being available for the reasonable use of patrons because as a general class, patrons had a relevant interest in safety requirements being observed, and this would have overshadowed any perceived or argued burden or inconvenience in the circumstances : s 5B(2)(d) of the CL Act.

Accordingly, in my view, the failure of those responsible for running the hotel to take the precautions and preventive actions identified, and which I have characterised as constituting breaches of the duty of care owed, should also be properly characterised as negligence on the part of the second and third defendants.

The onus is on the plaintiff to establish causation. In the proceedings against the first defendant, conventional historical common law principles apply : March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 50. In the case against the second and third defendants the plaintiff must satisfy the requirements of s 5D of the CL Act : Adeels Palace.

I have found that the first defendant intended to assault the plaintiff. He had expressed an intention hours before he in fact assaulted the plaintiff and fulfilled the intention when he came upon the plaintiff in the street. In my view, in these circumstances there is no room for doubt that the plaintiff has, in his case against the first defendant, established causation according to conventional common law notions of commonsense : March.

In the case against the second and third defendants, proof of causation is a potentially more onerous task for the plaintiff to fulfil.

In my view, in the case against those defendants, a conventional common law analysis along commonsense lines also reveals that were it not for the fact that very soon after the plaintiff was ejected from the hotel, and without hindrance from hotel staff, the first defendant left the hotel to walk in the direction in which the plaintiff was walking without any concern on the part of hotel staff as to what might happen to the plaintiff at the hands of the first defendant if they were to meet in the street. In my view, but for those events, the assault upon the plaintiff on the night in question would have been a very unlikely occurrence : Adeels Palace.

If the first defendant had been distracted or delayed in his intended departure from the hotel by hotel staff using the kind of "verbal judo" to which Mr Miller referred, I consider that it is more probable than not that the two would not meet on the street and the assault would not have occurred because the first defendant would not have been able to carry out his intention of doing harm to the plaintiff.

In these circumstances, in his claim against the second and third defendants, I consider that the plaintiff has satisfied the causation requirements of s 5D of the CL Act.

I find this to be so because the negligent act of allowing the first defendant to leave the hotel without hindrance or delay, so that he could see and pursue the plaintiff, and to then proceed to assault him was a necessary precondition of harm suffered by the plaintiff, thus establishing factual causation : s 5D(1)(a) of the CL Act.

Furthermore, it is only appropriate that the scope of the liability of the second and third defendants be extended to the harm so caused to the plaintiff because Mr Miller not only recognised the need to pull apart and separate the pair whilst they remained in the hotel in order to avoid a fight, but he also recognised, as he ought to have, that there was a need to protect ejected persons who were at risk of injury within a significantly broadly defined perimeter outside the hotel premises : s 5D(1)(b) of the CL Act.

This is not a case where it is necessary to consider exceptional circumstances as this is not a case where there is negligence that cannot be established as a necessary condition for the occurrence of the harm : s 5D(2) of the CL Act.

In this case, where there was an acknowledged duty of care, as indicated by the evidence of Mr Miller and supported by the evidence of Mr Jennings, in connection with commercially run licensed premises where alcohol was served, there is no sound reason for not imposing responsibility for the harm suffered by the plaintiff, onto the second and third defendants : s 5D(4) of the CL Act

Accordingly, in my view, the plaintiff has established legal causation in respect of the harm that he has suffered, both according to common law principles, and according to the requirements of s 5D of the CL Act.

Issue 5 - Alleged contributory negligence on the part of the plaintiff

In relation to the claim against the first defendant for damages for assault, no defence of contributory negligence can arise.

The second and third defendants have pleaded a defence of contributory negligence to the claim made by the plaintiff. That defence invokes ss 49 - 50 of the CLA Act with regard to the plaintiff's level of intoxication.

In addition, the second and third defendants allege common law contributory negligence with regard to the plaintiff's intoxication, his contended failure to leave the premises, his failure to go directly home, his contended failure to draw attention to the fact that he may have been at risk of injury from the first defendant, provoking the first defendant, failing to take care for his own safety, and approaching the first defendant when it was not safe to do so.

I shall deal with these arguments in the paragraphs that follow first with regard to the common law based arguments, and then with regard to the statutory provisions.

Whilst it may have been careless of the plaintiff to make derogatory remarks concerning the first defendant whilst in the hotel belonging to the second defendant, and whilst it was foreseeable that the first defendant would take offence to such remarks, in my view, there are fundamental difficulties in establishing a causal nexus between such conduct as provocation and the ultimate injuries suffered by the plaintiff in the context of argued contributory negligence.

First, the remarks in question were initially not directed to the first defendant but were apparently made when he was not present. The evidence concerning the making of those remarks comes from the plaintiff, and was to the effect that he was prepared to run down the reputation of the first defendant to anyone at the hotel who was prepared to listen. The evidence does not go so far as to state precisely what was said and to whom, or whether this was accurately reported to the first defendant so as to give rise to and to maintain a relevant nexus from the perspective of a contributory negligence analysis.

Secondly, even if the plaintiff had insulted the first defendant, as was claimed by the first defendant, the necessary expectation was that the first defendant would observe the necessary restraint required by law, and not set upon and assault the plaintiff, either within the hotel premises or outside those premises. Accordingly, I consider that the necessary causal link between the plaintiff's behaviour and the subsequent assault, from a contributory negligence perspective as raised by the second and third defendants, has not been established.

Thirdly, assuming, as I have found to be the case, that it was foreseeable that the plaintiff would be the target of an assault by the first defendant, according to the second defendant's own standards that informed the duty of care that it owed, as was explained by Mr Miller, Mr Nelson and Mr Jennings, recognising that the plaintiff was affected by alcohol which had been served to him by the second and third defendants, those defendants were duty-bound to ensure that when the plaintiff was ejected from the premises, he would not be exposed to avoidable risk of harm from persons within the premises who, whilst also affected by alcohol, had expressed hostility toward the plaintiff and who had behaved threateningly toward him.

Fourthly, at the time the plaintiff was ejected from the premises he clearly intended to leave the vicinity of the hotel where there was the potential for harm that could have been occasioned to him at the hands of the first defendant. This is apparent from his conduct in walking away from the hotel and down the street some distance, a distance of less than 300 metres and is still within the observation range of the hotel security guard, Mr Nelson. In my view, by removing himself from the immediate vicinity of the hotel, any alleged contributory behaviour on the part of the plaintiff which could be argued to have exposed him to a risk of injury from assault, has been rendered remote from a causation perspective.

In my view, from a common law perspective, the fact that the plaintiff was intoxicated is a remote and irrelevant factor with regard to the contributory negligence claim raised by the second and third defendants. This is so because he was on licensed premises with the permission of those defendants and in circumstances where, if those defendants considered him to be at risk of injury, they could have taken steps to protect him, given such intoxication, including by ensuring that he safely leave the premises. Further, I consider that the first defendant was determined to assault the plaintiff no matter what, therefore, the extent of the plaintiff's intoxication is an irrelevant consideration. I therefore reject this argument as a basis for finding alleged contributory negligence on its part.

With regard to the contributory negligence argument that the plaintiff failed to leave the premises and that he failed to draw the attention of the second and third defendants to the fact that he may have been at risk of injury from the first defendant, it is sufficient to say that the plaintiff had been on the premises lawfully, he had refused to fight with the first defendant when the first defendant sought to fight him, and he was entitled to expect that the first defendant would behave lawfully, and not unlawfully assault him. I therefore also reject this argument as a basis for finding alleged contributory negligence.

With regard to the contributory negligence argument that he had failed to go directly to his home after being ejected from the premises, I do not consider this to be a tenable ground for contributory negligence. The plaintiff was entitled to use a public street as a thoroughfare for the purpose of seeking out a meal for himself. The street was not inherently dangerous and he was entitled to expect that other citizens, including the first defendant, would behave lawfully when also using the street. He was not obliged to go home and hide or seclude himself from the threats made by the first defendant once he had left the premises and was proceeding to remove himself from the immediate vicinity of the premises. I do not regard this argument to be a proper ground upon which to suggest that the plaintiff had failed to take reasonable care for his own safety, and I reject the argument as a basis for finding alleged contributory negligence.

With regard to the contributory negligence argument that the plaintiff had approached the first defendant when it was not safe to do so, I do not consider that the argument has been made out. When the plaintiff became aware that he was being called upon to stop it was reasonable for him to turn to see who was calling out to him. It was also reasonable for him to stop and walk towards those coming towards him to ascertain what business they had with him. It was pointless for him to try and run and hide in circumstances where it must have been apparent to him that he was outnumbered with his perception that four men were coming towards him, and would obviously have been out-run if he had attempted to do so. I therefore do not regard this argument to be an appropriate basis for finding contributory negligence.

I now turn to consider the arguments raised by the second and third defendants based on ss 49-50 of the CL Act.

It is not open to those defendants to argue that the plaintiff was not owed a duty of care merely because he was intoxicated : s 49(1)(b) of the CL Act.

There is no doubt that in the circumstances of this case, the plaintiff was intoxicated. He conceded this to be the case, including to the extent that he was incapable of safely preparing a meal for himself because of such intoxication. It is also clear that he was intoxicated at the time he was assaulted. This is evidenced by the fact that he had refused to fight the first defendant because he considered himself to be intoxicated. Accordingly, these circumstances have to be taken into account in a liability analysis : s 50(1) of the CL Act.

The second and third defendants have argued that the plaintiff is not entitled to an award of damages in this case because of the operations s 50(2) of the CL Act which provides that a court is not to award damages in a case such as this, unless satisfied that the injury was likely to have occurred even if the person concerned was not intoxicated. In my view, even if the plaintiff had been sober he still would have been targeted for assault by the first defendant because of the deep-seated ill-will and hostility that the first defendant harboured towards him. In my view, in these circumstances, the second and third defendants should not succeed on a contributory negligence argument based on that subsection.

In the alternative, the second and third defendants relied on a statutory presumption of contributory negligence of at least 25 per cent by reason of the plaintiff's intoxication : s 50(3) and s 50(4) of the CL Act.

In my view, on the facts of this case, the second and third defendants should not succeed on that argument because I am not satisfied that the plaintiff's intoxication in any way contributed to the cause of his injury : s 50(3) of the CL Act. I consider this to be so because at the time he was assaulted, the plaintiff was lawfully walking upon a public thoroughfare which of itself was not an inherently dangerous activity. The position might have been otherwise if for example, he had been using potentially dangerous machinery or had been undertaking an inherently complex and potentially dangerous mechanical task that required sober and focused skilled care and attention. This was not the case. Here he was just walking. He did not suffer any injury as a result of just walking. He was injured because he was assaulted. I consider this would have occurred irrespective of whether or not he was intoxicated.

In the circumstances under consideration, the plaintiff was simply walking way from the hotel from which he had been ejected, and toward a restaurant in order to obtain a meal. He was walking in company with another person and no aspect of this activity was likely to place him in a position of danger but for the appearance of the first defendant on the scene where the first defendant was exhibiting obvious mal-intention toward the plaintiff, calling out to him from a distance for him to stop. In my view, in these circumstances, it cannot be reasonably argued that the plaintiff was obliged to flee from the scene at that time. I consider that it would have been pointless for him to do so, as his pursuer, the first defendant, would most probably have caught up with him wherever he might have gone when taking flight from the scene in any event, even if the plaintiff had not been intoxicated.

I therefore conclude that the claimed defences of contributory negligence have not been made out by the second and third defendants as claimed.

In the circumstances where I have made liability findings against each of the defendants, it is necessary to arrive at a just and equitable apportionment between the defendants in respect of the harm caused to the plaintiff.

I have found that the first defendant had unlawfully assaulted the plaintiff. This was egregious conduct on his part. This occurred because the first defendant was not distracted, discouraged or restrained from leaving the premises to enable the plaintiff a reasonable opportunity to move away from the vicinity and away from the risk of coming to harm at the hands of the first defendant.

The second and third defendants have submitted that in the event there is a finding of liability against them there should be a very high degree of apportionment against the first defendant. Following upon my findings that each of the defendants are liable to the plaintiff, it becomes necessary to apportion responsibility or blame for the plaintiff's injury between the defendants according to the established principles of justice and equity. This requires that the respective responsibilities of the defendants be rationally weighed for the purposes of apportionment.

In weighing the degree of responsibility of the first defendant in this case, I consider that the first defendant, whilst affected by alcohol which fuelled his feelings of ill-will for the plaintiff, assaulted and beat the plaintiff in circumstances where he had, over a number of hours, harbored the desire to fight the plaintiff as he had expressed earlier, this being his chosen method for sorting out differences. In my view this requires that the first defendant bear a significant proportion of the responsibility for the plaintiff's injuries.

In considering the degree of responsibility of the second and third defendants in this case, it is relevant to note that the first defendant's attitude of aggression and confrontation towards the plaintiff had come to the notice of the second defendant, in the form of its employed bar manager Mr Miller. This occurred in circumstances where Mr Miller felt it necessary to pull the parties apart during their confrontation. This was also in circumstances where the first defendant had made it clear that he wanted to fight the plaintiff and the plaintiff had made it clear he did not want to do so. At this time the second defendant, through Mr Miller, knew that the first defendant had a background in security work, having worked with him in the past. I consider that this circumstance meant that it was highly likely that Mr Miller knew the first defendant had the physical capacity to inflict injury to the plaintiff and this was in the context of a hotel setting where alcohol was available, with its well-known disinhibiting effects.

Added to these circumstances was the fact that the plaintiff and the first defendant had been permitted to remain in the hotel for a number of hours where alcohol was available to be served to them and where it must have been known to the hotel management, as explained by Mr Jennings, that this would have increased the risk of aggressive behaviour by persons bearing ill-will to others which increased the risk and the propensity for threats of physical violence to be carried out by the aggressor.

In these circumstances, the second defendant, through Mr Miller, exercised a choice, namely to permit the parties to remain in the hotel. This necessarily meant that given the right but nevertheless foreseeable circumstances, aggression and physical violence could break out between the parties. The alternative was for the hotel staff to arrange for an orderly ejection of one or both of the parties at an earlier point in time, or failing that, to ensure that when the plaintiff was ejected, this occurred in circumstances where he was observed to leave and clear the observable vicinity, or the 300 metre perimeter as was suggested by Mr Miller, so as to remove him from the risk of harm.

In my view, it is more probable than not, that but for the failure of the second defendant's employees, and those persons under its control, for example Mr Nelson, to act in this way, the plaintiff would not have been assaulted by the first defendant : Adeels Palace at [55].

In these circumstances I consider that the second and third defendants should bear a significantly greater share of the responsibility for the plaintiff's injuries than the first defendant perpetrator. This is because Mr Miller and the staff under his direction could have made a material causative difference to the outcome, namely an avoidance of injury to the plaintiff on this occasion

In view of the foregoing analysis, I have therefore concluded that the responsibility of the second and third defendants for the plaintiff's injury should be justly and equitably shared in the ratio 30 per cent on the part of the first defendant and 70 per cent on the part of the second and third defendants.

The first contemporaneous record of injury suffered by the plaintiff in the events in question consists of the ambulance records filed within the Coffs Harbour Hospital clinical notes. These records only refer to a fracture of the lower third of the lower left leg. The hospital records themselves are sparse concerning the description of the plaintiff's injuries. The triage record within the hospital records refers to the plaintiff having been kicked in the left leg and then beaten. That note also describes the plaintiff's left leg as being deformed.

Subsequent x-rays were reported as revealing a long spiral fracture to the mid shaft of the left tibia with a distal fragment being displaced laterally and posteriorly. A spiral fracture of the proximal neck of the left fibula with widening of the fracture site with some lateral displacement was also reported.

In his oral evidence, the plaintiff stated that in the assault, the first defendant also kicked him in the testicles, which caused bruising. The hospital records make no mention of testicular injuries however other evidence tends to corroborate the plaintiff's evidence that he had such an injury. That other evidence was a subsequent testicular ultrasound arranged by the plaintiff's general practitioner which later confirmed the presence of a left epididymal cyst. It seems to me to be reasonable to infer from this that the plaintiff suffered a testicular injury as claimed.

In his oral evidence the plaintiff described how, whilst he lay on the ground, the first defendant pinned him down and then repeatedly punched him about the face which caused bruising, swelling, a fracture of the nose and a ruptured right ear-drum.

Although the Coffs Harbour Hospital notes made no mention of the plaintiff's facial injuries, I observe that those notes have been only sparsely annotated with notes of findings on examination by medical officers. Accordingly, I conclude that in this case the absence of mention of facial injuries in the hospital notes does not provide a basis for refuting the plaintiff's evidence that such injuries occurred. I also come to this view because the police attended on the plaintiff in hospital on the night he was admitted and took a series of photographs which comprised Exhibit "G". In my view those photographs clearly show that the plaintiff was swollen about the face, eyes, lips, nose and left cheek and had been bleeding from his facial wounds. The plaintiff gave evidence to this effect in his evidence in reply when these photographs were shown to him. He also described cuts he had received to the inside of his mouth when he was beaten about the face in the incident.

I therefore find that in the assault the plaintiff suffered spiral fractures to his left tibia and fibula, a fractured nose, a ruptured eardrum, multiple bruises, swelling and cuts to his face, and to the inside of his mouth, and bruising and swelling to his testicles. Based on the treatment records and reports I also find that he suffered considerable pain, discomfort and distress associated with these injuries. I also find that as a result of these injuries the plaintiff subsequently developed secondary wound breakdown to the repair site of his injured left leg, multi-resistant staphylococcus aureus infection [MRSA] and chronic osteomyelitis. I find that the cumulative effect of all of these matters caused the plaintiff considerable stress and distress.

The plaintiff received his initial treatment at Coffs Harbour hospital where he was first admitted as an inpatient for 5 days between 17 and 22 September 2004. The plaintiff's left leg fractures were treated by Dr I Chan by means of a closed reduction under general anaesthetic at which time a plaster cast was applied. He then remained under the care of Dr PA Hefner, an orthopaedic surgeon. He was initially nursed with his leg in an elevated position and he was then discharged home using crutches for mobility.

The plaintiff remained living in Coffs Harbour under the medical care of Dr Hefner until 19 December 2005, when Dr Hefner apparently retired from practise. Whilst the plaintiff remained under the care of Dr Hefner, he had multiple further hospital admissions to Coffs Harbour Hospital for a series of complications arising from the operative repair of his leg fractures.

The plaintiff's second hospital admission was on 1 October 2004. This was for 4 days when he underwent an open reduction and internal fixation of the left tibial fracture.

The third admission was on 3 December 2004 for one day for treatment of a wound infection. When the plaster cast was removed wound dehiscence was evident and the tissues were seen to slough away to reveal the underlying fixation plate and screws. On that occasion the fixation plate was removed and a further fixation plate and screw device was applied and antibiotic treatment was given.

The fourth admission was on 15 April 2005 for 2 days for surgical wound debridement and removal of the fixation hardware because of infection. A purulent discharging wound infection had developed and the plaintiff required continued daily dressing changes for about four months. Two weeks after the fixation device was removed the plaintiff's left leg fractured again spontaneously at the previous fracture site as he attempted to stand on it. This second fracture occurred because the initial fracture had not fully healed.

The fifth admission was on 17 June 2005 for 5 days for the insertion of a locked inter-medullary nail fixation device that had been inserted into the lower left tibia from the knee above the fracture. Intra-operative swabs taken at that time, later tested positive for MRSA. Subsequently this surgical wound also became infected. The plaintiff then developed resistant osteomyelitis for which he was treated with prolonged antibiotic therapy.

On 31 March 2005 the plaintiff consulted Ms Cheryl McCombie, a consultant psychologist. She saw the plaintiff at the request of the Victims of Crime Counselling Service. Ms McCombie noted the plaintiff was anxious and depressed. She reported the plaintiff to be suffering from physical problems comprising chronic leg pain, a loss of appetite, weight loss, nausea, a stomach ulcer, exacerbation of psoriasis, a lump in a testicle, difficulty breathing through the broken nose, a lack of muscle tone due to a lack of exercise and leg scarring.

Ms McCombie reported some emotional problems suffered by the plaintiff. These problems included feelings of panic, pre-occupying thoughts about security guards, negative and intrusive thoughts about losing his leg as a consequence of the assault and the possibility of further assault. She reported he was easily irritated, frustrated and angry. She reported that he avoided social situations and licensed premises and he feared further attack upon him and that he told her he felt hyper-vigilant and felt vulnerable to the threat of further attack such that he had an inability to relax. He reported that he felt depressed on most days and had angry outbursts and feelings of powerlessness, weepiness, loss of energy, disturbed sleep, loss of confidence and self-esteem. She noted that he had circular ruminations about the condition of his leg and he had feelings of worthlessness. She noted that these matters affected the plaintiff's memory, concentration, comprehension and self-organisational issues. She thought that the plaintiff exhibited a limited level of insight into his emotional problems. She noted severe depression, hyper-vigilance, resentment and severe emotional distress. She identified the plaintiff's psychological prognosis as being extremely guarded.

The manifestations of the plaintiff's emotional problems that followed the assault included depression, apathy, de-motivation for self care, being withdrawn, relationship strains, difficulty with concentration and short term memory. Ms McCombie flagged that the plaintiff will have great difficulty undertaking new training including low level tertiary training. Ms McCombie identified that the plaintiff had an extremely poor potential to gain or maintain employment. She noted the plaintiff had an adjustment disorder which was a response to his sense of powerlessness.

On 29 April 2005 the plaintiff's treating general practitioner Dr Ruthnam arranged for him to have a double contrast barium swallow test and barium meal test. These tests revealed the plaintiff to have a moderately sized sliding hiatus hernia with reflux and features of reflux oesophagitis. The tests also revealed the presence of gastritis and a possible sub-acute or chronic duodenal ulcer. Although there may be some association between these conditions and the plaintiff's emotional trauma as recounted by Ms McCombie, in the absence of medical evidence providing a basis for making such a connection I do not draw an inference of connection: Strinic v Singh [2009] NSWCA 15; Sretenovic v Reed [2009] 280. However, notwithstanding the absence of medical evidence on the point I make the commonsense observation that such emotional trauma would possibly have had an exacerbating impact on these underlying conditions: Adelaide Stevedoring Co. Ltd v Forst [1940] HCA 45;(1940) 64 CLR 538. That said, this issue would have no measurable impact on non-economic damages.

On 2 June 2005 the plaintiff had a testicular ultrasound test which showed he had an epididymal cyst on his left testicle measuring 12mm by 10mm by 9mm. I consider that finding to be corroborative of the plaintiff's evidence that he was kicked in the testicles during the assault.

In December 2005, after the retirement of Dr Hefner, the plaintiff moved to Sydney. He made this move for a number of reasons. He felt "hassled" by being in Coffs Harbour and he needed to come to Sydney for treatment. He also wanted to be closer to the support that was available from his family in Sydney and to seek treatment. He therefore moved to live with his sister and her family in Frenchs Forest. By this time the plaintiff's left leg had become seriously infected and he became seriously and systemically ill with the bacterial MRSA infection.

On 12 April 2006 the plaintiff consulted Dr CK Raju, a general practitioner who practised near his sister's home in Frenchs Forest. Dr Raju saw the plaintiff on a total of 9 occasions between 12 April 2006 and 23 January 2009. Dr Raju noted the history of depression of apparent post-traumatic origin. He also noted wasting of the muscles of the left leg, scar tissue, adherent skin to bone and an inability to walk freely. He also noted weakness of the left leg with an inability to kneel, squat or carry heavy objects. Dr Raju was of the opinion that the plaintiff had a very poor prognosis for his permanently damaged leg, needing support for daily routine work and needing psychological support.

On 19 April 2006 the plaintiff was seen by Dr Richard Walker, an orthopaedic surgeon, at Liverpool Hospital for the assessment and treatment of his infected left leg. Dr Walker reviewed a number of treatment options for the plaintiff. He identified the possibility of a below knee amputation of the left leg as a possible complication due to the nature and extent of the entrenched MRSA infection if his recommended treatment were to fail. The plaintiff was clearly concerned about this possibility and chose not to see Dr Walker again, probably because he was in a vulnerable emotional state. I consider that he may have over-reacted to the discussion of possible amputation in the context of the adverse risks of surgery.

The plaintiff continued to apply dressings to his discharging wound by himself. At one stage the plaintiff was unable to wear shoes because pus was discharging from his wound and running down his leg. He described the purulent smell of his pus-filled leg as being disgusting to himself and to others. He described having to throw out his sheets because they "stunk". He could not sleep with his leg in his bed because of the pus. He had to strap it to an adjacent chair each night whilst it was affected in this way. He was embarrassed at getting into other people's cars due to the smell of his infected leg.

Dr Raju referred the plaintiff to Royal North Shore Hospital [RNSH] for what was his seventh hospital admission. He was admitted for emergency care under Dr Andrew Wines, a consultant orthopaedic surgeon. The plaintiff remained at RNSH for 17 days between 13 November and 1 December 2006. In that period Dr Wines carried out a thorough surgical debridement of the plaintiff's infected post-surgical wounds and he carried out removal of the inter-medullary tibial nail to treat the infection. The evidence described how this procedure involved the tibial nail track being reamed out, washed out and drained with intravenous antibiotics being infused to treat what had become a serious systemic infection. The treatment was co-ordinated with the infectious diseases team at the hospital who treated the resistant infection with intravenous infusion of Vancomycin and Ticoplanin. When the plaintiff was discharged from hospital his mobility was aided by a CAM walking boot. The wound was treated with prolonged antibiotics and daily dressing changes supervised by a visiting nurse. The plaintiff saw Dr Wines again for follow-up as a hospital outpatient on 13 December 2006, 23 January 2007 and 13 February 2007.

Following his discharge from RNSH the plaintiff found that he had to periodically remove sequestered fragments of dead bone that occasionally came through the surface of his skin due to the underlying infection. He remained restricted with mobility in that he had to use crutches for seven months between December 2006 and July 2007.

The plaintiff described this period of his treatment and the complications from his treatment, as being a very difficult time for him.

In addition to the reports from treating doctors the plaintiff was assessed by a number of medico-legal examiners.

On 30 October 2007, at the request of his solicitors, the plaintiff was examined by Dr David Millons, a consultant orthopaedic surgeon. Dr Millons noted that the plaintiff walked with a limp and favoured his left leg. He also noted the plaintiff's nose to be slightly deviated to the right from an untreated fracture. He observed a scar to the left knee where the inter-medullary nail had been inserted and noted tenderness in that area. He observed a 1.5cm difference in the girth of the left calf compared to the right calf. He described a scar of 15cm by 2cm which was densely adherent to the underlying tibia in the region of the left shin. He noted that the scar was numb. He also noted that the plaintiff was tender in the region of the left medial malleolus and had some slight restriction in the range of left foot movements.

Dr Millons' opinion was that he thought the plaintiff's leg fractures had been treated appropriately but had unfortunately incurred chronic infection, which had in turn led to osteomyelitis. He described the plaintiff's tethered left leg scarring as unsightly. Having seen the scar I agree with that observation. Dr Millons was of the opinion that there was no doubt that at the time of his examination there were further sequestra of bone underlying the scar and at that time there was some scabbed tissue indicating an underlying inflammatory or infective process was evident.

Dr Millons noted the plaintiff did not like the appearance of his scar but also noted the danger of setting off an infection again if there was a surgical attempt at freeing up the tethered skin from the underlying tibia. Dr Millons noted the lower left limb was wasted, that there was a loss of mobility and agility and that the plaintiff's complaints were unembellished, consistent with his condition, and not overstated. He thought that given the plaintiff's changed circumstances, it was not surprising that he was somewhat depressed.

Dr Millons also gave oral evidence on the sixth day of the trial. He confirmed the opinions set out in his reports. In those opinions he limited the plaintiff's capacity for work to light, part-time semi-sedentary work. It is noteworthy that the plaintiff has no background or training in such work and the potential for him to be so trained is uncertain. I consider this to be a relevant consideration for evaluating whether or not the plaintiff has a residual earning capacity.

On 30 October 2007, at the request of his solicitors, the plaintiff was medically examined by Dr Robert Gertler, a consultant psychiatrist. Dr Gertler noted that the plaintiff's physical complaints comprised pain in the left leg, primarily in the areas of the ankle and the knee. He recorded the history of the plaintiff walking with a limp and experiencing difficulty walking on uneven ground. He also noted the plaintiff's complaints of poor sleep, difficulty falling asleep, variable appetite and having lost weight. The plaintiff described his emotional symptoms as being socially withdrawn, irritable, no longer seeking the company of others, having few interests, having generally low motivation, ruminating about his losses, having difficulties with his concentration and having feelings of depression. He also noted a history of the plaintiff drinking to excess after he had moved to Sydney.

On examination Dr Gertler observed the plaintiff to walk with a limp. He also observed slight irritability and depressed mood. Dr Gertler commented that the plaintiff's presentation was consistent with his history. Dr Gertler was of the opinion that the plaintiff was significantly psychologically impaired with an adjustment disorder for which the prognosis was guarded and requiring psychiatric treatment which had the potential to provide some improvement.

Dr Clive Sun - consultant rehabilitation specialist

On 28 July 2008 the plaintiff was medically examined at the request of his solicitors by Dr Clive Sun, a consultant rehabilitation specialist. Dr Sun noted that the plaintiff's complaints were of ongoing residual left knee and ankle pain, with impaired sensation in the shin and left foot cramps. He also observed the left ankle had restricted movements and difficulty walking on uneven ground. Dr Sun also noted that the plaintiff complained of disturbed sleep, poor standing tolerance, difficulty kneeling, restrictions in driving a manual car, sporting restrictions and depression. He stated that he found no evidence of abnormal illness behaviour.

Dr Sun described a 20cm by 3cm vertical linear scar with discolouration. He also noted an antalgic limp, restricted knee movements and restriction of ankle movements in various directions.

Dr Sun made a number of treatment recommendations. He was of the opinion that the plaintiff required treatment from a plastic surgeon for skin grafting when the infection was eradicated. He also made the recommendation for referral to a rehabilitation specialist for management of physical and vocational rehabilitation. He also identified the possible benefits to the plaintiff if he had access to hydrotherapy and gym equipment, presumably to attempt to build up the left lower leg. Dr Sun's opinion on work restrictions affecting the plaintiff will be analysed separately when dealing with the assessment of damages for loss of earning capacity.

Assessments at the request of the second and third defendant's solicitor

Professor Ian Harris - consultant orthopaedic surgeon

On 4 March 2008, the plaintiff was medically examined on behalf of the second and third defendants, by Professor Ian Harris, a consultant orthopaedic surgeon. Professor Harris noted the plaintiff reported some mild neck symptoms which were not associated with the assault and which were not associated with any disability at the time of the examination. Professor Harris noted the plaintiff was able to walk unaided without a limp. That finding was at variance with the evidence of the plaintiff and the observations of Dr Gertler, Dr Millons and Dr Sun. Professor Harris noted the fracture had healed in good alignment and the absence of restriction of movement in the adjacent joints. He also noted that there was poor skin cover overlying the fracture site. He noted the presence of a disability with regard to vigorous activity using the left leg as well as an inability to run or to walk long distances.

Comment by Professor Harris on Dr Sun's recommendations

Although Professor Harris did not see the plaintiff again after his examination of him on 4 March 2008, he was nevertheless asked to comment on the report of Dr Sun following Dr Sun's examination of the plaintiff on 28 July 2008, some 4 months after Professor Harris had assessed the plaintiff. Professor Harris took issue with some of Dr Sun's suggestions concerning work restrictions. He also commented on the plaintiff's claim for domestic assistance. I will analyse those comments when assessing that head of damage.

On 1 April 2008, the plaintiff was examined at the request of the second and third defendants by Dr Bruce Westmore, a consultant psychiatrist. Dr Westmore considered that the plaintiff had an adjustment disorder with symptoms of depression and possible anxiety. His diagnosis on the various DSM IV axes were stated to be tentative because of the limited single opportunity for review.

Dr Westmore recorded that the plaintiff told him he felt "cranky all the time". Dr Westmore went on to record a history that the plaintiff no longer enjoyed watching television, he was easily bored, he no longer trusted people, he was no longer happy and had feelings of helplessness regarding his employment future. Dr Westmore noted alcohol abuse had developed, which was superimposed on a pre-injury binge pattern of alcohol consumption. Presumably this referred to the plaintiff's practice of drinking heavily on weekends.

It is relevant to observe that whatever the position was with the plaintiff's pre-injury pattern of alcohol consumption, he nevertheless held down steady employment and ran a household. The plaintiff's evidence of his post-injury drinking has been to the extent of twice as much as it was beforehand and this was not having a good impact upon him. He now drinks through the week as well as on weekends, which is quite a different pattern compared to his pre-injury situation.

Dr Westmore accepted that the plaintiff had an adjustment disorder with symptoms of depression and probably anxiety following the events of the assault. He also accepted that the plaintiff has an adjustment disorder following the medical complications which arose following the left leg injury. Dr Westmore thought the psychiatric prognosis was guarded because of chronic physical problems that are likely to affect the plaintiff in the longer term. I consider this to be a matter of significance to an assessment of whether or not the plaintiff has a residual earning capacity.

The plaintiff stated that when he was examined by the various medical practitioners who had assessed him since his injury, he gave a truthful account of his disabilities. I accept as truthful the evidence he gave in that regard. The plaintiff also gave oral evidence concerning his residual disabilities. I also accept as truthful the evidence the plaintiff gave in that regard. In the ensuing paragraphs I set out my findings concerning the plaintiff's permanent residual disabilities.

From a physical and functional perspective, the plaintiff suffers from ongoing pain, stiffness and discomfort in his lower left leg and ankle for which he continues to wear skin adherent pain patches to cope with this pain. He suffers from restriction in the range of movement in his left ankle. His left ankle is tender and he experiences occasional cramping. He walks with a pronounced limp due to ankle stiffness and he favours his left leg when he walks. He has lost covering tissue thickness from his left shin and this has resulted in the overlying skin being tethered and left densely adherent to the anterior of the underlying lower tibia. This was evident with movement. His left calf has undergone some muscle wasting. He has a significantly reduced standing and walking tolerance because of the condition of the left leg. He has difficulty negotiating stairs and uneven ground. He has difficulty kneeling and squatting because of the aftermath of the injury to his left leg. He has crepitus in his left knee. He had a cyst on his left testicle and there is no evidence that this has resolved. He has problems taking painkilling medication orally because of past problems with a gastric ulcer. Dr Sun has identified the prospect that the plaintiff will continue to suffer left leg symptoms affecting his mobility, daily activities and work. The plaintiff's physical discomforts cause him to suffer from poor sleep.

Cosmetically, the plaintiff has a significantly disfiguring scar to his lower left leg which has resulted from the multiple attempts at surgical treatment and also as a result of recurrent MRSA and osteomyelitis infection, and the need to treat those infections surgically. This scarring is unsightly and the plaintiff has naturally said that he would prefer that it was not there. He has lesser scars to his left patella at the site of the insertion and removal of the inter-medullary nail that was also used to treat his tibial fracture. His untreated nasal fracture that occurred when he was beaten about the face in the assault, is deviated to the right.

Psychologically, the plaintiff is significantly and chronically depressed and has an adjustment disorder with anxiety. He is "bored and broke" and destitute. He leads a vacuous existence. His circumstances have led him to resort to abusing alcohol by drinking to excess. He requires psychiatric treatment and support to deal with these problems.

His left lower limb remains susceptible to further injury due to the altered architecture of the tissues covering the left shin and the abnormal tethering of the covering skin to the underlying bone. That underlying bone has become infected with the MRSA bacterium. He remains susceptible to further MRSA infection and chronic osteomyelitis. If such further infection eventuates it has the potential to cause him significant difficulty with healing which will in turn impact on his ability to work and may give rise to a need for additional care in its various forms. That risk is not remote and the plaintiff was very conscious of the risk. The problem could readily precipitate if his leg was bumped so as to break the skin or if he required any further surgical treatment to the affected area.

These matters that I have reviewed all have a significant and adverse effect on the plaintiff's ability to lead a normal life.

An assessment of the plaintiff's entitlement to damages first requires an assessment of the years that probably remain for the plaintiff. Having regard to the current prospective life tables, at age 49, this being the plaintiff's age at trial, in the absence of any medical or other evidence suggesting a decreased life span, I assess the plaintiff's life expectancy, which is by definition a statistical estimate or average, to be in a rounded down figure of a remaining 36 years : Golden Eagle International Trading Pty Ltd & Anor v Zhang & Anor : [2007] HCA 15; (2007) 229 CLR 498.

The assessment of damages is complicated by the need for dual assessments to be made under two different and applicable schemes for assessment. The claim against the first defendant falls to be assessed pursuant to conventional common law principles, whereas the claims against the second and third defendants requires assessment pursuant to the requirements of the Civil Liability Act 2002. In the ensuing paragraphs my assessment of the heads of damage claimed will include assessments under these two different schemes where applicable.

The plaintiff submitted that in the claim against the first defendant, an appropriate common law award of general damages for pain, suffering and loss of amenity of life would be in the sum of $150,000. The plaintiff also submitted that in the claims against the second and third defendants an assessment of non-economic loss would be 35 per cent of a most extreme case as assessed in accordance with s 16(2) of the Civil Liability Act 2002. The first defendant made no submissions on general damages. The second and third defendants submitted that an appropriate assessment of damages for non-economic loss would be in the range of 28 per cent to 30 per cent.

In considering the submissions of the parties on the issues of general damages / non-economic loss, I have had regard to the detail of the plaintiff's injuries, the nature and detail of the treatment he has undergone and the effect that all of this has had upon him, together with the physical, cosmetic and psychological disabilities, matters which I have already reviewed in the preceding paragraphs concerning the plaintiff's residual disabilities. In the light of that review and in the light of my review of the medical evidence I have previously summarised, I conclude that the submissions advanced on behalf of the second and third defendants represent a significant under-assessment of the plaintiff's entitlement to an award for non-economic loss.

According to common law principles of assessment I assess general damages for pain, suffering and loss of amenity of life in the sum of $150,000.

Pursuant to s 16 of the Civil Liability Act 2002 I assess the plaintiff's damages for non-economic loss at 35 per cent of a most extreme case in the sum of $154,500.

On a common law assessment, but not otherwise, the plaintiff is entitled to interest on past general damages at 2 per cent on that portion of general damages which is apportioned to the past : MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 567. Of the award of $150,000 for general damages I assess half as being apportioned to the past, namely $75,000. The period between 17 September 2004 and 25 May 2009 is 4.68 years. Interest at 2 per cent on past general damages of $75,000 over 4.68 years amounts to $7,020. I assess the plaintiff's entitlement to interest on past general damages in the sum of $7,020.

The plaintiff makes a claim for past loss of earnings from the time of his injury until the present time. This claim is based on the plaintiff's own evidence and is supported by the 5 November 2007 opinion of Dr Millons who has stated: "… Mr Hadaway has been unable to return to any form of gainful employ since the accident on 17/09/04 because of the injuries sustained and the complications that ensued. He is still suffering from the effects of those complications."

There is no dispute that before his injury the plaintiff had enjoyed a long and stable skilled work history in the building industry. Since 2001, and until the time of his injury the plaintiff remained in the employ of AR & MEC Whalan Pty Ltd as a foreman leading hand carpenter in the construction industry in Coffs Harbour. His pre-injury earnings from that employment were $757 per week net.

The 6 March 2008 report provided by Professor Harris and tendered on behalf of the defendants does not assert that the plaintiff had attained a fitness to return to work at the time that report was prepared. There is no evidence which contradicts the earlier quoted opinion of Dr Millons.

I accept the plaintiff's evidence that his injuries have prevented him from resuming his pre-injury employment or any employment until the present time. Given the nature of his left leg injury, and the complicated and incomplete course of recovery from that injury, I do not think it could be fairly said that the plaintiff has unreasonably failed to mitigate his loss. In these circumstances I find that he should be compensated for his loss of earnings from the time of his injury until the trial.

The calculation of the plaintiff's claim for damages for past loss of earnings proceeds in two parts. The first part involves a claim for loss of income over the 199 weeks between 18 September 2004 and 30 June 2008 at the pre-injury rate of $757 per week net, namely $150,643. The second part involves a claim for loss of income over the 47 weeks between 1 July 2008 and 25 May 2009 at the higher comparable earnings rate of $836 per week net, namely $39,292. The plaintiff concedes an offset in respect of a sum of $350 the plaintiff earned in an attempted work trial with Mr Bacich for seven days for which he was paid $50 per day. These calculations reveal the plaintiff's claim for past loss of earnings to be in the amount of $189,585.

The defendants submitted that the plaintiff's loss of earnings should be assessed over 104 weeks at the flat rate of $757 per week net. I consider this approach to be incorrect. First, it is arbitrarily short as to the period over which the loss should be assessed and secondly, the submitted rate is unreflective of increased comparable earnings. I accept the correctness of the plaintiff's submitted approach to the assessment of past loss of earnings. I therefore assess the plaintiff's damages for past loss of earnings in the sum of $189,585.

On a common law assessment, but not otherwise, the plaintiff is entitled to interest on past loss of earnings of $189,585, assessed at 5 per cent over 4.68 years which yields the sum of $44,362. I assess the plaintiff's entitlement to interest on damages for past loss of earnings in the sum of $44,362.

The plaintiff's claim for future loss of earning capacity is for the projection of a net loss of $600 per week net over a further 18 years of working life to age 67 years. So formulated, this claim assumes an allowance for an offset of $236 per week net to represent a conceded residual earning capacity. The basis for that precise concession is not apparent on the evidence but it is a concession that was made in final addresses.

In contrast to the plaintiff's submitted approach, the defendants submitted that the plaintiff should be allowed a buffer of between $70,000 to $80,000, to provide a cushion from the possible adverse impact of his injuries on his capacity to derive future income.

These disparate positions require analysis of the medical evidence in order to enable an assessment of damages for future loss of earning capacity.

When the plaintiff saw Dr Hefner on 14 December 2005, Dr Hefner was of the opinion that because of the degree of ankle stiffness the plaintiff would be unable to ever again return to heavy work. That opinion has subsequently and more recently been borne out by the plaintiff's own experience of his unsuccessful attempt to carry out work that was otherwise within his skills set. This occurred when he attempted a trial of work with Mr Bacich in October 2008.

When Dr Millons saw the plaintiff on 30 October 2007 he addressed the plaintiff's future employment capacity on the following terms: "He would be unfit to return to any heavy manual labouring work. Hypothetically, at this stage he would be fit for some light, part-time, semi-sedentary work in an office or store environment, perhaps working 4 hours a day, whereby he could sit, stand or move around as needs demand.

He appears to have limited literacy and numeracy skills. That may make such a diversion into employment difficult. It would probably be appropriate that once Mr Hadaway has been reviewed by Dr Wines and had the blood tests that he undergo a formal vocational and functional assessment to see if there might be some suitable avenue of employment along which he might be directed for which he might be retrained."

It is necessary to record that any hypothetical fitness for work, of the kind outlined by Dr Millons, involves speculation. I do not read the comment on work fitness made by Dr Millons to indicate that the plaintiff had, as at October 2007, a practical and exercisable earning capacity from which he could derive income.

On 6 March 2008, Professor Harris commented on the plaintiff's earning capacity based on his examination of the plaintiff on 4 March 2008. In response to questions concerning the plaintiff's work prognosis and the claim for incapacity for employment Professor Harris wrote: "… Mr Hadaway's prognosis is good. The tibia fracture has healed in good position and his infection has resolved. His condition is not expected to deteriorate in the future. He is not at risk of developing osteoarthritis in the knee or ankle as a result of this injury. He has the potential to return to his pre-injury level of activity and there is no residual deformity or loss of muscle, tendon nerve or vascular supply to his left leg. He is at risk of recurrence of his left leg infection. …"

After expressing his disagreement with the notion that the plaintiff was totally incapacitated for future employment Professor Harris went on to state: "… Mr Hadaway's fracture of the left tibia has healed satisfactorily, and there is currently no residual impairment on physical examination. He does have some weakness in the leg and pain on vigorous activities, but I expect this to improve with time.

I consider Mr Hadaway currently fit for full time employment, but he would not be fit for heavy manual work until his strength and endurance have improved. This will require further activity on his behalf."

Following his examination of the plaintiff on 28 July 2008 Dr Sun expressed his opinion on the plaintiff's future work restrictions in the following terms: "As a result of this injury and infective complication, he is not fit to return to manual labouring work. He may take on supervisory or administrative positions within the construction industry or be retrained into more sedentary work. He should have access to a rehabilitation provider to organise his retraining and redeployment. He is fit for selected duties with no lifting over 12 kg, no forceful pushing or pulling, no repetitive bending twisting, squatting or kneeling. He should limit his standing, walking, use of stairs and ladders. Provided suitable duties are available he may be able to manage 30 hours per week."

On 30 September 2008, at the request of the solicitor for the defendants and without the further opportunity of re-examining the plaintiff, Professor Harris commented on the opinion of Dr Sun in the following terms: "Dr Sun states that Mr Hadaway is fit for selected duties 'with no lifting over 12 kg, no forceful pushing or pulling, no repetitive bending, twisting, squatting or kneeling.' I can see no physical basis for providing these restrictions. His tibial fracture has united and he should be able to lift heavy weights without risk of re-fracture.

Dr Sun states that he will require domestic assistance. These requirements would depend on Mr Hadaway's stated abilities to perform these specific domestic duties. I would not specifically restrict him from performing these duties, but his symptoms may preclude him from performing heavy activities."

There is a divergence of opinion on the plaintiff's work fitness when the opinions of Professor Harris are compared with the other opinions to which I have referred. In my view, there are some significant difficulties associated with the opinions from Professor Harris. For the reasons that follow, this leads me to prefer the opinions of Dr Millons and Dr Sun to the views of Professor Harris.

First, I consider Professor Harris' opinion to be of limited probative value because whilst it purports to comment on the appropriateness of Dr Sun's recommendations, those comments are necessarily flawed because they are founded upon Professor Harris' examination on 4 March 2008 whereas Dr Sun's views were based on an examination of the plaintiff that he had carried out some 4 months after Professor Harris last saw the plaintiff, namely on 28 July 2008.

Secondly, there appears to be an internal inconsistency within Professor Harris' stated views on the plaintiff's capacity concerning heavy activities. On the one hand Professor Harris opines that the plaintiff should be able to lift heavy weights and on the other hand he concedes that symptoms may preclude the plaintiff from performing heavy activities.

In my view there is an inherent tension between these two views. The practical significance of that tension is that during his trial of work with Mr Bacich, whose evidence I accept the plaintiff was having difficulty with wheelbarrow work, and with getting around the building site. I also accept Mr Bacich's evidence concerning his observations of the plaintiff's need for frequent breaks, his limping, his complaints about his leg and the like. These problems, which are still current and permanent, significantly impair the plaintiff's earning capacity. In my view the plaintiff's experience of the symptoms that he described, and which prevented him from continuing to carry out that work, both engages and harnesses the second part of the opinion of Professor Harris as support for his case concerning impairment in his earning capacity due to an inability to perform sustained heavy activities to an extent that employers would consider to be gainful employment.

Thirdly, in my view Professor Harris has unduly restricted the focus of his opinion on the issue of work fitness to the question of a relationship between the lifting of weights in excess of 12kgs and the risk of re-fracture. Whilst that is a relevant consideration it is not the only consideration. In my view Professor Harris has not considered the most material consideration which has been stated by Dr Millons, namely that with heavy lifting there is the attendant risk of bumping the injured leg which could then set off further complications and MRSA infection, especially since the tibia has only a thin and tethered covering of skin that remains vulnerable to further injury, and the risk of re-infection is an ever present one the plaintiff now carries with him.

Fourthly, I consider that Professor Harris is incorrect in his description of the plaintiff's affected leg. He has failed to record the observation made by Dr Millons concerning the tethering of adherent skin to the underlying bone with associated loss of tissue. That observation is at odds with the view stated by Professor Harris that the plaintiff had no residual deformity or loss of muscle, tendon, nerve or vascular supply to the left leg. On plain observation there was absent tissue. Further, the opinion of Professor Harris pays no regard to the plaintiff's complaint of numbness in the region of his scarred leg.

Fifthly, I consider that the tasks that were proscribed by Dr Sun, namely restricted lifting, no forceful pushing or pulling, no repetitive bending, twisting, squatting or kneeling, are all commonplace tasks that are reasonably expected of persons engaged in various forms of manual employment. These tasks all require body movements that include the pivoting of a person's centre of gravity which necessarily creates a risk of loss of balance and falling. In the plaintiff's case, this carries with it an enhanced risk of injury to the left leg by a bump or breaking of the skin as was explained by Dr Millons in his oral evidence.

In my view, both individually and in combination, these are matters that lead me to reject the quoted opinion on work prognosis as expressed by Professor Harris in favour of the opinion of Dr Sun with which Professor Harris has expressed his disagreement. I prefer and accept as reasonable the opinion of Dr Sun concerning the restrictions he has placed upon the plaintiff's future work tasks.

Dr Sun's views also coincide with the views of the treating general practitioner, Dr Raju. The plaintiff will not be fit for full employment until his strength and endurance have improved. That is a contingent view and in my assessment, on the evidence adduced, there is very little prospect of such improvement occurring to an extent that would enable the plaintiff to acquire a state of fitness to resume remunerative employment.

That said, the plaintiff does not present his claim on the basis of total future unemployability, even though the evidence would suggest that this is largely so by reason of the medical restrictions placed on any future work activities and because of his limited education.

The plaintiff has physical limitations including reduced standing and walking tolerance. This raises uncertainties and real concerns over whether, even after the intervention of vocational rehabilitation, he would be likely to be employable again. Notwithstanding these matters of concern and uncertainty, the plaintiff has conceded, very fairly to the defendants in my view, a residual earning capacity of $236 per week net.

The defendants have submitted that "work hardening" exercises would be likely to be pursued through rehabilitation and would enable the plaintiff to be able to carry out a greater range of work than that which he presently believes to be the case. That submission is based on the opinion of Professor Harris to the effect that the plaintiff will not be fit for full employment until his strength and endurance have improved. That is a contingent and speculative view. In my assessment, on the preponderance of the medical evidence to which I have referred, there is no real prospect of such improvement occurring.

Following my analysis, I do not accept either of the defendants' submissions because, without evidence, they involve undue speculation as to the likely nature and outcome of the proposed vocational rehabilitation, they unrealistically assume a significant residual earning capacity which is against the weight of the evidence, and because the submissions are contrary to the views of Dr Sun, which I accept.

In assessing the plaintiff's claim for future loss of earning capacity I accept the plaintiff's evidence of his physical impairments and limitations. I also accept the evidence of Mr Bacich's observations of the plaintiff's limited ability to perform work tasks. I have also accepted the medical opinions to the same effect.

I therefore find that the plaintiff continues to suffer a significant impairment to his earning capacity. I find that impairment will continue until the retirement age of 67 years and beyond. I accept that the appropriate comparable yardstick by which his potential earnings should be measured is in the sum of $836 per week net. I accept that in accordance with current community expectations, the claim for loss of future earning capacity should be assessed over the ensuing years until the plaintiff reaches the age of 67 years.

I accept, as was submitted that I should, the plaintiff's very reasonable concession of a residual earning capacity in the sum of $236 per week net, even though the evidence for this was not strongly suggestive of such a residual capacity. This analysis reveals a continuing and indefinite weekly loss of earning capacity of $600 per week net.

I have given consideration to the appropriate discount for possible adverse vicissitudes. In my view the conventional discount of 15 per cent seems appropriate even though there is the risk that in this case the vicissitudes could operate adversely to the defendants and justify a lesser discount : Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485.

According to common law principles the projection of $600 per week net at 3 per cent over 18 years (x 728.4) less a 15 per cent discount for possible adverse vicissitudes yields the amount of $371,484. Pursuant to common law principles I assess the plaintiff's damages for future loss of earning capacity in the sum of $371,484.

According to the requirements of the Civil Liability Act 2002, the projection of $600 per week net at 5 per cent over 18 years (x 625) less a 15 per cent discount for possible adverse vicissitudes yields the amount of $318,750. Pursuant to the requirements of the Civil Liability Act 2002 I assess the plaintiff's damages for future loss of earning capacity in the sum of $318,750.

I consider these sums to be reasonable especially since the evidence supports an assessment at $836 per week which yields the respective amounts of $517,601 and $444,125 after discounting for vicissitudes.

The value of past loss of employer funded superannuation contributions can be identified by employing a rule of thumb calculation by applying a factor of 11 per cent to the amount assessed for past loss of earnings to reflect the value of past superannuation losses. Having the assessed value of the plaintiff's claim for past net loss of earnings in the amount of $189,585, and applying a factor of 11 per cent to represent the value of superannuation contributions, I assess the value of the plaintiff's past employer funded superannuation losses to be in the sum of $20,854.

Consistent with my assessment of the value of lost past employer funded superannuation benefits, I find the plaintiff has lost the value of future employer funded superannuation benefits. Given that I have assessed the plaintiff's future loss of earning capacity at common law in the sum of $371,484, applying the same method of calculation employed to assess the loss of past superannuation, namely a factor of 11 per cent, on a common law basis, I assess the value of the plaintiff's future employer funded superannuation losses to be in the sum of $40,863.

Using the same assessment process but under the scheme of the Civil Liability Act 2002 I assess the value of the plaintiff's future employer funded superannuation losses at 11 per cent on the projected loss of $318,750, namely the sum of $35,062.

The plaintiff makes no claim for the value of the past services he has undoubtedly received from family and friends in respect of domestic and personal assistance between 17 September 2004 and the commencement of the trial.

The fact that he has received such assistance is apparent from his own evidence and the evidence of his daughter, his sister and Mr Berg. It may well be that the claim would not have met the 6 hours per week / 6 months threshold requirements of s 15(3) of the Civil Liability Act 2002 to permit an assessment of damages. However, that circumstance would not preclude an estimation of the value of such services on a common law assessment. In any event the plaintiff has decided not to make a claim for the value of such past gratuitous services that were provided to him and I will not speculate on the reasons as to why this is so.

The plaintiff makes a future claim for 6 hours per week as a lifetime average for future domestic assistance with housework because of his restrictions with mobility, agility and prolonged standing. This claim is disputed by the defendants however there is no dispute that any such claim for future domestic services should be costed at the agreed rate of $25 per hour. A review of the medical evidence is therefore required concerning this item of claim which, at the agreed hourly rate, amounts to $150 per week.

In his 28 July 2008 report Dr Sun has recommended that because of the plaintiff's impaired mobility, it is reasonable for the plaintiff to be provided with access to 6 hours per week of assistance. In his 5 November 2007 report Dr Millons has expressed the view that the plaintiff will probably need assistance of the order of 2 hours per week to help him cope with the various tasks that he may not be able to do around the house or yard. His view was that the plaintiff should avoid ladder work or walking over uneven terrain and he should probably avoid mowing lawns and the like. I do not regard Dr Millons' views on the hours required to be determinative. I prefer Dr Sun's estimate because he is a rehabilitation specialist and the assessment of the plaintiff's assistance needs is more in line with his specialty than would be the case with Dr Millons who is an orthopaedic surgeon.

The defendants dispute the claim for domestic assistance and argue that no allowance should be made in any assessment of the plaintiff's damages. In doing so they invoke the 30 September 2008 opinion of Professor Harris in which he stated that the plaintiff's symptoms may preclude him from performing domestic duties and the plaintiff's requirements for such assistance would depend on the plaintiff's stated abilities or inabilities in this regard.

I have found that the plaintiff has difficulties with pain, mobility and agility. He does not do much in the way of domestic activities because of his physical limitations. These problems have been the subject of medical opinions which support the plaintiff's own self-assessment.

I accept the plaintiff's claim concerning his need for domestic assistance. I prefer and accept the views of Dr Sun and Dr Millons as to the plaintiff's need for domestic assistance rather than the views of Professor Harris. In this regard I prefer Dr Sun's estimate of the level of the assistance the plaintiff will require. I also note that Dr Raju is of the opinion that the plaintiff will need support for matters of daily routine work. Given the disabilities I have found as affecting the plaintiff, I consider the plaintiff will require assistance with the heavier forms of housework including moving furniture associated with vacuuming, cleaning, washing, shopping and any household tasks requiring mobility and agility. I consider that an allowance of 6 hours per week or $150 per week in respect of these activities represents a reasonable lifetime average assessment that is fair to both the plaintiff and to the defendants.

The projection of $150 per week at 3 per cent over 36 years (x 1156.2) yields the sum of $173,430. Pursuant to common law principles I assess the plaintiff's damages for future domestic or attendant care services in the sum of $173,430.

The projection of $150 per week at 5 per cent over 36 years (x 884.4) yields the sum of $132,660. Pursuant to the requirements of the scheme under the Civil Liability Act 2002, I assess the plaintiff's damages for future domestic or attendant care services in the sum of $132,660.

The plaintiff makes a claim for the provision of a lifetime average of 2 hours per week for the cost of gardening and home handyman services including, lawn mowing and household maintenance such as painting and repairs that he would otherwise have carried out himself, given his many and varied skills in the building industry.

The defendants dispute this component of the plaintiff's claim and argue that no allowance should be made in this regard. There is no dispute that if the cost of such assistance is to be awarded to the plaintiff the applicable rate should be at $25 per hour.

The 5 November 2007 report of Dr Millons supports the proposition that the plaintiff requires such assistance around the house and in the yard. Dr Millons is of the opinion that the plaintiff should avoid ladder work or walking over uneven terrain, this includes mowing lawns and the like. This would seem to also preclude painting and repairs involving ladders, including for example, changing light globes. These are commonplace home maintenance activities that someone with the plaintiff's industrial skills would be expected to be able to carry out himself without assistance. I find that the plaintiff is precluded from performing those tasks, in line with medical evidence to that effect. Dr Sun supports the provision of 2 hours per week of such assistance on the basis of the plaintiff's impaired mobility.

As with the claim for domestic assistance and for the same reasons I prefer and accept the views of Dr Millons and Dr Sun and the evidence of the plaintiff to the opinion of Professor Harris as to the need for such assistance.

In assessing damages for this head of claim it is relevant to consider that the plaintiff has in the past lived in a house with a lawn and garden and he has maintained these by his own efforts. I consider that it is probable that in the very near future, following the receipt of damages from this case, the plaintiff will again find himself able to live in his own premises where he will incur a need for such assistance. In my view it cannot be fairly said that if the plaintiff had not been injured he would have incurred such expenditure in any event.

I accept as reasonable Dr Sun's estimate for the provision of 2 hours per week of gardening and home handyman services which I assess will involve a cost of $50 per week.

The projection of $50 per week at 3 per cent over 36 years (x 1156.2) yields the sum of $57,810. Pursuant to common law principles of assessment I assess the plaintiff's damages for future domestic or attendant care services in the sum of $57,810.

The projection of $50 per week at 5 per cent over 36 years (x 884.40) yields the sum of $44,220. Pursuant to the assessment requirements of the scheme under the Civil Liability Act 2002, I assess the plaintiff's damages for future domestic or attendant care services in the sum of $44,220

The plaintiff makes a claim for the cost of future treatment that he will probably need in respect of a number of treatment modalities. The elements of this aspect of his claim comprise consultations with a general practitioner, consultations with an orthopaedic surgeon, treatment by a psychiatrist or a psychologist, the cost of patch treatment for pain, pathology tests, antibiotics, future wound debridement surgery, future plastic surgery, rehabilitation, physiotherapy, hydrotherapy and gymnasium access for building up of muscle strength.

Apart from conceding an allowance to provide for the cost of psychiatric treatment, the defendants dispute the plaintiff's entitlements for the treatment claimed. It is therefore necessary to analyse the evidence concerning the plaintiff's need for future treatment, in the various forms described in the evidence.

The plaintiff claims the cost of a lifetime average of three visits per year to a general practitioner for unspecified treatment. The claim is for these consultations to be costed at the Level B rate of $62 per visit rather than the Level C rate of $31 per visit.

In my view the need for such consultations is justified on a number of bases. These include the vulnerability of the plaintiff's left leg to further injury by contact, scar breakdown and further infection. Therefore, the prospect of further treatment being required is ever present. The plaintiff also continues to suffer from the psychological consequences of the assault upon him. In my view, individually and in combination, these matters will require periodic monitoring by a general practitioner for primary care and the consideration of tests and further referrals to other practitioners as well as the possible need to prescribe antibiotic treatment. In my view, these issues involve more complexity than a simple attendance for a prescription, and therefore justify costing at the rate of a Level B consultation.

The evidence does not permit a precise analysis of the likely incidence of this need but nevertheless I consider an allowance should be made for this need. Doing the best I can to be fair to the parties I allow two consultations per annum at the Level C rate of $31 per visit, and one consultation per annum at the Level B rate of $62 per visit. This is the equivalent of $124 per annum or $2.38 per week.

On common law principles of assessment the projection of $2.38 per week at 3 per cent over 36 years (x 1156.2) yields $2,751.

Pursuant to the assessment framework of the Civil Liability Act 2002 the projection of $2.38 per week at 5 per cent over 36 years (x 884.4) yields $2,104.

The plaintiff claims the cost of the lifetime average of an annual visit to an orthopaedic surgeon to monitor and review the condition of his left leg. The plaintiff claims for this service at a cost of $142 per annum whereas the defendants argue that this service should be costed at the rate of $41 per consultation as an ongoing referral.

The difficulty with the submissions made by the defendants is that under the Medicare system it is commonly known that such referrals are only valid for a period of 12 months which in my view influences the rate at which fees would be rendered by the orthopaedic surgeon whom the plaintiff would need to consult. I consider that the annual rate of $142 is a reasonable method for costing this need. I therefore allow the cost of one consultation per annum with a specialist orthopaedic surgeon at the annual cost of $142 which is the equivalent of $2.73 per week.

On common law principles of assessment the projection of $2.73 per week at 3 per cent over 36 years (x 1156.2) yields $3,156.

Pursuant to the framework of the Civil Liability Act 2002 the projection of $2.73 per week at 5 per cent over 36 years (x 884.4) yields $2,144.

The plaintiff makes a claim for the future cost of obtaining treatment for his adjustment disorder, depression and anxiety. These conditions involve psychiatric diagnosis and management. In this regard Dr Gertler's recommendation is for the plaintiff to have treatment sessions with a treating psychiatrist every 2 to 3 weeks over a period of 6 months at a cost of $245 per session with allowance for psychotropic medications involving an expenditure of $50 per month over a period of 6 to 9 months.

Dr Westmore's recommendation was for the plaintiff to receive treatment in the form of a further 6 to 12 consultations with a psychologist over a period of 12 months which would involve an expense of $175 per consultation without the need for psychotropic medication.

The defendants submit that the plaintiff should be allowed a sum of $2,100 for 12 psychiatric sessions at $175 per session. In my view this submission is problematic in that it mis-states the evidence of the cost of psychiatric sessions at $175 per session which is the rate for psychologists whereas the evidence discloses that the appropriate rate for psychiatric treatment is $245 per session.

The plaintiff has had psychological counselling treatment in the past from Ms McCombie. I infer from her report that this counselling was of the kind afforded to victims of crime under the statutory scheme by which such victims are compensated. In my view the psychological issues which have beset and continue to beset the plaintiff are more far-reaching than the initial post-incident sequelae to which counselling treatment by a psychologist was provided. Given that the plaintiff has been diagnosed as having a psychiatric disorder, I consider it appropriate that the plaintiff receive treatment from a psychiatrist who would be able to offer psychotropic medication as part of the treatment if required.

Accordingly, of these conflicting treatment recommendations I prefer those of Dr Gertler to those of Dr Westmore. I have come to this view because I consider it likely the plaintiff's need for such treatment will require the more extended form of treatment because of the chronic and severe nature of his psychological symptoms. I also consider that this treatment should be provided under the medical supervision of a psychiatrist with the ready facility for prescribing medication as is envisaged by Dr Gertler rather than just the provision of counselling under the supervision of a psychologist. The upper range of the costs associated with Dr Gertler's recommendations is about $3,700. I allow a rounded down proportion of this sum in the amount of $3,000. As this envisaged treatment is of a relatively short term nature and does not require projection using the discount tables, there is no difference between a common law assessment and a Civil Liability Act assessment of this need.

The plaintiff makes a claim for the future cost of skin adherent pain patches that he wears to deal with his ongoing leg pain. These patches cost him $8 per month for a packet of four patches. This is the equivalent of $96 per annum or $1.84 per week.

The plaintiff's reason for using these patches to treat his pain symptoms is that he has had gastro-intestinal problems which were affected by other forms of medication. This included an ulcer and this form of pain relief does not cause such problems. In these circumstances I consider the pain relief treatment and the cost of such treatment by use of patches to be reasonable. I therefore allow the claim for pain relief patches at the lifetime average cost of $1.84 per week.

On common law principles of assessment the projection of $1.84 per week at 3 per cent over 36 years (x 1156.2) yields $2,127.

Pursuant to the assessment framework of the Civil Liability Act 2002 the projection of $1.84 per week at 5 per cent over 36 years (x 884.4) yields $1,627.

The plaintiff makes a claim for the lifetime average cost of pathology tests of $100 per annum. The defendants do not concede the need for such an allowance. The rationale advanced for this claim is that the plaintiff is vulnerable to further injury and MRSA infection. If this occurred it would require close medical monitoring including identification of pathogens in order to select the appropriate antibiotic therapy as was evident from the hospital admissions that have occurred to date. I therefore consider the plaintiff's claim for this item to be reasonable.

Whilst there is no evidence of the actual cost of such pathology services I consider that the amount of $100 per annum as a lifetime average is a reasonable buffer allowance that is fair to both the plaintiff and to the defendants : State of NSW v Moss [2000] NSWCA 133. This is the equivalent of $1.92 per week and I allow this sum.

On common law principles of assessment the projection of $1.92 per week at 3 per cent over 36 years (x 1156.2) yields $2,219.

Pursuant to the assessment framework of the Civil Liability Act 2002 the projection of $1.92 per week at 5 per cent over 36 years (x 884.4) yields $1,698.

The plaintiff makes a claim for $100 per annum or $1.92 per week for the probable cost of antibiotic over his remaining lifetime. The defendants do not concede the need for such an allowance. The defendants rely on the 30 September 2008 report of Professor Harris which states the plaintiff does not need antibiotics as the infection has resolved.

In my view, the comment made by Professor Harris does not address the plaintiff's vulnerability to further injury and MRSA infection. The claim for antibiotics is consistent with the medical opinion that the plaintiff remains vulnerable to further contact injury, skin breakdown and therefore MRSA infection. Accordingly, I prefer the opinion of Dr Sun concerning the need for future antibiotic treatment. In my view, in such circumstances it is appropriate that an allowance in that amount be made to reflect this fact. Whilst there is no clear medical insight into the likely frequency of this need occurring I consider that the approach taken by the plaintiff's submissions in this regard represents a reasonable lifetime average to reflect this real risk to the plaintiff which should in my view be reflected in appropriate allowance in damages.

On common law principles of assessment the projection of $1.92 per week at 3 per cent over 36 years (x 1156.2) yields $2,219.

Pursuant to the framework of the Civil Liability Act 2002 the projection of $1.92 per week at 5 per cent over 36 years (x 884.4) yields $1,698.

The report of Dr Millons dated 5 November 2007 referred to possible need for localised debridement surgery given the plaintiff's history of fragments of bone on occasions discharging through the skin of his damaged leg. In his report dated 13 November 2007 Dr Millons suggests that the all-up cost of such surgery would be of the order of $1,500. The rationale for this allowance is the ever-present risk of skin breakdown. The oral evidence of Dr Millons confirmed the dormant nature of MRSA and the ever-present potential for recrudescence of infection. Dr Millons has estimated the cost of a single episode of surgery.

Given the unpredictable nature of the timing of occurrence of possible recrudescence of infection giving rise to a need for debridement, I do not see a rational and non-artificial basis for distinguishing the cost on the common law basis of assessment as distinct from an assessment under the Civil Liability Act 2002. I therefore allow the suggested amount of $1,500 for wound debridement over the plaintiff's remaining lifetime.

The report of Dr Sun has identified the need for the plaintiff to have plastic surgery for skin grafting of the tethered skin defect on his left lower leg. Having read the medical descriptions of the plaintiff's scarring and having observed the scarred leg at the request of the parties, I accept the reasonableness of Dr Sun's recommendation in this regard. I therefore consider that I should make an allowance for such skin grafting surgery in assessing the plaintiff's damages for future treatment. I make this allowance notwithstanding that the plaintiff is not keen to have further surgery. The reality is that he remains vulnerable to further injury and ultimately he may have little choice in the matter. I therefore consider that I should make an allowance for such surgery.

In the absence of evidence of the likely total cost of such surgery I am nevertheless required to make an assessment of the reasonableness of this need : State of NSW v Moss [2000] NSWCA 133. I infer from the nature of the recommended surgery that it will involve hospital accommodation fees for a number of days, fees for a plastic surgeon, possibly an assistant to the surgeon, an anaesthetist as well as some other ancillary costs including dressings and after care. I consider that this treatment should be costed in the short term without being deferred because the need could arise at any time if, for example, the plaintiff bumped his leg inadvertently. Doing the best I can to be fair to both the plaintiff and to the defendants, I make an allowance of $5,000 for such skin grafting plastic surgery. Given that my assessment of this item assumes short term expenditure for skin grafting surgery I consider that there is no significant difference between an assessment of this cost to be made pursuant to the common law principles of assessment and an assessment made under the Civil Liability Act 2002.

The report of Dr Sun has identified the need for the plaintiff to be referred to a rehabilitation specialist for the management of the need for physical rehabilitation and vocational rehabilitation. The defendants do not concede this claim. The basis of the contest over the claim for vocational rehabilitation is the 30 September 2008 opinion of Professor Harris who argues that recourse to such assistance may be considered necessary if the plaintiff has difficulty finding employment. In my view Professor Harris' opinion is based on the wrong test. Professor Harris's view is based on an experiential test of need whereas here I must consider the test of reasonable need due to injury. Accordingly, I prefer the opinion of Dr Sun to that of Professor Harris in connection with the claim for vocational rehabilitation.

I consider Dr Sun's vocational rehabilitation recommendation to be reasonable in order to assist the plaintiff to prepare himself for re-entry into the workforce to enable him to maximally identify and exercise any residual earning capacity he may develop in the future.

I consider it reasonable to include an allowance for probable rehabilitation costs in assessing the plaintiff's future treatment costs especially since my assessment of the plaintiff's damages for future loss of earning capacity makes a significant allowance for a conceded residual earning capacity.

Whilst there is no evidence that provides the detail or the cost of the likely rehabilitation services, I infer from the terms of Dr Sun's recommendation that it involves both rehabilitation and vocational disciplines, and this will involve more than just a few consultations within each such discipline.

There is no evidence of the likely cost for this claimed service. Doing the best I can to be fair to both the plaintiff and to the defendants, and on the same approach taken with regard to other uncosted treatment items, I make an allowance of $500 for the cost of future short term rehabilitation and vocational management over the ensuing year, noting that the assessment of damages for future impairment of earning capacity assumes an immediate offset for a residual earning capacity although that residual capacity has not yet been fully assessed or established.

Given that my assessment assumes short term expenditure for rehabilitation and vocational referral, I consider that there is no significant difference between an assessment made pursuant to common law assessment principles and an assessment under the Civil Liability Act 2002.

The report of Dr Sun has identified the potential benefit to the plaintiff for him to have 12 months of access to hydrotherapy. The defendants do not concede this claim and rely upon the 30 September 2008 opinion of Professor Harris that disagrees with the recommendation for access to hydrotherapy and gymnasium equipment.

Professor Harris' view is based on his 4 March 2008 assessment at which time he did not detect that the plaintiff walked with a limp. Professor Harris based his disagreement with Dr Sun's recommendation on his own assessment that the plaintiff's function was quite good.

In contrast, when Dr Sun examined the plaintiff on 28 July 2008 he noted the complaints of left foot cramps, restricted left ankle movements, difficulty walking on uneven surfaces, poor standing tolerance, difficulty kneeling and of leisure activities being affected.

When Dr Millons examined the plaintiff on 30 October 2007 he noted the plaintiff walked with a limp and favoured his left leg due to ankle stiffness.

In any event, the last medical examination disclosed that the plaintiff still walked with a limp which was also the evidence at the trial. In my view, all of these matters are relevant to an assessment of the functioning of the plaintiff's left leg and in my view these complaints do not reasonably justify the description "quite good" as has been asserted. I therefore prefer the opinion of Dr Sun to that of Professor Harris with regard to the plaintiff's claimed need for access to hydrotherapy and access to a gymnasium.

I consider the suggestion made by Dr Sun for access to hydrotherapy to be reasonable. I also consider the recommendation to be appropriately directed at maximising the potential for developing, exercising and maintaining the plaintiff's residual earning capacity. I consider it is appropriate to make an allowance for this probable cost in the ensuing year to get the plaintiff started on a programme rather than projecting the cost over time. Given that my assessment assumes short term expenditure for hydrotherapy treatment I consider that there is no significant difference between an assessment made pursuant to common law assessment principles and an assessment under the Civil Liability Act 2002. Doing the best I can to be fair to both the plaintiff and to the defendants concerning this recommended expenditure, I make an allowance of $500 for the cost of access to hydrotherapy over the next 12 months.

The report of Dr Raju has identified the need for the plaintiff to have physiotherapy treatment. Dr Raju thought the plaintiff was in need of physiotherapy and rehabilitation to build up the strength of the lower left leg. Given that Dr Sun has recommended the plaintiff have hydrotherapy as well as access to a gymnasium, I do not consider it to be appropriate to make a separate allowance for physiotherapy treatment as it appears that these modalities will probably overlap with the recommendation for physiotherapy. In this regard I note that Dr Millons is of the view that the plaintiff does not require any formal physiotherapy and I accept that view.

The report of Dr Sun has identified the need for the plaintiff to have 12 months of access to gymnasium equipment. As with the hydrotherapy recommendation, I consider this suggestion to be reasonable and appropriate in the short term and to be directed at getting the plaintiff started on maximising his potential for developing and exercising any residual earning capacity he might develop. I have already outlined my reasons for this view in analysing the claim for access to hydrotherapy. Given that my assessment assumes short term expenditure for gymnasium access I consider that there is no significant difference between an assessment made pursuant to common law assessment principles and an assessment under the Civil Liability Act 2002. Doing the best I can to be fair to both the plaintiff and to the defendants concerning this recommended expenditure I make an allowance of $1,000 for the cost of access to gymnasium access over the next 2 years.

My assessment of the plaintiff's entitlement to damages for his reasonable future treatment needs is summarised in the following tabulation:

Treatment modality Assessment as against first defendant Assessment as against second and third defendants [common law] [Civil Liability Act 2002] (a) General practitioner $2,751 $2,104 (b) Orthopaedic surgeon $3,156 $2,144 (c) Psychiatric treatment $3,000 $3,000 (d) Pain relief patches $2,127 $1,627 (e) Pathology $2,219 $1,698 (f) Antibiotics $2,219 $1,698 (g) Wound debridement surgery $1,500 $1,500 (h) Skin grafting plastic surgery $5,000 $5,000 (i) Rehabilitation $500 $500 (j) Hydrotherapy $500 $500 (k) Physiotherapy $Nil $Nil (l) Gymnasium access $1,000 $1,000 Total $23,972 $22,773

On common law principles of assessment I assess the plaintiff's damages for his probable future treatment needs and associated costs in the sum of $23,972.

Pursuant to the assessment framework of the Civil Liability Act 2002 I assess the plaintiff's damages for his probable future treatment needs and associated costs in the sum of $22,773.

The parties have reached a mathematical agreement that the plaintiff has incurred out-of-pocket expenses amounting to $1,988 but the defendants do not concede that these expenses were reasonably incurred as a result of the plaintiff's injuries.

In order to resolve this issue I have considered the nature and extent of the plaintiff's injuries and the extensive nature of the treatment received as has been described by the plaintiff and as is recorded in the clinical notes concerning his multiple hospital admissions and the medical reports that have been tendered in evidence. I infer from this evidence that the total amount claimed for out-of-pocket expenses seems quite modest and was reasonably incurred by the plaintiff and was in fact due to the effects of his injuries that required extensive medical and allied treatment, including multiple hospital admissions. I therefore assess the plaintiff's damages for past out-of-pocket expenses in the sum of $1,988.

In assessing both exemplary and aggravated damages I am conscious of the fact that I have already assessed general compensatory damages. Exemplary and aggravated damages serve a different purpose and are therefore in a different conceptual category to general compensatory damages. I am also conscious of the need to avoid double counting in an assessment involving these elements of damages : State of NSW v Ibbett [2005] NSWCA 445 per Spigelman CJ at [83] to [89].

In my view the first defendant assaulted the plaintiff deliberately and in doing so did not act in self defence as he had claimed. In my view this should be construed as being conduct in conscious and contumelious disregard of the plaintiff's rights such as to require a punitive but non-compensatory award of damages : Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1.

In my view the first defendant assaulted and battered the plaintiff without just cause and I view such conduct as action taken in obvious contumelious disregard of the plaintiff's rights which calls for significant monetary censure.

In arriving at this assessment I have been conscious of the need to avoid overlapping of general compensatory damages and aggravated damages. Whilst minds may differ on the appropriate amounts for such awards, my assessment for exemplary damages is in the amount of $30,000 and I therefore assess the plaintiff's entitlement to exemplary damages in the sum of $30,000.

The purpose of aggravated damages is to compensate the plaintiff for the harm done to him by a wrongful act that was aggravated by the manner in which the harmful act was carried out : Uren v John Fairfax & Sons Pty Ltd [1996] HCA 40 per Windeyer J at [3]; (1966) 117 CLR 118.

In my view the first defendant assaulted and battered the plaintiff with the intention of causing him to suffer harm, and as such this conduct was an egregious and high-handed circumstance of indignity calling for an award of significant aggravated damages. In my view the first defendant's conduct in assaulting the plaintiff in the manner he did was conduct that was well apart from ordinary human fallibility and justifies a significant assessment of aggravated damages towards the higher end of the range : State of NSW v Riley [2003] NSWCA 208 per Sheller JA at [131].

As in the case of exemplary damages, in making this assessment I have also been conscious of the need to avoid an overlapping of general compensatory damages, exemplary damages and aggravated damages. Whilst minds may differ on the appropriate amounts for such awards, my assessment for aggravated damages is in the sum of $50,000. I therefore assess the plaintiff's entitlement to aggravated damages in the sum of $50,000.

My assessment of the plaintiff's damages is summarised as follows:

Head of damage Assessment as against first defendant Assessment as against second and third defendants [common law] [Civil Liability Act 2002] (a) Non economic loss $150,000 $154,500 (b) Interest - past general damages $7,020 $Nil (c) Past loss of earnings $189,585 $189,585 (d) Interest - past loss of earnings $44,362 $Nil (e) Future loss of earning capacity $371,484 $318,750 (f) Past loss of superannuation $20,854 $20,854 (g) Future loss of superannuation $40,863 $35,062 (h) Future domestic or attendant care $173,430 $132,660 (i) Home handyman assistance $57,810 $44,220 (j) Future treatment $23,972 $22,773 (k) Past out-of-pocket expenses $1,988 $1,988 (l) Exemplary damages $30,000 $Nil (m) Aggravated damages $50,000 $Nil Totals $1,161,368 $922,394

Jurisdiction in respect of quantum assessed in excess of $750,000

During his opening address, Mr Gross QC indicated that the plaintiff's claim for damages exceeded the jurisdictional limit of the court. However, in the absence of objection from the defendants in the preceding 3 months, the plaintiff's submission was that pursuant to s 51(4) of the District Court Act 1973, the court had jurisdiction to enter judgment up to an amount that was 50 per cent in excess of the $750,000, which was the jurisdictional limit that otherwise applied to this case.

During closing submissions there was no demur to the position that had been outlined on behalf of the plaintiff. I therefore infer from these circumstances that the first defendant has acceded to the extended jurisdictional submissions advanced on behalf of the plaintiff so that in the case of the claim against the first defendant, judgment may be entered in the plaintiff's favour in an amount in excess of $750,000.

I have found that the first defendant assaulted and battered the plaintiff as claimed by the plaintiff and as a consequence the plaintiff's entitlement to damages against the first defendant is assessed in the sum of $1,161,368. I have found that the second and third defendants were negligent and that such negligence was a material contributing cause of the plaintiff's injuries, thus giving rise to the plaintiff's entitlement to damages against these defendants. I have assessed the plaintiff's entitlement to damages against the second and third defendants in the sum of $922,394. I find that on the cross-claim the second and third defendants are entitled to contribution from the first defendant to the extent of 70 per cent, or $645,675.

Accordingly, I make the following orders: Regarding the respective claims (a) Verdict and judgment for the plaintiff against the first defendant in the sum of $1,161,368;

(b) Verdict and judgment for the plaintiff against the second defendant in the sum of $922,394;

(c) Verdict and judgment for the plaintiff against the third defendant in the sum of $922,394;

(d) Verdict and judgment for the cross-claimant against the cross-defendant in the sum of $645,675; Regarding costs (e) The defendants are to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;

(f) The cross-defendant is to pay the costs of the cross-claimants on the ordinary basis unless otherwise ordered; Regarding ancillary orders (g) The exhibits may be returned;

(h) Liberty to apply on 7 days notice if further orders are required.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.