Whether the plaintiff is entitled to damages, for general damages, aggravated damages or exemplary damages.
70I first consider general damages.
71I accept Dr Schutz's opinion that the incident was no more than a "self limited episode of a mild low back strain with no later untoward consequence" - expressed at p 7.5 of one of his reports - causing "transient minor lower back symptoms lasting three or four days with full recovery" (at p 8.4).
72The reasons I accept that opinion are these. The only alternative opinion is Dr Maniam. Dr Maniam does not explain the causal relationship between the incident and Julia Day's surgery and ongoing symptoms. One infers from his report that he thinks there is a causal relationship. The doctor refers to "sequence of the incident" and "a consequence of the injuries", but does not satisfactorily explain to my mind the medical link between the incident and events a year later. The "events a year later" is a reference to back surgery which Julia Day underwent on 8 August 2009. There was a good deal of documentary evidence about Ms Day's admission to Shellharbour Hospital about a year after the incident (on 2 August 2009), examinations of her back undertaken there and the surgery which occurred 6 days later at Wollongong Hospital, when she was operated on by Dr Khawaja. On the other hand Dr Schutz sets out a far more comprehensive history. Dr Schutz refers to a "volume of enclosures", which expression is explained in exhibit L and includes information which made its way into evidence.
73On Julia Day's evidence, she felt lower back pain for 3 days after the incident, but did not see a doctor. Julia Day, to her credit, frankly acknowledged that in those three days the pain was not always more severe than before the incident, but said - according to my note - that after the incident the lower back pain was generally more severe and more frequent.
74When Julia Day was admitted to Shellharbour Hospital on 2 August 2009 the history she gave was of "chronic back pain from an epidural and accident 8 years ago and says it flares up about once a year and lasts a few weeks. States it is worse this time, has been painful for 7 weeks and this morning she woke up and couldn't move at all due to the pain which she says was 10/10 then." There was also a history of "[k]nown LBP with occasional flare-ups" "since 2001 after epidural injection for labour". The "exacerbation has been since last few days while she was 8 weeks pregnant". The notes also said Ms Day "has a flare-up every year, states same bad for 7 weeks now". There was a short history taken by the Ambulance Service on 2 August 2009, but I cannot read it from the Exhibit. I assume that anything important would have been drawn to my attention by counsel.
75On 4 August 2009, Ms Day told the Ambulance Service that "they have a family history of back problems".
76However, there was, on 7 August 2009, a history given by Julia Day to a social worker at one of the hospitals about the incident at the hotel a year earlier.
77There was no report from the operating surgeon, Dr Khawaja, to assist me.
78Mr Chrysostomou said I can accept his client's evidence as to what she was like post the incident. I do not reject that evidence, but the question is, as Mr Chrysostomou correctly points out at [206.3.2] of his submissions, "whether it's more probable than not, the incident aggravated the plaintiff's pre-existing condition". Mr Chrysostomou goes on to say that, if that is so, "then it's more probable than not that was a cause (although not the sole cause) of plaintiff's admissions and surgery".
79I am not satisfied on the balance of probabilities that any aggravation of Julia Day's pre-existing condition contributed to her hospital admission. The reasons I am not satisfied are these:
(a)there was a history of long-standing back pain with regular flare-ups;
(b)there was an almost complete absence of complaint in the hospital records about the incident at the hotel;
(c)there is an absence of medical evidence demonstrating treatment or advice which Julia Day received between the incident and the hospital, even though she said that she had complained;
(d)there is no firm medical evidence of a link, on the other hand;
(e)there is firm medical evidence of a lack of a link.
I repeat I find Dr Schutz's opinion persuasive that Julia Day suffered "transient minor lower back symptoms lasting 3 or 4 days with full recovery".
80Mr Chrysostomou levelled some criticisms at Dr Schutz's report at [207] of his written submissions and those criticisms have some merit. Dr Schutz had overlooked the social worker's history, but there were plenty of other histories given by Julia Day which omitted reference to the incident, so that does not nullify the social worker's understanding of the history, although Dr Schutz's opinion may lose some of its force. I do not reach any conclusions about Dr Schutz not seeing the CCTV. It may have affected those opinions, but the opportunity was not taken to show him. I do not think there is any force in Mr Chrysostomou's submissions about Dr Schutz's opinions regarding 3 or 4 days full recovery being lessened by a complaint of back pains on the fourth day. The medical evidence is not helpful. Neither doctor was called to be cross-examined over issues the subject of criticism. There is no evidence from the operating surgeon, nor from any treating general practitioners between the incident and the operation. It may be, as Mr Chrysostomou acknowledges at [206.3.1] of his written submissions, that "the plaintiff's evidence generally is that her condition became worse after the incident" but a finding - in absence of cogent medical evidence - that the incident contributed to the admission to hospital would in my opinion require more contemporaneous medical evidence and a history of complaints. I am not satisfied on balance of a link.
81I would regard $2500 as an appropriate award of general damages for what Dr Schutz described as "transient minor lower back symptoms, lasting three or four days with full recovery."
82I turn now to the final questions of whether Julia Day would be entitled to aggravated damages or exemplary damages.
83Mr Reynolds argues that the claim for exemplary and aggravated damages is not maintainable because of s 21 of the Civil Liability Act. I have found that the Civil Liability Act does not apply. If it did apply, to deal with Mr Reynold's argument, the obvious problem with his argument is that the section refers to the act or omission of "negligence", and this is not a negligence case, but an intentional tort case.
84Mr Reynolds argues that that problem is solved by s 11A(3), which says that a "court cannot award damages, or interest on damages, contrary to this Part". Section 21 is in the same Part of the Act as s 11A. The obvious answer to that is that an award of exemplary or aggravated damages for assault would not be "contrary to this part" because the part prohibits such damages only in negligence cases.
85But, says Mr Reynolds, "contrary to this Part" essentially means "unless provided for in this Part", or "other than provided for in this Part".
86I do not accept that argument either. Not only is it inconsistent with the ordinary meaning of "contrary to the Part" but it purports to make the Part a self-contained code. The language of the provisions is mostly prohibitions. It does not read as a code of the available heads of damages.
87I must bear in mind the distinction between aggravated damages, which are compensatory, and exemplary damages, which are punitive. See State of New South Wales v Steven Charles Radford [2010] NSWCA 276 at [90 - 97]. This way of evicting Ms Day must have been particularly humiliating. It was a Friday night, and Ms Day was a regular customer. She was publicly humiliated in familiar surroundings. I would award aggravated damages of $2500.
88Exemplary damages are another matter. It would be regarded as a message being sent to the security company Checkmate Security International. This is not a way to deal with a patron. It must be deterred, especially since Mr James defended his own actions. I think that the third defendant should pay exemplary damages of $5000.