Kiperman v Highflame Pty Ltd

District Court of NSW|2007-05-17|Before: Mr P

Introduction

Mr Richard Kiperman was injured in the early hours of 18 May 2003 outside the De Ville nightclub in Double Bay. He alleged that in the course of seeking entry to the nightclub with his girlfriend, Ms Yanet Sternberg, one of the bouncers from the nightclub pushed him back, and then punched him in the face, causing him to hit his head and fall to the ground, unconscious. He brings this claim against the defendants alleging assault, or alternatively negligence.

The first defendant, Highflame Pty Limited was the operator of the nightclub. The second defendant, Mr Dixon, was the licensee. The third defendant was a security company hired to provide security services at the nightclub.

The issues for determination as to liability are: · Did a nightclub bouncer push, and then punch Mr Kiperman? · If so, were any of the defendants vicariously liable for that assault? · Was Mr Kiperman injured as a result of negligence by any defendant?

The De Ville nightclub 5. At the time of the assault on Mr Kiperman, the De Ville nightclub was a popular Sydney nightclub, situated in Cross Street, Double Bay (See Exhibit A). The De Ville was not a private club and the public was admitted, at the discretion of the proprietor.

No photographs or diagrams of the entrance area and door to the De Ville were tendered by any of the parties, and the only visual aid consists of a rough drawing by Ms Sternberg (Exhibit 1D3), which for me only served to add to the confused descriptions from the various witnesses. The layout needs, therefore, to be derived from the oral evidence, and inevitably the precise configuration and dimensions of the area are in some respects obscure.

It seems, however, that the entrance to the nightclub was in a portico bounded on one side by the front wall of the nightclub, in which the door was situated, and on the opposite side by a wall aligning the footpath, consisting of an arch or a series of arches. Beyond the wall of arches was the footpath, then the kerb of the street. There was a single low step at the door, but it is not clear if that was inside or outside the alignment of the wall in which the door was located. It probably doesn't matter. There was a lane or alleyway adjacent to the nightclub or nearby.

The events of 17-18 May 2003 8. On the evening of 17 May 2003 Ms Yanet Sternberg, Mr Kiperman's then girlfriend, was celebrating her 21st birthday. A dinner was held in her honour at a restaurant in Darlinghurst, attended by some 40-50 family and friends, including Mr Kiperman who was then aged 23. He said that he drank a couple of glasses of wine at the dinner. Yanet wanted to party on after the dinner, and some of the guests arranged to meet at the De Ville nightclub. Ms Sternberg and Mr Kiperman were among the last to leave the restaurant. The time is not clear, but it was late and could have been after midnight. They caught a taxi to the De Ville.

Upon arrival at the De Ville, Mr Kiperman observed people standing outside the club entrance. There were two lines of people awaiting entry, and others standing about in the vicinity. Adjacent to the door to the nightclub there was a roped-off area behind which he saw a doorman and some security personnel standing together. It was his memory that there were three or four people behind the rope, all male, dressed in smart casual, dark clothes. One was Mr Dixon. Another was a tall man with black spiky hair, with a light complexion. Another was a stocky, dark, Tongan-looking man. They were checking ID and letting people in from the head of the queues. Mr Kiperman and Ms Sternberg joined the left line, which was moving quickly and they soon got to the front, when the Tongan-looking man refused Mr Kiperman entry.

Mr Kiperman denied that he had said anything or behaved in a way that would have led to him being denied entry, and there followed an exchange between Mr Kiperman and the Tongan-looking bouncer, the precise terms of which are not entirely clear, but to the effect of Mr Kiperman asking why he couldn't go in, and the bouncer replying, "Look, I'm just not letting you in." The next thing Mr Kiperman remembered was being pushed by the bouncer and he stepped back. Then suddenly and without warning the bouncer punched him in the face, as a result of which he remembered hitting an object and falling, and becoming unconscious. His next recollection was being in hospital. He had no recollection of any other events in between the attack and waking up in hospital. He remembers that the police came, but has no memory of talking to them.

Mr Kiperman's version of events was that the attack was unprovoked and that he was unaware of the reason for the attack. He denied that he was drunk, and that there had been any preceding event or episode to precipitate the attack. It was the defendants' case, as put to Mr Kiperman in cross-examination, that he was heavily intoxicated and behaving in a loud and aggressive manner outside the entrance to the De Ville. While waiting in the queue, he had been talking loudly and abusively to someone on his mobile phone. He was in fact refused entry, not by a bouncer of Islander appearance, but by a tall Caucasian man with dark spiky hair. Upon being refused entry, Mr Kiperman argued the point with the doormen, and made threats. He then stormed off and went somewhere else. It was put to Mr Kiperman that he was then assaulted somewhere away from the nightclub, and then returned to the door of the nightclub and resumed arguing with the doormen. He then threatened Mr Dixon, who he only saw then for the first time that evening, saying, "I know where you park your car on Glenmore Road". After the police arrived, Mr Kiperman was angry and agitated. He even said to Sgt Goodman that if he took his gun off he would fight him.

There was, however, substantial corroboration of Mr Kiperman's version of the events outside the De Ville that night.

Ms Sternberg gave evidence for Mr Kiperman. She met him at university about 18 months before the assault, and they started going out. They were still going out on her 21st birthday, and the relationship continued for some time after the assault, but they subsequently broke up. She now works in a human resources role at the Macquarie bank. She was a self-assured, articulate and spirited witness who gave her evidence in a straightforward, unembellished manner, and in my assessment she was a credible witness. She conceded she had consumed alcohol earlier that night at the restaurant, and upon arrival at the nightclub was perhaps "tipsy", but denied she was drunk. Mr Kiperman was in a similar state.

She said that upon arrival at the nightclub a number of their friends, and others, were milling around outside, or waiting to go inside. She remembered Mr Kiperman had his mobile but did not recall him using it outside the nightclub. There were bouncers manning the door. Mr Kiperman chatted to some of them. He was that sort of person, talkative and confident. They joined the queue, but when they got to the front they were told they couldn't go in by a bouncer. He was tall, with a "very very large build", with dark skin, like a Maori or an Islander. She had seen this bouncer many times on previous visits to the nightclub. The bouncer said something like, "You can't come in". Mr Kiperman said' "Why?" or "Why not?"

Mr Kiperman proceeded to argue the point with the bouncer, explaining that it was Ms Sternberg's birthday, and they had friends who had already gone inside. She also joined in at some stage, trying to convince the bouncer to let them go inside, but he just said, "No" and "You, but not him."

At that point she walked away a few metres to talk to some friends out on the footpath beyond the archway, to tell them what was happening,. While she was doing this she had her back to the entrance, and after a few minutes heard someone scream, "He's been hit". She looked back and saw Mr Kiperman lying on the ground with his head against a pillar. She ran to him to check he was okay. He was dazed and had a blank expression. His head was bleeding. Shocked and angry, she went over to the bouncer who had refused them entry and started yelling at him, saying words to the effect, "How could you do that?" He did not respond, but when she kept on at him, he moved forward and came up close to her face. She saw his jaw "crease up" and he looked extremely angry. She thought he was going to hit her with his head. Someone then pulled her away, and she went back to Mr Kiperman, who was still dazed, and mumbling.

She did not remember the exact sequence of events after that but did recall someone coming out of the nightclub and dragging the bouncer inside. Also, a woman who worked for the nightclub came out and tried to calm her down. She recalled the police coming, but not speaking to them. Eventually she accompanied Mr Kiperman to the hospital.

It was the defendants' case, as put to Ms Sternberg in cross-examination, that she and Mr Kiperman were heavily intoxicated. After he was refused entry he stormed off and was assaulted elsewhere, and that she then went to the security staff at the door and accused them of organising someone else to assault Mr Kiperman further down the street. After the police arrived, she was abusive and uncooperative, and did not give a statement.

Mr Leon Goltsman gave evidence for Mr Kiperman. He knew Mr Kiperman, but was in fact more of a friend of his older brother, Eddie, from school. Mr Goltsman was invited to the birthday party and went to the De Ville afterwards, with a friend, Mr Igor Chalik and was outside the entrance at the time Mr Kiperman was assaulted. He is 34 years old and works in advertising as a marketing manager. As a witness he was extremely irritating, in that he did not listen to the questions so that his evidence was often jumbled and rambling. Nevertheless, he tried to give an honest account of events on that evening. The note I wrote to myself at the time was: "This witness is all over the place, but the essence of his evidence is truthful, and consistent with his contemporaneous statement to the police".

Upon arrival outside the nightclub, Mr Goltsman saw a large queue of people awaiting entry. He saw Mr Kiperman talking to a bouncer of stocky build, with an Islander appearance, and peroxide hair. He overheard part of the conversation, namely Mr Kiperman asking, "Why can't I come in?", and the bouncer replying along the lines of, "Because I don't want you here. I don't like you." Then Mr Kiperman pulled out his mobile phone and said something like, "Look. I'm calling the management. All my friends are in there. Why can't I come in", and appeared to be making a phone call. The next thing he saw was the bouncer push or punch Mr Kiperman (in his statement he said pushed then hit). Mr Kiperman fell back and hit his head against a pillar, then fell to the ground.

Mr Goltsman went on to describe the aftermath of the assault, including Ms Sternberg asking the bouncer why and calling him "a dickhead". He saw the bouncer raise his fists. He said to the bouncer something along the lines of, "You're in trouble now. I'm calling the police" and "I've called the police". There was a second bouncer at the scene, a tall clean-shaven male of Caucasian appearance, who watched these events and, after Mr Goltsman called the police, took steps to get the bouncer back into the nightclub. Subsequently a lady came out of the club and she screamed at everyone outside to go away. Later, the police arrived and Mr Goltsman gave them a statement (Exhibit H).

Mr Igor Chalik also gave evidence for Mr Kiperman. He was present at the time and witnessed the assault. He was there as a friend of Mr Goltsman, and had not previously met Ms Sternberg, but knew Mr Kiperman, having been friends with his older brother. Mr Chalik is a property finance broker. Sgt Goodman didn't like Mr Chalik, and thought Mr Goltsman was the best of the witnesses at the scene. In my view, however, in the witness box Mr Chalik was the best of the eyewitnesses. He gave calm, lucid evidence. He was the person who had the least connection with Mr Kiperman, and there was simply no reason for him to lie. I accept his evidence as truthful, and his account as the most reliable of all the witnesses.

Upon arrival outside the nightclub with Mr Goltsman, Mr Chalik saw people outside the entrance "mingling". He saw Mr Kiperman having a loud discussion, an argument, with one of the doormen, a man of Pacific Islander appearance, who was wearing dark pants and a darkish maroon coloured shirt. He noticed that his hair was bleached, which he considered unusual for persons from that ethnic group. He asked someone what was going on, and was told that Mr Kiperman was being refused entry. As Mr Kiperman continued his conversation with the bouncer, Mr Chalik thought he might go home, and went towards Mr Goltsman. He described what happened next as follows (T 222.20 - 223.20):

" Q. Then what happened? A. I heard some noise to my right out of the - and I saw some motion to my right, and as I looked around I saw the Tongan gentleman taking a giant sort of swing at Richard Kiperman, which caught him on the side of the head, sent him flying I would guess at least a metre through the air, at which point his head hit a column, a concrete column that was next to the club entrance. He bounced off that, then his head bounced off - there was a large pot plant at the base of that column. He bounced off that, and then eventually hit the pavement motionless.

Q. What did you do? A. I, initially I was just in shock, obviously, because I'd never seen anything like that before. I seem to recall even verbalising something to that effect. I wasn't speaking to anyone in particular, but I think I said, "That's unbelievable." I took probably two to three steps towards Richard, because it was obvious that he was going to need some assistance, if he was still alive, which I wasn't sure at that stage. And as I got closer to Richard after the three steps, the Tongan or whatever he is, Pacific Islander gentleman turned around in my direction and started to walk towards me and raised his hand as though he planned to hit me as well.

Q. Did you say anything or do anything? A. No, at that point it was obvious to me that I was his next target. I took a few steps back to give myself some room to defend myself.

Q. What happened next? A. Then there was screaming behind him, a female screaming, I don't know who it was. At that point he turned around and started heading towards Richard Kiperman's girlfriend.

Q. You just made a motion with your arm. She's sitting in court here? A. Yes, the girl over there. So he turned and started heading towards her, still having his hand up as though he was planning to slap her.

Q. What else did you see? Did you hear anything? Did you hear anything at that stage, anyone say anything? A. No, she was just screaming. One of the other men who were at the door, who previously I believed to be doormen, called out something, I don't exactly remember what it - I was still sort of in defensive mode, so I'm not clear as to whether they called out a name or something else. But that caused the Pacific Islander gentleman to then change direction and I think they said something else to him. At that stage I was still looking at Richard, because he was still motionless, and they motioned him to come into the club and he just walked straight into the club, not via the queue or anything else, just he went straight past those gentlemen and into the club."

The assault was sudden, and so violent that Mr Chalik thought Mr Kiperman might be dead. The other doorman did nothing to assist, and ignored Mr Kiperman. Later, a lady came out of the nightclub. Mr Chalik spoke to her and amongst other things said, "I think you're going to have big problems when the police get here", and she responded, "Why do the police need to be involved?" When the police arrived, they got out of their car, and had a lengthy conversation with this woman (a Ms Bronwyn Scholfield, the General Manager at the De Ville). Mr Chalik made a statement to the police (MFI 2).

The version of events given by Mr Kiperman and supported by these witnesses was denied by the defence, which had a different version.

Mr Dixon, the licensee, gave evidence. He was at the De Ville on the evening of the assault. He said he was not outside at the time, as asserted by Mr Kiperman, but inside. He was alerted to a problem and went outside. He remembers a commotion but his recollection of the details of the evening was scant. But he did remember Mr Kiperman making a threat, saying he knew where Mr Dixon parked his car on Glenmore Road. Mr Dixon did not respond. After the police arrived, he took them inside the nightclub, where he retrieved the CCTV tape and showed it to the police.

There were nine CCTV cameras in and around the nightclub. Some were outside, and covered the front entrance area. There was a recording apparatus hidden in a discrete section of the nightclub, into which Mr Dixon placed a tape that recorded the areas covered by these cameras. The tape showed the date and time. The tape in question was apparently wiped after 28 days and re-used. I disallowed any evidence as to what the police may or may not have seen on the tape, but the inference clearly arises that the incident in which Mr Kiperman was assaulted was not on the tape viewed by the police. Just how the recording system operated was not explained. There were nine cameras, and one tape. It is not clear what part of the tape the police saw. More importantly, it was not explained how the recording process operated, or which views were recorded and for how long, or the length of the rotation cycle, camera by camera. The incident could well have been missed.

Mr Dixon described the security arrangements at the De Ville. The third defendant company trading as Prime Protection had been engaged since Mr Dixon became the licensee to provide personnel. He knew it from previous experience, and in particular trusted Mr Andrew Maguire, part of the management team of that organisation, whom he regarded as having a good demeanour for work as a doorman, and capable in handling difficult situations. Mr Maguire had been working as the security supervisor at the De Ville for some months before the assault, and was on duty that night, together with two other security men: Pat and Con. Pat was a stocky, tall Islander. They were dressed in smart, dark casual clothes.

The defendants called Mr Maguire from Prime Protection to give evidence. He confirmed that on the night of 17-18 May 2003, Prime Protection supplied three security staff: himself, Con Panagakis and Patrick (Pat) Mahutariki. Mr Maguire was the supervisor. Con was an employee of Prime Protection, but according to Mr Maguire, Pat Mahutariki was hired from a contractor, Sonic Security, but he often worked for Prime Protection, and had worked previously at the De Ville. He went on to describe Mr Mahutariki as a Cook Islander - who was tall, with a solid build and fair-skinned. He had "a large Afro for a hairstyle which sometimes he'd pull back in a ponytail."

Mr Maguire confirmed that at the request of the De Ville, security staff wore "smart black" attire, and he personally sometimes wore a suit jacket, but they each had a lanyard round their neck displaying their security licence, and radios with earpieces.

The nightclub also kept an Incident Book or Diary, in which incidents were recorded. Mr Maguire inserted an entry either at the end of his shift that night, or before starting work the following night: (see Exhibit 2D5). The relevant parts of his entry read:

" Male & female approach door, male appeared very intoxicated and appeared to be abusing someone on his mobile phone. I then told female that her boyfriend could not enter the venue due to his intox level and also due to this aggressive behaviour. Male then became aggressive towards doorstaff & threatened all security. His group of friends and also his girlfriend escalated the problem. As the male stormed off away from the door yelling at doorstaff he had an altercation with another gentleman further down Cross Street. We then heard the female screaming and noticed the male appeared to have been hit. Security was then accused by female of organising the other male to hit her boyfriend. I then called Rose Bay Police. Security were not involved in the incident."

Mr Maguire first said that at the time of the incident Con was with him outside on the door. Pat was inside, upstairs. Later in his evidence he said he was unable to remember if Pat was there or not, but his usual position was inside the nightclub. Mr Maguire did not witness an assault, and was unable to recall in the witness box how he knew Mr Kiperman was assaulted further down Cross Street, or what it was about Mr Kiperman that allowed him to conclude that he had been hit. He conceded that he could not really remember the night that clearly, as it was a long time ago, and his recollection was more based on reading his report out of the diary. He had no recollection of Ms Sholefield coming out of the nightclub.

It appears that Mr Maguire did not participate in the viewing of the CCTV footage.

Neither Con Panagakis nor Pat Mahutariki was called to give evidence.

Was Mr Kiperman pushed and then punched by a bouncer? 35. The first issue for determination is whether Mr Kiperman was injured as a result of having been pushed, then punched, by a bouncer from the De Ville nightclub, or whether he was assaulted by a stranger, some distance away from the entrance to the nightclub.

It was submitted that Mr Kiperman failed to establish that the assailant was a person associated in any way with either defendant. It was further submitted that I should accept the evidence of Mr Maguire in preference to that of Mr Chalik, Mr Goltsman and Mr Kiperman. Mr Maguire's description of Con and Pat did not match the description given by Mr Chalik, or that given by Mr Goltsman. His evidence that Pat was a tall Cook Islander with dark, afro hair, went unchallenged. Mr Goltsman described a man with bleached blond hair. There were also discrepancies of description as to the clothing he was wearing. Pat could not have been the assailant.

I prefer, however, to believe the evidence of Mr Chalik, Mr Goltsman, and Mr Kiperman as to the critical aspects of the events that occurred that evening. Mr Kiperman gave what might perhaps be a sanitised version, in the sense that he underplayed the extent of his verbal exchange with the bouncer in response to him being denied entry. I have no doubt, however, that he was assaulted by a bouncer from the nightclub in the area immediately adjacent to the door, within the portico. The suggestion that the assault took place further down Cross Street, and that it was perpetrated by some stranger, was a total concoction, presumably invented to deflect suspicion from those responsible for security outside the nightclub. That coloured the totality of the evidence for the defence, and lent verisimilitude to the suggestion of a cover-up. In my view the evidence convincingly establishes that a bouncer of Islander appearance first pushed, then king-hit Mr Kiperman when he persisted in arguing the point as to his being refused entry. This consisted of a punch of considerable force that propelled him backwards, such that he was airborne for about a metre, onto a nearby pillar. In reaching this view I have accepted the corroborative evidence of Mr Chalik, in particular, and Mr Goltsman, in preference to that of Mr Maguire, whose evidence was implausible and whose recollection of events was in my view unconvincingly scant. I am simply unable to accept his version that the assault did not take place in his immediate vicinity and that he was totally unaware of it.

I find, therefore, that Mr Kiperman was injured as a result of an assault on him by a bouncer from the De Ville nightclub in the early hours of 18 May 2003. I reached this view on the evidence of the eyewitnesses, but there was other supporting evidence and inferences. In my view, adverse inferences are to be drawn from the failure of the defence to call Ms Scholefield, or the bouncers. The entry in the Incident Book was made in furtherance of the attempted concealment of the true events. I ascribe no probative value at all to the CCTV tape. To my mind it was preposterous to suggest that it was regarded as insufficiently important that it did not need to be kept, and could simply be recycled at the conclusion of a month. Management at the nightclub were clearly on notice of its importance, in particular Mr Dixon and Ms Scholefield. The police evidence was, in my view, largely equivocal, and I can find little in it that tends to corroborate one version over another. I did, however, think it odd that so little credence was given by Sgt Goodman to the eyewitness accounts of assault by a bouncer.

Were any of the defendants vicariously liable for the assault on Mr Kiperman? 39. The next issue for determination is whether any of the defendants should be held to be vicariously liable for the assault by their bouncer.

Evidence was led for the defendants that, apart from Mr Maguire, the only other security personnel on duty at the DeVille that night were Mr Con Panagakos and Mr Pat Mahutariki. This evidence went uncontroverted, and in those circumstances, having regard to the evidence that the assault was perpetrated by the bouncer of Islander appearance, more probably than not it was Mr Mahutariki. The evidence that Mr Panagakos was an employee of Prime Protection, but that Mr Mahutariki had been hired by Prime Protection from his general employer, Sonic Security, also went uncontroverted.

It was submitted that even if Mr Kiperman succeeded in establishing that the assailant was a person associated with the De Ville nightclub, he failed to establish that the assailant was an employee of either defendant. Rather, he was the employee of an independent contractor, Sonic Security, and therefore neither defendant is vicariously liable for his conduct: Sweeney v Boylan Nominees Pty Limited [2006] HCA 19.

In my view, however, this is a case in which the relationship between the assailant, his general employer, and the nightclub, is different from that in Sweeney v Boylan Nominees, such that the operator and licensee should be held liable, vicariously, for the assault on Mr Kiperman.

The relationship in the present case is more akin to that in Hollis v Vabu [2001] HCA 44, in which it was held that a bicycle courier who negligently injured a pedestrian was in a relationship of employment that gave rise to vicarious liability. The considerations identified as bearing on the determination of that question included, in summary: the fact that the bicycle courier did not provide skilled labour requiring special qualifications; the limited latitude for the exercise of control over the manner of performing the work; the presentation of him to the public as an "emanation" of the principal, by reason of what he was required to wear and how he was to look; the hours of work and the method of calculation and payment of remuneration; the absence of the need to provide any sophisticated tools and equipment; and the considerable scope for the exercise of control over him: at [48] - [57]. Here, most if not all of these considerations were present.

I find, therefore, that the relationship between Mr Mahutariki and the first and second defendants, during the course of carrying out his duties as a bouncer at the De Ville nightclub, was that of employer and employee, and they were thus vicariously responsible for the consequences of his conduct and acts committed in the course of it.

The second question for determination is whether the assault was outside the scope of employment. The defence conceded this issue (T 413.35-37), but I was in any event satisfied that the assault was committed in the course of the employment and was so closely connected with the employment that it was within the scope of that employment, and find accordingly: Zorom Enterprises Pty Ltd v Zabow [2007] NSWCA 106.

The first and second defendants are, therefore, liable to Mr Kiperman for the injuries, and their consequences, caused by the assault outside the De Ville nightclub on 18 May 2003.

Even if Mr Mahutariki is not to be identified as an employee of the principals, at the time of the assault, there was nevertheless the required closeness between their business and his conduct such as to make them liable for it: Sweeney v Boylan Nominees at [24]. Mr Mahutariki had the authority to admit or exclude persons seeking entry to the nightclub, and in so doing was acting in right of his principals and with their authority, and not in an independent capacity: at [18]. His conduct was undertaken in the course of, and for the purpose of, executing that authority: at [22], and not as a principal pursuing his own business or as an employee of another, pursuing that person's business: at [33].

Was Mr Kiperman injured as a result of negligence by any defendant? 48. The next issue for determination is whether Mr Kiperman was injured as a result of negligence on the part of any of the defendants.

It was submitted on behalf of Mr Kiperman that the operator and licensee of the nightclub were under a non-delegable duty of care to Mr Kiperman, and other potential patrons, to provide appropriate security services, with security guards who perform their duties in a safe and proper manner, which was unable to be delegated to the security company, and they were in breach of that duty by providing bouncers who assaulted potential patrons. The security company was under a similar duty, and it also breached that duty in providing unsatisfactory staff. That is not, in my view, an appropriate formulation of the duty owed, or of the breach by the defendants of their duty of care.

In my view, the duty of care owed to that class of potential patrons to the nightclub, including Mr Kiperman, who were outside the entrance to the nightclub, might generally be stated as a duty to take reasonable care not to expose them to foreseeable risk of injury. The scope of that duty extended to include an obligation to control the conduct of the security staff, to so supervise their activities and minimise the risk of injury to potential patrons in the discharge of their security responsibilities, including that of permitting or excluding entry and in maintaining order on and around the premises. Specifically, that included taking reasonable care to protect them from deliberate and unlawful acts.

It was not easy to discern precisely how the plaintiff's case in negligence was framed, and how it was said that the defendants breached their duty of care.

Insofar as it might have been alleged that there was negligence in the choice of the security company, that was not alleged, nor was there any evidence that could support such an allegation.

Insofar as it was alleged that there was an unsafe system, there was no evidence that could support that allegation.

The only allegations pleaded that seem to me to have potential substance relevant to the evidence adduced, are those set out in the Further Amended Statement of Claim at paragraph 8, in Particulars of Negligence (e), (f), (g) and (h). These were summarised, in my view appropriately, by counsel for the third defendant as a failure to prevent an altercation after becoming aware of a dispute or argument between the plaintiff and his assailant (T 417.24), by intervening to stop the argument (T 418.10) or by intervening after the push, to prevent the punch (T 418.47).

Counsel for the operator and licensee, Highflame and Mr Dixon, submitted that there was no opportunity for his clients to have intervened directly in that, firstly, Mr Dixon was not present at the relevant time, and, second, the responsibility for security had been appropriately and adequately delegated to Mr Maguire. I am satisfied that Mr Dixon was not present at the time of the assault. In this regard I find that he was upstairs, inside the nightclub at the time of the argument between Mr Kiperman and the bouncer, and only came downstairs and outside the entrance after being alerted by radio that an incident had occurred. I accept also that it was reasonable for supervision of door security to have been left to Mr Maguire.

For these reasons I am satisfied that there was no breach by the operator and licensee of their duty of care to Mr Kiperman. I find, therefore, that direct negligence on the part of the first and second defendants was not proved.

I come then, to the question of whether Mr Maguire negligently failed to intervene, so as to prevent the assault.

Counsel for Prime Protection, the employer of Mr Maguire, contended that Mr Maguire was not negligent. It was submitted that he did not observe any argument between Mr Kiperman and his assailant. Indeed it was Mr Maguire's evidence that it was he who denied Mr Kiperman entry, and had the argument with him, and that Mr Mahutariki was not even there. I have already rejected this version of the events, and I am satisfied that on the balance of probabilities, Mr Maguire did see the argument, and its escalation to the pushing of Mr Kiperman by the bouncer, and the subsequent punch. I find, in this regard, that there were some minutes between the push and the punch during which the verbal exchange continued. There was time before the push for Mr Maguire to have intervened to put the episode at an end. More importantly, there was time after the push to have intervened to discipline the bouncer and call him away.

It is not necessary to show that the precise event that resulted in the injury was foreseeable: Caledonian Collieries Ltd v Speirs [1957] HCA 14 at [12]. It is only necessary to consider whether it was reasonable to foresee in a general way the kind of thing that occurred: Thomson v Bankstown Corporation (1953) 87 CLR 619 at 630. I am satisfied that Mr Maguire should have foreseen the risk of injury to Mr Kiperman and intervened to prevent the punch that injured him.

I am satisfied that had Mr Maguire suitably intervened either before the push or between the push and the punch, it would have been prevented, and there was, therefore a direct causative link between his breach of duty and the injuries sustained by Mr Kiperman.

I find, therefore, that Mr Maguire was guilty of negligence for which his employer, the third defendant, is vicariously liable.

The question then arises as to whether the operator and licensee can be held to be similarly liable, vicariously, for the negligence of Mr Maguire. I was not addressed on this issue, but it gives rise to the same considerations as those discussed above in the context of the bouncer who committee the actual assault. I see no basis, however, for differentiating the relationship between the owner and licensee on the one hand, and Mr Mahutariki on the other, from that of Mr Maguire. He may have been more senior, and in the supervisory role, but otherwise the indicia to establish the existence of a relationship giving rise to vicarious liability existed.

I am satisfied that Mr Maguire was either an employee of the first and second defendants in the Hollis v Vabu context, as an emanation of those principals, or that, pursuant to a relationship of closeness and authority akin to that in Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41, as explained in Sweeney v Boylan Nominees Pty Limited [2006] HCA 19, he was acting in right of those principals and with their authority, and not in an independent capacity.

I find, therefore, that the first and second defendants, as operator and licensee of the nightclub, are vicariously liable for the negligence of Mr Maguire.

It remains only to consider the defences raised by way of allegations of contributory negligence and under s 50 of the Civil Liability Act 2002. Counsel did not address on these issues, but they were pleaded and not formally abandoned, so I need to deal with them, albeit briefly.

The evidence did not in my view support a conclusion that Mr Kiperman had drunk excessively on the evening. Consistent with the evidence of Ms Sternberg, he may have been tipsy, but he was not drunk. In any event I was satisfied that he was not intoxicated to the extent that his capacity to exercise reasonable skill and care was impaired at the relevant time: s 50(1).

Turning to the Particulars of Negligence, it is alleged firstly that Mr Kiperman failed to leave the premises when requested to do so. Second, it was alleged that Mr Kiperman provoked an altercation. Third it is alleged he failed to have regard to his own safety by reason of intoxication. The determination of the issue of contributory negligence is a question of fact on which minds may differ. It has also been held that: "It is tempting but erroneous to compare closely the facts of cases decided in the past with the facts of the case calling for decision": Knight v McLean [2002] NSWCA 314 at [61].

In my view there was no probative evidence to support the allegations of contributory negligence, but in any event I could not be satisfied that there was any causal relationship between the conduct alleged and being king hit by a bouncer. All Mr Kiperman did was argue. That does not, in my view, amount to provocation sufficient to constitute a failure to take reasonable care for his own safety. He didn't take any physical steps, for example, to attempt to force entry. It was not required that he be restrained or forcibly moved on. The sudden and unwarranted attack on him was entirely disproportionate and unforeseeable.

For these reasons I find that Mr Kiperman did not fail to take reasonable care for his own safety and was not therefore, guilty of any contributory negligence for which it would be just and equitable to reduce his damages.

Damages for assault 70. The defendants firstly made a submission that any damages awarded to Mr Kiperman for assault should be assessed under the Civil Liability Act 2002, and that s 3B of that Act does not apply in circumstances where the liability, albeit arising from an intentional tort, is attracted vicariously. This was a formal submission only, it being acknowledged that I am bound by the decision of the Court of Appeal in Zorom Enterprises Pty Ltd v Zabow [2007] NSWCA 106.

I proceed, therefore, to assess the damages arising from the assault according to common law principles without the limitations imposed under the Civil Liability Act 2002.

Mr Kiperman was born on 27 December 1979 and is now 27. He was 23 at the time of the assault. He seeks compensatory damages for past out-of-pocket expenses, for future hospital, medical and other out-of-pocket expenses, for loss of earnings in the past, for a loss of earning capacity in the future, and for non-economic loss (general damages), together with interest. No claim is made for attendant care and assistance. A further claim is made for exemplary or aggravated damages.

Notwithstanding the apparent severity of the assault and the fact that Mr Kiperman struck his head on a pillar, and notwithstanding complaints of ongoing problems in the form of headaches, dizziness, loss of memory and disorientation, there is simply no medical support for them. It is clear that he suffered a post-concussive syndrome, the symptoms of which persisted for some time, however the medical evidence suggests that this has resolved. Dr Fearnside, the eminent neurological surgeon, said this in his report of 26 May 2006:

"The literature supports return to normal of any cognitive impairment following such an injury within 3-6 months of the incident. The cause of his ongoing self-reported memory problems is not clear. It is unlikely to be related to a traumatic brain injury. It may be related to a psychological consequence of the trauma…Mr Kiperman is fit to work as a car salesman and I would place no restrictions upon his work in that regard. I do not believe that he suffers from any ongoing disability which would respond to treatment."

Apart from post-concussive problems, Mr Kiperman may have also sustained a minor neck strain, but there is similarly no medical evidence to support any organic basis for ongoing neck problems. Similarly there is an allegation of injury to the left leg, which is not adverted to in any reports served on his behalf. Only Dr Eagleton, qualified on behalf of the defendants, mentions the legs, and in any event his reference is to the right knee. In any event, he found no clinical basis for the complaints.

There are no allegations of psychological injury or sequelae.

I find, therefore, that Mr Kiperman suffered from a temporary post-concussive syndrome of moderate severity that was productive of headaches and other symptoms of drowsiness, loss of memory, occasional dizziness and disorientation, which had resolved within two years of the assault.

Past out-of-pocket expenses of $420.00 were proved.

I turn to the claim for past economic loss, as to which I should make some comment on what occurred in the course of the trial. Following evidence that emerged from Mr Kiperman as to lost commission and other loss of earnings, various changes in employment, and an inability to perform his pre-accident work, it was sought to amend the plaintiff's claim. I was only prepared to allow the amendments sought, on terms, namely that there would be an adjournment to enable investigation of the new allegations by the defendants, with an order as to the costs wasted. In these circumstances, the amendment was not pressed, and the plaintiff's claim was limited to the case particularised. In submissions, counsel submitted that I could, nevertheless, allow past economic loss since the date of the particulars, on the basis of a cushion.

In my view, it is not appropriate that a plaintiff should be entitled to damages, even in the way suggested, for a claim that was not particularised and which took the defendant by surprise, thus circumventing the ruling I made. Be that as it may, it is in any event academic, because the medical evidence does not support a substantial claim for past economic loss. In those circumstances, the claim for past economic loss is restricted to the sum of $2,400.00 particularised. To this I add an amount for the loss of occupational superannuation, and award a total of $2,550.00. That amount is, in my view, consistent with the medical evidence, and is in my view sufficient to appropriately compensate Mr Kiperman for any loss of earnings caused as a result of the assault.

For the reasons set out above, there is no basis for any damages in respect of the future. I find that Mr Kiperman has not suffered any future diminution in his earning capacity, nor has he established that he will incur any future out-of-pocket expenses arising as a result of the assault.

The final head of compensatory damages to be considered, therefore, is non-economic loss. In assessing an appropriate amount of general damages I take into account the severity of the assault and its immediate aftermath; the problems experienced by Mr Kiperman for the duration of symptoms from the post-concussive syndrome: the fact that there has been a severe interruption to his normal life during a period of comparative youth; the resulting loss of enjoyment, inability to undertake all his usual activities, including sport, and a general interference with the amenities of daily life. I award a sum of $25,000.00.

Interest is payable on past general damages, which in this instance is the totality of the award. I allow 2% per annum for four years, a sum of $2,000.00.

I come now to the claim for exemplary or aggravated damages. It was submitted on behalf of the plaintiff that I should award him significant aggravated damages, having regard to the contumelious nature of the assault. However, there was no evidence of any increase in suffering on the part of Mr Kiperman resulting from any malicious or highhanded conduct on the part of the defendants. Furthermore, I have already taken account of any increased indignity or outrage to the plaintiff's feelings and of the horrifying nature of the circumstances in which the injury was inflicted, in the award of general damages.

It was also submitted that there should be an award of exemplary damages to the plaintiff. Such damages are to be awarded to register the seriousness of the misconduct; to punish and deter and to assuage any urge for revenge: Lamb v Cotogno (1987) 164 CLR 1 at page 9. If it were the assailant himself who was being sued, there might be a case for an award of such damages, however, in the absence of some evidence of knowledge on part of the present defendants that Mr Mahutariki had some sort of predisposition to indiscriminate violence, there is in my view no basis for an award of exemplary damages.

I do not, therefore, consider it appropriate to make any award for aggravated or exemplary damages.

Damages for negligence 86. The award of damages for negligence falls to be assessed under the Civil Liability Act 2002. The only head of damages that requires to be re-considered having regard to the limitations introduced by that legislation is the non-economic loss.

It was submitted for Mr Kiperman that there should be an award assessed by reference to 30% of a most extreme case, having regard to all the circumstances, including the serious injuries sustained, the fact that he has suffered from the consequences for some 4 years, his age, and the continuing nature of his problems. In the light of the medical evidence, and the findings I have made, this plaintiff does not in my assessment satisfy the required statutory threshold for the award of any damages for non-economic loss.

Table of damages 88. The damages assessed are summarised in the Table of Damages below:

Heads of Damage Civil Liability Act Common law Past out-of-pocket expenses $ 420.00 $ 420.00 Future out-of-pocket expenses Nil Nil Past economic loss $2,550.00 $ 2,550.00 Future economic loss Nil Nil Non-economic loss Nil $25,000.00 Interest Nil $ 2,000.00 Total damages $2,970.00 $29,970.00

Summary 89. Mr Kiperman was injured as a result of an assault by a bouncer working at the De Ville nightclub.

The first and second defendants are vicariously liable for that assault.

Mr Kiperman was injured as a result of the negligence of Mr Maguire.

Each of the defendants is vicariously liable for that negligence.

Mr Kiperman was not guilty of contributory negligence.

The damages for assault are assessed at $29,970.00.

The damages for negligence are assessed at $2,970.00.

Disposition 96. For the reasons set out above, I enter a verdict for the plaintiff against the first and second defendants for $29,970.00, and against the third defendant for $2,970.00.

Defendants to pay the plaintiff's costs, on the ordinary basis.

I reserve determination of the cross-claims. If the defendants require apportionment and are unable to agree, I will determine that issue on written submissions, for the provision of which I will set a timetable.

The exhibits are to remain in court for 28 days, after which period they may be returned to the parties.

14/08/2007 - Typograpical error - Paragraph(s) Catchwords

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.

CITATION: Kiperman v Highflame Pty Ltd [2007] NSWDC 165 This decision has been amended. Please see the end of the judgment for a list of the amendments.

Caledonian Collieries Ltd v Speirs [1957] HCA 14 at [12] Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 Hollis v Vabu [2001] HCA 44 CASES CITED: Knight v McLean [2002] NSWCA 314 at [61] Sweeney v Boylan Nominees Pty Limited [2006] HCA 19 Thomson v Bankstown Corporation (1953) 87 CLR 619 at 630 Zorom Enterprises Pty Ltd v Zabow [2007] NSWCA 106

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