Lamble v Howl at the Moon Broadbeach Pty Ltd [2013] QSC 244

Judgment (292 paragraphs)

[1]

TORTS - NEGLIGENCE - VICARIOUS LIABILITY - where employee of nightclub defendant assaulted patron plaintiff - where plaintiff was on the periphery of a fracas involving a co-manager of the defendant and other patrons - where security staff were unable to assist - where employee was not authorised to perform security-related duties - whether a significant connection exists between the employee's unauthorised act in assaulting the plaintiff and the employee's employment - whether the unauthorised act was done in furtherance of the defendant's interests

[2]

TORTS - NEGLIGENCE - APPORTIONMENT OF RESPONSIBILITY AND DAMAGES - GENERALLY - where plaintiff had been assaulted by employee of the defendant - where plaintiff had suffered other, unrelated injuries following the assault - where the other injuries were significant - whether the other injuries were relevant to the apportionment of damages

[3]

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - IN GENERAL - where plaintiff had been assaulted by employee of the defendant - where plaintiff had suffered other, unrelated injuries following the assault - whether the other injuries had altered the injury that occurred as a result of the assault - whether other injuries added to the injury that occurred as a result of the assault - whether the other injuries alter the measurement of damages

[4]

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - LOSS OF EARNINGS AND EARNING CAPACITY - PARTICULAR CIRCUMSTANCES - where plaintiff was a labourer - where plaintiff suffered other, unrelated injuries following an assault by employee of the defendant - whether plaintiff's likely future work alters the measurement of damages

[5]

Civil Liability Act 2003 (Qld), s 4, s 9(1)(b), s 11, s 47, s 59

[6]

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7, cited

[7]

Blake v J R Perry Nominees Pty Ltd [2012] VSCA 122, cited

[8]

Deatons v Flew (1949) 79 CLR 370; [1949] HCA 60, conisdered

[9]

Faulkner v Keffalinos (1971) 45 ALJR 80, cited

[10]

Fontin v Katopodis (1962) 108 CLR 177; [1962] HCA 63, cited

[11]

Horkin v North Melbourne Football Club Social Club [1983] 1 VR 153; [1983] VicRp 12, cited

[12]

Meandarra Aerial Spraying Pty Ltd v GEJ Geldard Pty Ltd [2013] 1 Qd R 319; [2012] QCA 315, cited

[13]

New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4, followed

[14]

Nilon v Bezzina [1988] 2 Qd R 420, cited

[15]

Orcher v Bowcliff Pty Ltd [2012] NSWSC 1088, cited

[16]

Poland v John Parr & Sons [1927] 1 KB 236, considered

[17]

Pollard v Trude [2008] QSC 119, cited

[18]

Ryan v Ann Street Holdings Pty Ltd [2006] 2 Qd R 486; [2006] QCA 217, followed

[19]

Shaw v Menzies & Anor [2011] QCA 197, cited

[20]

Sinclair v Caloundra Sub-Branch RSL Services Club Inc [2001] QDC 196, cited

[21]

Sprod bnf v Public Relations Oriented Security Pty Ltd (2007) Aust Torts Reports 81-921; [2007] NSWCA 319, cited

[22]

[1] The plaintiff, Mr Lamble, was injured outside a bar in Broadbeach on 8 December 2006 when he was assaulted by Anthony Cerantonio, a barman employed by the defendant. The weapon that was used to hit him was a metal rubbish collector with a long handle which was swung by Anthony Cerantonio at the plaintiff's head, rendering him unconscious and causing him significant injuries.

[23]

[2] One of the major legal issues in the case is whether the defendant is vicariously liable for the actions of Anthony Cerantonio. There are also significant factual issues about the terms of Anthony Cerantonio's employment with the defendant and the effects of the injuries caused by his assault on Mr Lamble.

[24]

[3] On 8 December 2006, Mr Lamble went to his employer's Christmas party at the nightclub run by the defendant. His employer was a company called Currumbin Roof Trusses Pty Ltd. The function started at about 7.00pm. By the time he left he said that he had had six to seven pots of beer while at the nightclub and that he had one beer at an earlier nightclub he attended next door from about 6.00pm to 6.30pm.

[25]

[4] Luigi Cerantonio was Anthony Cerantionio's father and a co-manager of the defendant's nightclub with a Mr Mario Zulli. On 8 December 2006 Luigi Cerantonio said that there was an incident which began when a patron informed him that somebody had just smashed a glass in the toilets and said that he was going to smash someone up. He saw the man indicated to him come out of the toilets and put his arm around him and asked him outside. The man pushed him to the chest and then the security guards took him outside through the sliding doors to the Niecon Plaza area, the upstairs entrance for the club. He said that three or four security people were needed to subdue this man, which were all of the security staff at the club that night. He was in that Niecon Plaza area outside the sliding doors and said that somebody tried to throw a bottle at them from towards the end of the bar. Some of the man's colleagues tried to come into the Niecon Plaza area, but he got all but one of them back inside. Mr Zulli then went inside the sliding glass doors and the man who had been taken outside put up a real battle for about an hour while they were waiting for police to come for him.

[26]

[5] It was suggested to Luigi Cerantonio that, when he became involved with the man who came out of the toilet, it was inconsistent with the defendant's asserted policy that only security officers should handle such problems in the bar. He said that he was not involving himself in security or crowd control but just asking somebody to come outside with him. He believed that if another person was at risk of being hurt and the security staff were not there, it was appropriate for him to intervene but said that it would not be appropriate for a staff member. He believed that it was acceptable for him because he was responsible. He agreed that he had to set an example for the staff also.

[27]

[6] Mr Zulli observed that some of the parties who were drinking at the bar had been drinking before they arrived. In describing the same event he said one of the patrons came to Luigi Cerantonio and him at the top bar. The patron mentioned that someone had broken a bottle in the toilet and was coming out to cut someone in the work party, presumably the Currumbin Roof Trusses party. He described a man with paper towelling around his hand and a broken bottle in the other and indicated to the security staff to come and grab him. He wanted them to take the patron out through the sliding glass doors into the Niecon Plaza. He described that patron as going crazy, trying to fight everybody and said that security took him outside until the police and ambulance were called.

[28]

[7] He did not go outside but said that the rest of the security staff came to hold him down. He was holding the glass doors inside the bar and said that people were trying to push past him and that one person leaned forward to punch him in the face. He told those people that if they wanted to go outside they could go downstairs and described a person in a red shirt as trying to hit him. He said he grabbed that man and went towards the downstairs exit of the club, got to the first level and pushed him towards the entrance hoping he would leave. He had thought that there would be a security man downstairs but there was not.

[29]

[8] He said that the man in the red shirt picked up a bottle from near the front door and threw it at him. It broke on the wall beside him. He then decided to force that man and his friend out of the venue. There were no security staff available but when he tried to force the man outside, three or four men set on him outside the front door. He saw Matthew Cerantonio, Anthony's brother who also worked at the bar, standing there in a daze but did not see Anthony Cerantonio. He gave Anthony no permission to involve himself in security matters. He did not sack Anthony after he was charged, however, saying that everyone deserves a chance.

[30]

[9] When Mr Zulli first saw the man who had allegedly threatened to attack another patron, he said that neither he nor Luigi Cerantonio went to get security guards because those sorts of things happen all the time. He said the man had blood on the paper around his hand and that he, Mr Zulli, nodded to a security guard. He did not see any glass in the hand of the potential offender and said he may have dropped it.

[31]

[10] In his statement to police made on 12 December 2006, he said that he and Luigi Cerantonio each grabbed an arm of the man and Mr Zulli said "It's time to leave". In his evidence before me he said that the comment "It's time to leave" was directed by him to one of the defendant's security officers who took over from him. By that stage the man had started to resist Mr Cerantonio and him. He said that he was very tired when he made the police statement.

[32]

[11] He initially said that he did not know what was alleged against Anthony Cerantonio at the time he made the statement but, in paragraph 26, he says that he knew that the man who was injured was hit by Anthony Cerantonio, which he was told by other people. He could not recall seeing Anthony Cerantonio anywhere near the fight when it was going on and believed that he was not involved in the fight to his knowledge. He rejected the suggestion that he was involving himself in a security matter but said that he was acting with due care as an owner of the business. He emphasised that this was the only time in eight years that he had intervened in a situation like this.

[33]

[12] He said that, after a bottle was thrown at him on the steps leading out of the club, he grabbed the person who had thrown it and put him in a headlock and he was then set upon by others. The video footage shown by the club's CCTV indicates that the man in a red shirt, a Mr Brian Gale, and a man with blond hair in a black t-shirt, a Mr Hayden Vercoe, were first to exit the premises. Mr Zulli is shown in the video grappling with Mr Vercoe. The plaintiff then comes into the scene apparently from the exit to the club and behind Mr Zulli, Mr Vercoe and Mr Gale. That was consistent with Mr Zulli's evidence that he did not recall Mr Lamble being involved before, either in the bottle throwing incident or on the staircase. It seems likely, however, that Mr Lamble must have followed his colleagues from Currumbin Roof Trusses down the steps fairly closely.

[34]

[13] That video also shows a guard, identified as one from another venue, at the scene, who was not involved in the fight. He appeared towards the end of the fight and that is consistent with footage from the Gold City Council's CCTV which shows a number of security guards rushing out from premises nearby and heading towards the scene of the fight towards its end.

[35]

[14] Mr Zulli denied kneeing Mr Lamble as appears to have happened from the Gold Coast City Council CCTV footage. He did not identify Matthew Cerantonio as being near him at the time a figure appeared to be kneeing Mr Lamble. He believed Matthew Cerantonio was doing nothing and was not involved in the fighting. He was not sure what stopped the fight, although it was put to him that the assault by Anthony Cerantonio led to it stopping.

[36]

[15] He said that he put the man, Mr Vercoe, in a headlock because he thought he might come back upstairs with a glass and potentially injure patrons to whom he had a duty of care. He also said that there was no security guard at the exit onto the mall at the time. He also said that he acted out of pure fear as well as concern for his patrons. In respect of the terms of the house policy, he was not sure whether he was the manager on duty at the time and doubted that he was. That was relevant to the issue of whether Anthony Cerantonio should have sought advice from the manager on duty instead of involving himself in the fight.

[37]

[16] He agreed that a fight outside in the mall was not good for the defendant's business, after initially denying it, describing fighting of that type as part of the industry and that most people would accept that there could be problems of that nature in a mall at night. He accepted, however, that it was not good for a manager to be involved in a fight and accepted that it was best for it to be stopped and that he needed help for the fight to stop.

[38]

[17] Anthony Cerantonio was not dismissed summarily in spite of provisions in page 16 of the house policy document which could have justified such a course. Mr Zulli said that he was sufficiently disciplined by the prosecution he faced and what he described as a life changing experience from having behaved in the manner that he did. He described the house policy as a guideline and said that everyone deserves a second chance and that Anthony Cerantonio was a member of the family and that the family dealt with it in a different way. He said that Anthony was trying to help his uncle who was being beaten up. When it was suggested to him that it was helpful for the business to bring the fight to an end, he responded by saying that Anthony Cerantonio needed security help and that what was important was for him to get away.

[39]

[18] The evidence of the plaintiff, Mr Lamble, was that one of his acquaintances, Mr Gale, had been asked to leave about five minutes before they decided to leave, apparently because he appeared to be too intoxicated. I infer that Mr Gale may have been involved in the attempt to support the man who had been taken outside into the Niecon Plaza area. He and Mr Lamble left about the same time. Mr Lamble intended to take a taxi with Mr Gale to go home. Mr Lamble was walking down the stairs but next recalls waking in hospital and has no recollection of the events. He has told some doctors a version of what happened which he has seen since on video footage which was placed in evidence before me.

[40]

[19] From that footage one can see staff of the defendant wrestling with Mr Gale, Mr Vercoe and the plaintiff on the footpath outside the nightclub. The plaintiff was wearing a blue shirt with white trousers which allows him to be distinguished from other people in the scene shown on the grainy CCTV footage. It is also possible to discern Anthony Cerantonio attacking the plaintiff. He can also be seen to collapse on the ground where he remained for quite some time until he was removed by an ambulance.

[41]

[20] Mr Lamble agreed in cross-examination that he had drunk heavily in the past, having lost his driver's licence in 2002 for drink driving, but denied that he drank more than nine beers that night. He denied being intoxicated or unsteady on his feet. He said that he did not wish to drink more because he was going home to see his three week old son.

[42]

[21] He recalled one of his co-workers being restrained by security staff outside the bar, possibly a man called Steve Stewart. He agreed that Mr Gale tried to force his way outside through some glass doors towards where Mr Stewart was being dealt with by security staff. He observed Mr Gale go downstairs with Mr Zulli. He said he finished his beer while Mr Gale was escorted out and followed about two minutes later. He could not recall a bottle being thrown around the time he exited. He also believed that he had stopped to say goodbye to a co-worker called Jaclyn Scein and could not recall Mr Gale yelling abuse at Mr Zulli. Nor could he recall Mr Gale or Mr Vercoe yelling abuse at Mr Zulli. Neither Mr Gale nor Mr Vercoe were called as witnesses in the plaintiff's case. He said he had not kept in touch with them. He could not recall any shattered glass in the stairwell, nor a collection of glass or bottles at the bottom of the stairwell. He agreed that CCTV footage outside the bar showed himself, Mr Gale and Mr Vercoe struggling with Mr Zulli, that it appeared to be an angry looking fight and would be likely to have been seen by Anthony Cerantonio if he was coming down the staircase to exit the bar.

[43]

[22] Emma Petherick was a research coordinator at the law faculty at Bond University and was outside in the mall when the plaintiff was attacked. She witnessed the fight at the bottom of the steps outside the bar and saw Anthony Cerantonio at the bottom of the steps with the dustpan and broom. She observed him run and hit a man standing by who must have been the plaintiff. He fell to the ground and the man with the dustpan walked back into the bar. She could not recall now how many people were involved in the fight but said that her statement made closer to the time described five or six people being involved in the fight. She said that she thought it was initially mates mucking around together and did not think of calling the police. She had not seen the man who was struck involved in the fight, saying that he was simply standing by and offered no provocation for the assault.

[44]

[23] Ms Scein worked for the plaintiff's employer, Currumbin Roof Trusses, for about 10 years to November 2010 and knew the plaintiff through work. She also had been at the Christmas party and described what must have been Mr Zulli grabbing Mr Gale by the shirt and dragging him towards the exit heading downstairs with Mr Gale walking on his own feet. She said that Mr Vercoe went with Mr Gale, that he was not being forced but was following out. She did not see the plaintiff at that stage but went looking for him as she was preparing to leave and wanted to gather her group together. She could not find him, left the club, went downstairs and saw the plaintiff lying on the floor outside the club and saw that he was bleeding with most of the damage to his face.

[45]

[24] Kathy Barun was an employee of the defendant at the bar in 2006, having been there for a couple of years on the door. She recalled the party on 8 December 2006 and said that there was a large group there who had been drinking for quite some time when she arrived. She was told to keep an eye on them and observed an incident a couple of hours later when Mr Zulli conducted a young man outside and a couple of others followed him. She heard glass breaking at the bottom of the stairs and asked Anthony Cerantonio to go and clean up the glass mess downstairs.

[46]

[25] She had seen Mr Zulli escort patrons before, although not often. She had not seen Anthony Cerantonio do that. She said it was the place of Luigi Cerantonio and Mario Zulli rather than Anthony Cerantonio. When she asked Anthony Cerantonio to clean up the glass, she said that he went and obtained the equipment to clean it up and had it with him when he went downstairs. She did not see Matthew Cerantonio on the stairs although he appears in one of the videos.

[47]

[26] Anthony Cerantonio described the patrons at the club as people of 25 years and over to approximately 55. He said it was a pretty safe place, with a predominantly female patronage and well lit. He had never previously been involved in an incident of violence nor had he seen another member of staff involved. He said there were normally four or five security guards who would look after unruly patrons and believed that there were about five on the premises on 8 December 2006.

[48]

[27] On that day he opened the bar at about 7.00pm. There were several Christmas parties at the bar so that it was a busy night. On his observations a lot of people who were patrons had started drinking early and several had to be escorted out. He remembered one major incident where a man was let out of the top entrance. He had wrapped what appeared to be toilet paper around his fists. He saw Mr Zulli apparently involved in handling this man and saw his father holding the door to the exit at the top floor closed and helping security take this man out.

[49]

[28] Shortly after the incident he observed when the man was taken out through the glass doors upstairs, he was told by Ms Barun that there was some broken glass downstairs which he should clean up. He said that he grabbed his dustpan and brush, went down the stairs and cleaned up the entrance and saw something happening outside. He described a fight where his uncle Mario Zulli was on the floor and scuffling with two or three men beating onto him, grabbing and throwing him. He moved outside and went to try to break up the fight. He said the fight stopped and started again. He grabbed the dustpan and swung it. He said that he did not think but just reacted. It was admitted on the pleadings that he hit Mr Lamble. He said that he had been told at staff meetings to let security staff deal with issues of violence.

[50]

[29] When he cleaned up inside the doorway of the club at street level he put glass into the dust pan and then went to investigate outside. He did not see his brother Matthew Cerantonio out there although the video taken from the CCTV camera in the club indicates that Matthew Cerantonio should have been in full view of him. That might be explained by the fact that the struggle involving Mario Zulli, the plaintiff and his friends, may have drawn most of his attention. There was a security guard shown on that video whom he did not recognise. He agreed that the video appeared to show someone raising his knee but could not identify that person as Mario Zulli. He explained his actions by saying that he was coming to the aid of his uncle who was in trouble and that it was a family affair.

[51]

[30] He also said that he was scared and that if it had been somebody else than his family being beaten up he would not have stepped in. He said that if it was a normal fight he would have walked away and would not have assisted another manager of the business although he agreed that the business was in effect conducted as a family business because of the nature of his relationship with his father and the friendship between them and Mr Zulli. He agreed that he wished to make the defendant's business successful and that his employment continued for some years afterwards.

[52]

The defendant's vicarious liability for the assault

[53]

[31] The defence on the issue of vicarious liability was essentially that Anthony Cerantonio, in assaulting the plaintiff, had not acted within the scope of his authority as a bartender and that he had been instructed orally and in writing not to become involved in crowd control, fights, the commission of assaults or security issues.

[54]

[32] The written instruction was said to be in a document called "Company Policies & Procedures, Staff Induction Booklet, House Policy", described as the house policy document. One of the interesting factual issues, though not in my view determinative in the overall result, was whether it had been signed by Anthony Cerantonio before this incident. The status of that document when ordinary employees were faced with a security or crowd control issue at the bar where the security staff were unavailable was also significant. Before I discuss those issues further it is useful to set out the evidence about the nature of the documentary and other restrictions on the employees' activities.

[55]

[33] Luigi Cerantonio said the house policy document was originally drafted by the American franchisor of Howl at the Moon and adapted locally. The procedure was that new employees would be asked to read the house policy and sign it and that there would have been many employees, perhaps 40 to 50, engaged by the defendant during the period from when it opened in August 2005 to December 2006. He said the original documents signed by Anthony Cerantonio and Matthew Cerantonio were copied before he posted them to the defendant's solicitors, but that other staff documents were kept above the business's cool room where there was a fire which destroyed or damaged many of them in 2009. The compressor for the cool room was the source of the fire but the surrounding structure which was made of concrete was not damaged.

[56]

[34] He said Anthony Cerantonio only commenced working for the defendant in early 2006 in spite of a reference he provided for the sentencing of Anthony in the Magistrates Court when he pleaded guilty to assaulting Mr Lamble which said that Anthony moved up to the Gold Coast in late 2005 after completing year 12. The evidence was uncontradicted that he would have completed year 12 in November 2005 as compared to the date shown in his employment conditions document of 1 October 2005. He said that Anthony started work just after July or August in 2005 during his school break because he wanted to move to Queensland. He had done a deal with his former wife and Anthony where he would come up provided he studied for his exams and went back to complete them in Melbourne. He said that Anthony worked behind the bar and that security officers were always available in the club. He also said that Anthony received a copy of the house policy document.

[57]

[35] Mr Zulli said the nightclub opened in 2005 as a franchise and that the house policies were supplied to them as part of the franchise information. Once staff were hired they were required to sign the house policy document and provide their bank details and obtain a responsible service of alcohol certificate if they did not have one already. Most of that work was performed by him and the signed house policy document was returned either to him, Luigi Cerantonio or the bar manager. His belief was that the original of the house policy document was sent to them by email from the franchisor, probably in the form of a Microsoft Word document as he was able to edit it to add the word "Broadbeach" in appropriate places. The prospective employee was required to provide a signed document back to the company before the next shift for which they were engaged.

[58]

[36] His recollection was that Anthony Cerantonio began working a couple of months after the business opened in August 2005 and that he received a copy of the house policy. Mr Zulli said he believed that Anthony gave him back the whole document signed, that he signed it himself as manager and wrote both dates of 1 October 2005 on the document on that date. He said that it was not possible that Anthony signed it more recently. He said that the originals were sent to the defendant's solicitors with original signatures on them and that he had not seen them since.

[59]

[37] At some stage in November of a year he could not identify, he said that the computer on which the original file was stored was stolen. He said that there was only one hard copy of the house policy available after that theft of which they made a photocopy. He said that the theft was reported to police.

[60]

[38] In respect of the document apparently signed by Anthony Cerantonio, he said that he signed it on the date it bore and that Anthony Cerantonio was working there before 1 October 2005. He denied that Anthony Cerantonio's signature and the dates had been written on an earlier copy than that to which his signature as the manager was applied. He denied the suggestion that Anthony Cerantonio only commenced work early in 2006. He knew nothing about an earlier signature on the documentary pro forma showing signs of the erasing of previous signatures and names.

[61]

[39] In respect of the documents sent to the defendant's solicitors, he said that he scanned copies that the defendant had when asked by its solicitors and that they photocopied documents that were posted to them. He presumed that, otherwise, the defendant kept the originals. Mr Zulli also said that he scanned and emailed documents for the defendant's solicitors and that a lot of their paperwork was destroyed or damaged in a fire on top of the cool room.

[62]

[40] The indication from the defendant's solicitors was that the copy document shown in exhibit 1A at page 57 showing a blank employment conditions document with indications that the employee's name and signature and the manager's signature had been erased, was the earliest generation copy of that document available to the defendant. It is that document which appears to have been the template for the documents apparently signed by Anthony Cerantonio and Matthew Cerantonio. Mr Zulli was taken to all the other documents produced by the defendant showing other signatures of other employees who had signed the employment conditions. None of them, apart from Anthony Cerantonio's and Matthew Cerantonio's pages, showed marks of the nature depicted in exhibit 1A at page 57.

[63]

[41] Notably, the other employment conditions documents that had been signed were said to be all that were available to the defendant for the relevant period. The only signed documents for the years 2005 and 2006 were those attributable to Anthony Cerantonio and Matthew Cerantonio and Susan Rickert. Anthony Cerantonio's is dated 1 October 2005 and Matthew Cerantonio's is dated 1 June 2006. In between is Susan Rickert's dated 5 May 2006 which does not bear the markings shown on the other two documents. That suggests that the defendant was able to produce a blank set of employment conditions in May 2006. Matthew Cerantonio's document shows signs of the previous signature of the manager on it, but the lines, which in other such documents had gaps, are continuous. Mr Diehm, for the plaintiff, suggested to Mr Zulli that that suggested those lines had been drawn back in. He also suggested to Mr Zulli that the other employee conditions documents were signed at an earlier time than those attributable to Anthony Cerantonio and Matthew Cerantonio. Mr Zulli denied that, saying it was wrong. It was also suggested to him that all the other documents must have been signed before the original computer file was lost when the computer was stolen, to which Mr Zulli replied that he did not remember whether the marked copy was the only one that the defendant had. He said it was wrong to suggest that Matthew and Anthony Cerantonio signed after the other employees had signed their documents. He said it was totally wrong to suggest that they signed their documents in or after 2009. The latest of the other documents produced by the defendant was signed on 22 May 2009.

[64]

[42] Mr Diehm suggested to Mr Zulli that he was not in a position to discipline Anthony Cerantonio because he had not been asked to sign the employment conditions document. Mr Zulli denied that and also denied the suggestion that no oral instructions had been given to Anthony Cerantonio about leaving security to the security officers.

[65]

[43] He said that between 2005 and 2009 the defendant would have had hundreds of employees and that it was able to produce only a small number of their house policy documents because of the fire above the cool room which caused the documents stored there to be damaged by both fire and water.

[66]

[44] Anthony Cerantonio said he began work for the defendant in 2005, starting as a glassie. He said that he was told by Mario Zulli never to get involved in a fight on the premises but rather to attract the security officers to the scene. He said that he wrote and signed his name and signature on the house policy document on the date that it bore, 1 October 2005. He was not sure whether he had written the date next to his signature. He said that it was not possible that he signed it after 8 December 2006. He could not identify the manager's signature but said that it was definitely not his father's. He had obtained his responsible service of alcohol certificate on about 9 March 2006, the date it bore. His employment at the defendant was terminated a couple of years after the events involving the attack on the plaintiff.

[67]

[45] He pleaded guilty to the assault of Mr Lamble in 2007 after having engaged a solicitor. In submissions made for him on that sentence, the report of a psychologist, Ms Yoxall, was tendered from which it can be concluded that his instructions to her were that he only commenced to work at the defendant's club in 2006. He said, however, that he commenced employment in October 2005 when he moved to Queensland, although he was a year 12 student in Victoria until November of that year. Initially, he said that he did not go to some of his final exams and then said that he flew down to Victoria do them. He had told Ms Yoxall that he completed school in late 2005. He admitted that he was accepted into RMIT University, initially for a public relations course and later to do accounting. He said that he was offered the accounting course at RMIT after he had moved to the Gold Coast to be with his father. He started studying accounting at the Gold Coast TAFE in 2006 and then went to Griffith University to complete that qualification. In trying to explain why he did not tell Ms Yoxall that he worked at the defendant in 2005, he said that he was not focussed on this when he spoke to her.

[68]

[46] Another former employee of the defendant who gave evidence was Susan Formosa, née Rickert. She worked at the bar from 2006, having been engaged to work there before her 21st birthday in February 2007. She said that she was given a house policy document to read and sign after a trial period by either Lou Cerantonio or Mario Zulli. She believes she signed a document shown in exhibit 8 on 5 May 2006 which is the date it bears. Later she became the bar manager and one of her functions was sometimes to give new staff a copy of the house policy document which they would read, sign and she would keep the back page in a folder in the back office of the bar. Her recollection is that she took her house policy document home and returned it at the next shift and does not recall whether Luigi Cerantonio signed it in her presence.

[69]

[47] Anthony Rickert also worked at the bar and was given a copy of the house policy shortly after he began there which he read through. He says that he signed it on 27 March 2008, he believed on the premises. He thought it occurred some months after he started at work and that he had read it at home before he signed it. He did not recall what Mr Zulli did with the document after he signed it. He was given his copy straight after he signed it and believed that Mr Zulli retained the page with the signatures on it.

[70]

[48] He recalls working with a lot of other people at the bar during the two years he was there and said that Lou Cerantonio and Mario Zulli were hands-on owners but that unruly patrons were never removed by them on their own. They would oversee that process. He could not recognise the manager's signature on the document he had signed.

[71]

[49] Ameka Benton was also employed at the bar in 2009 and was given a copy of the house policy document. She said that she still had her copy at home. Her printing and signature are shown on a copy used by a document examiner who gave evidence, Michelle Novotni, but Ms Benton was not sure to whom the manager's signature, shown on her document, belonged She wrote the date next to her signature on that document. She believes she signed it in the staffroom and handed it back or left it on the table and was given the balance of the document consisting of 19 pages but not the signed page. She also worked front of the house and had seen patrons escorted from the premises by security staff but not by Luigi Cerantonio or Mario Zulli.

[72]

[50] Ms Novotni, the document examiner who looked at a number of the house policy documents signed by employees did not have the original document apparently signed by Anthony Cerantonio available to her but she was provided with a scan of a document apparently signed by him. The same applied to the document apparently signed by Matthew Cerantonio. She was supplied, however, with a number of other policy documents that were originals with at least some original handwriting on them. She was also provided with what might be described as a pro forma of the signature page of the house policy document which looked as if it had been used previously, with the identities and signatures of the parties who had signed it whited out. That document appeared, from internal evidence in it, to have been used for the creation of the document signed by Anthony Cerantonio and Matthew Cerantonio. The manager's signature on it appears to have been Mr Zulli's.

[73]

[51] Her conclusion in her second report, which forms part of exhibit 8, was that her observations are more supportive of a "proposition that the discrepancy in the reproduction quality between the manager's signature and the employee's signature, name and the two dates is the result of the manager's signature being written on a more recent generation version of the [Anthony] Cerantonio document than the version on which the employee's signature, name and the two dates were written."

[74]

[52] She went on to say that she would need to undertake detailed examinations of the original document signed by Anthony Cerantonio or at least an earlier generation reproduction than the version submitted. No such original or earlier generation reproduction is available, however. The Anthony Cerantonio document is dated 1 October 2005 while that of his brother, Matthew Cerantonio, is dated 1 June 2006.

[75]

[53] The employee document that was provided to the examiner signed between those dates was that of Susan Rickert (now Susan Formosa). It is dated 5 May 2006 but was not executed on a copy of the pro forma to which I have referred. The other signed employment conditions documents produced from the defendant appear to be clean originals signed by the employee and the manager. They also showed ink marks suggestive of the fact that they may have been kept together in the same file. There are also pressure marks from writing on those documents which revealed indentations on examination by an electrostatic protection apparatus showing images of writing impressions by others on them.

[76]

[54] She said that those documents were not pristine. They included, for example, punch holes and showed evidence of normal wear and tear consistent with their having been in existence for some time. Nor was there any evidence of their having been artificially aged. She agreed that the precursor to the pro forma may have been signed by Luigi Cerantonio.

[77]

[55] The document apparently signed by Anthony Cerantonio was smaller than one would have expected it to be which she said could have been explained by the fact that it was scanned into a PDF document and perhaps scanned again or perhaps, if it had been faxed or photocopied, producing a reproduction at a different scale from the original.

[78]

[56] In her first report, she said that it was inconclusive, in her opinion, whether Anthony Cerantonio's signature as shown on his employment conditions document was the same as the other signatures provided to her said to be authentically his signature. As to her theory that the manager's signature was applied on a later generation of that document, she agreed that that might be able to be explained if Mr Anthony Cerantonio had used a poorer pen than that used by the manager.

[79]

[57] It was submitted for the plaintiff, in summarising the effect of the evidence about the house policy document, that inferences could be drawn from the following facts leading to the conclusion that Anthony Cerantonio had not signed the document attributed to him before he assaulted Mr Lamble:[1]**

[80]

(a) No original of the induction booklet nor the Employment Conditions acknowledgement relating to Anthony Cerantonio has ever been produced;

[81]

(b) The document produced has, on its face, evidence of masking and tampering;

[82]

(c) The only other document which has, on its face, evidence of masking or tampering is that pertaining to Matthew Cerantonio, also a family member;

[83]

(d) The Anthony Cerantonio Employment Conditions document is the only document which, according to the relevant expert, has an extra generation photocopying event between the addition of the Employee's signature and the Manager's signature;

[84]

(e) The dates were both written by Mr Zulli, yet they appear to have been applied to the earlier generation copy from that bearing Mr Zulli's signature;

[85]

(f) There is evidence of overwriting of the date on the relevant form;

[86]

(g) Anthony Cerantonio was likely to have been in Victoria at the time when these documents were purported to have been signed in the presence of Mario Zulli, undertaking his last year of High School;

[87]

(h) Anthony Cerantonio is related to the Director, Lou Cerantonio and very familiar with the other Director, Mario Zulli;

[88]

(i) There is evidence that the staff induction booklet was not universally provided to all staff;

[89]

(j) Finally, Zulli's evidence of the loss of the computer file for a clean copy necessitating thereafter the use of the adulterated page 20 shows that document was signed after the other specimen page 20s.

[90]

**[58] Those submissions are persuasive. The plaintiff also submitted that the failure of the defence to call Matthew Cerantonio and to prove other documents that should have been available permitted me to draw adverse inferences against the defence case, certainly in respect of the significance of the house policy document. I agree and am quite sceptical about the date when any such document was signed by Anthony Cerantonio. Those matters referred to in the previous paragraph and the legitimate inferences I am able to make, particularly taking into account the effect of Ms Nevotni's evidence and the inconsistencies concerning the time when Anthony Cerantonio commenced his employment in his own evidence and that of his father, including the disparity between the dates of the house policy document said to be signed by him and, for example, the date of his responsible service of alcohol certificate, persuade me that it is more likely than not that he did not sign the house policy document on the date that it bore. In my view it is probable that he signed it after the incident involving Mr Lamble at the end of 2006. I do not regard it as evidence of the terms of his contract of employment insofar as it affects his capacity to engage in security work.

[91]

[59] Luigi Cerantonio said he told staff, including his son, to leave security to the security staff, something he said was emphasised in staff meetings as well as in the house policy document. He told Anthony not to get involved, particularly because he was concerned for him as a parent. He used to emphasise those matters he said when he drove him home in the car after the business closed. He said that he had seen originals of Anthony's signed forms and put them and Matthew's in the mail to the defendant's solicitors but had not seen them since.

[92]

[60] Mario Zulli said he also told Anthony Cerantonio not to "get involved in shenanigans" on numerous occasions, not to get involved in fights, not to serve people free drinks and not to drink on the job himself. He said that Anthony and Matthew Cerantonio were young and part of the family.

[93]

[61] Luigi Cerantonio agreed that his son, Anthony, was not terminated as an employee after the assault on Mr Lamble and said that if he had not been trying to protect his uncle then he would have been terminated for breach of the staff employment policy. He agreed that he considered Anthony's conduct reflected a concern to protect Mr Zulli. It was suggested to him that that coincided with an interest in protecting the interests of the business. He also appeared to accept that Anthony's behaviour had something to do with his employment and that it was in the interests of the defendant that Mr Zulli not be injured in the fight.

[94]

[62] He agreed that if Mr Zulli was injured there would have been a need to hire somebody else to do some of his work as a casual. He also accepted that it was an advantage to the business to bring the assault on Mr Zulli to an end and said that fighting outside the premises was not good for the defendant's business.

[95]

[63] In cross-examination Mr Zulli agreed that it was important to follow house policy as one of the managers in order to give example to the staff. He said that he gave instructions to Anthony Cerantonio and Matthew Cerantonio more intently than to other staff because they were members of the family. He agreed that they were valuable contributors to the business because the business could count on them as members of the family.

[96]

[64] Mr Pickworth was a security officer at the bar engaged for crowd control. He did not remember bar staff being involved in crowd control. Ms Barun also said that hospitality staff were not used as crowd controllers, nor was Anthony Cerantonio used in that role.

[97]

[65] The defence evidence was that members of the staff were regularly warned against taking on a security role themselves. It was curious that that rule needed regular reinforcement given the other evidence from employees of the defendant that the regular patrons of the establishment were generally well behaved. The plaintiff urged me to be sceptical of the defence evidence about this issue but it seems likely to me that some verbal warnings were given to staff to leave security issues to the security staff. These warnings were also probably given to Anthony Cerantonio but it seems to me, as I shall discuss, were not such as to prevent his conduct from being sheeted home to his employer.

[98]

[66] The proper approach to the question of vicarious liability in cases such as these, where the assumption is that the act was not authorised, is discussed in The Laws of Australia as follows:[2]**

[99]

"There is no vicarious liability if the act of the employee is done to gratify private spite or to achieve revenge. In Deatons Pty Ltd v Flew [1949] HCA 60; (1949) 79 CLR 370; 50 SR (NSW) 50; 67 WN (NSW) 76, the employer was held not vicariously liable for the act of a barmaid in throwing a glass at a customer on the basis that in the circumstances 'it was a spontaneous act of retributive justice'.

[100]

The best known formulation of the test to be applied is that in Salmond on the Law of Torts and in later editions where it states that an employer is liable even for unauthorised acts if they are so connected with authorised acts 'that they may rightly be regarded as modes - although improper modes - of doing them'. The employer is not responsible if the unauthorised and wrongful act is not 'so connected with the authorised act as to be a mode of doing it, but is an independent act'. Gleeson CJ in New South Wales v Lepore (2003) 212 CLR 511; 77 ALJR 558; 195 ALR 412; [2003] Aust Torts Reports 81-684; stated that:

[101]

'Lord Wilberforce explained in Kooragang Investments Pty Ltd v Richardson & Wrench Ltd that to hold an employer liable for negligent acts of an employee is usually uncontroversial as negligence involves performing an allotted task carelessly rather than carefully. Intentional and criminal wrongdoing, engaged in solely for the benefit of the employee, presents a more difficult problem. Even so, employers may be vicariously liable for such wrongdoing, even in cases where the wrongdoing constitutes a flagrant breach of the employment obligations ... it is the nature of that which the employee is employed to do on behalf of the employer that determines whether the wrongdoing is within the scope of the employment.'

[102]

Thus it is the connection between the employee's duties and his wrongdoing which, if close enough, brings the wrongdoing within the scope of his employment: see [33.6.630]."

[103]

[67] Gummow and Hayne JJ, in referring to what had been said by Dixon J in Deatons v Flew,[3] took a similar view to that of Gleeson CJ in New South Wales v Lepore. Their Honours said:[4]

[104]

The answer given by Dixon J, in Deatons, was that the barmaid's action was not

[105]

'a negligent or improper act, due to error or ill judgment, but done in the supposed furtherance of the master's interests. Nor [was] it one of those wrongful acts done for the servant's own benefit for which the master is liable when they are acts to which the ostensible performance of his master's work gives occasion or which are committed under cover of the authority the servant is held out as possessing or of the position in which he is placed as a representative of his master (see Lloyd v Grace, Smith & Co; Uxbridge Permanent Benefit Building Society v Pickard)."

[106]

It may be doubted that what Dixon J said was intended to describe exhaustively all the circumstances which would attract vicarious liability. The statement was made in connection with a claim that an employer was vicariously liable for an intentional tort. Nonetheless, there are two elements revealed by what his Honour said that are important for present purposes. First, vicarious liability may exist if the wrongful act is done in intended pursuit of the employer's interests or in intended performance of the contract of employment. Secondly, vicarious liability may be imposed where the wrongful act is done in ostensible pursuit of the employer's business or in the apparent execution of authority which the employer holds out the employee as having."

[107]

[68] The decision of the Court of Appeal in Ryan v Ann Street Holdings Pty Ltd[5] is also instructive in its discussion of the decision in Lepore. Williams JA said:[6]

[108]

[18] What emerges from the various judgments in Lepore is that the critical test, in broad terms, involves a comparison between the intentional wrongful conduct and the type of conduct the employee was engaged to perform. If there is a 'sufficient connection' (Gleeson C.J. at 535 [40], 536 [42], 539 - 540 [52], 540 - 541 [54], 544 [67] and 546 [74]), or a 'sufficiently close connection' (Kirby J. at 616 - 617 [315], 617 [316], 618 [319] and 618 - 619 [320]), or a 'close connection' (Gaudron J. at 561 [131] and 561 - 562 [132] and Gummow and Hayne JJ. at 586 [213]), it will be open to the tribunal of fact to conclude that the wrongful act was done in the course of employment, albeit in an improper mode. The connection is of critical importance, and as Gummow and Hayne JJ. noted at 587 [217] where the opportunity for abuse becomes greater, so the risk of harm increases. Essentially that means that where an employer clothes an employee with authority which, if abused, could lead to great harm, then (the risk being known to the employer) the easier it will be for a court to draw the conclusion that the wrongful act was done in the course of employment.

[109]

[20] Reference should also be made to Mattis v. Pollock [2003] EWCA Civ 887; [2003] 1 W.L.R. 2158 ... What it highlights, in my opinion, is that the question whether or not an employer is vicariously responsible for conduct of an employee will always essentially be a question of fact. The Australian cases to which I have already referred confirm that. In Mattis it was said at 2167, referring to other English authorities, that the 'focus of concentration should be the relative closeness of the connection between the nature of the employment and the particular tort'. That has also been the test applied in other English authorities. It is sufficient, for example, to refer to Lord Millett in Dubai Aluminium Co. Ltd v. Salaam and Ors [2002] UKHL 48; [2003] 2 A.C. 366 at 401 where he said: 'An employer has been held to be vicariously liable for the intentional wrongdoing of his employee in a wide variety of different circumstances. ... But the circumstances in which an employer may be vicariously liable for his employee's intentional misconduct are not closed. All depends on the closeness of the connection between the duties which, in broad terms, the employee was engaged to perform and his wrongdoing'."

[110]

**[69] The effect of exhibit 1A-24, the DVD from the defendant's CCTV, is that Anthony Cerantonio is shown joining a struggle involving Mario Zulli and probably the plaintiff and his two workmates, Brian Gale and Hayden Vercoe. Matthew Cerantonio is seen heading to the struggle and is immediately joined by Anthony Cerantonio carrying the weapon eventually used by him against the plaintiff. The inference that may be drawn from these events, supported by his evidence in cross-examination, is that Anthony Cerantonio was engaged in an attempt to rescue Mario Zulli from a struggle arising out of his attempts to escort an unruly patron, Mr Gale, from the premises of the club where there were no security staff available because they were all upstairs.[7] There was no suggestion that he was engaging in an act of private spite or revenge. He had not, on the evidence, engaged significantly with Mr Lamble earlier in the evening. The only likely reason for his conduct was to assist to halt the brawl involving Mr Zulli. The brawl in fact stopped almost immediately after his attack on Mr Lamble.

[111]

[70] Even if Mr Zulli would normally leave such an exercise to the security staff, it would be an activity within the course of his employment as was demonstrated by his earlier behaviour that evening with the other patron taken outside upstairs. He was assisted in his dealing with Mr Gale by Anthony Cerantonio and Matthew Cerantonio who were entitled in these circumstances to follow his example. The mere fact that Anthony Cerantonio's conditions of employment may have provided that he should defer to the security staff does not mean that what he was doing was not in the course of his employment, especially when no security staff were available.

[112]

[71] The fact that the plaintiff was not actively involved in the struggle when he was hit does not lead to the conclusion that this was an independently aggressive act by Anthony Cerantonio. There was no reason for him to do what he did except in a misguided attempt to rescue Mr Zulli in the emergency that had arisen.[8] However misguidedly, he was seeking to advance the defendant's interests in protecting one of its managers, his uncle, Mario Zulli. He was not acting in his own interests but in those of his employer. Although he should not have used the weapon, he did not persist with its use once the plaintiff went down. As was submitted for the plaintiff the blow appeared to have been calculated to stop the incident rather than being a "frenzied emotional outburst".[9] It is appropriate to describe his actions in context as carried out in intended or ostensible pursuit of the defendant's interests in protecting Mr Zulli.[10] That he may have principally wished to protect Mr Zulli because he was part of his family does not detract from the latter characterisation of his behaviour in the sense that it should not be said that he was engaged in a frolic of his own like the barmaid in Deatons v Flew.

[113]

[72] Alternatively there was a sufficient connection or a sufficiently close connection between what he did and his employment as to make it just that the defendant should be liable for the plaintiff's injury. That what he did in the circumstances was inappropriate does not take it out of the category of case where he was defending his employer's interests. Nor does the fact that the attack occurred just outside the club lead to the conclusion that his actions were not in the defendant's interests. The defendant had an interest in preserving order outside its premises as well as in preserving its manager's welfare.

[114]

[73] The defendant should, therefore, be held vicariously liable in negligence for Anthony Cerantonio's actions towards the plaintiff.

[115]

Was the defendant directly liable to the plaintiff?

[116]

[74] The plaintiff also argued that the defendant breached its duty to the plaintiff as an occupier in, for example, failing to instruct Anthony Cerantonio not to involve himself in an altercation between patrons of the night club and other employees of the defendant and in allowing him "to carry the metal rubbish collector outside the defendant's premises and towards the plaintiff with a view to doing him harm...".[11] The submissions relied not only on the common law formulations of the duty in cases such as Australian Safeway Stores Pty Ltd v Zaluzna[12] but on s 9(1)(b) of the Civil Liability Act 2003 (Qld) which provides, among other things, that a person does not breach a duty to take precautions against a risk of harm unless the risk was not insignificant. The submission was that the statute established a more demanding test than the common law[13] and that the defendant had failed to instruct Anthony Cerantonio properly.

[117]

[75] In my view, as I have said at [65], the probability is that there was some oral instruction to Anthony Cerantonio not to behave in the manner in which he did and to leave security issues to the security staff. That is consistent with the evidence from other witnesses such as Mr Pickworth and Ms Barun. The different example given by his father and Mr Zulli earlier that evening and by Mr Zulli on this occasion does not seem to me to be sufficient to overturn the general instruction to employees such as Anthony Cerantonio. There is no evidence that Anthony Cerantonio saw the earlier episode involving his father and uncle. Nor is there evidence that Mr Zulli's actions in escorting Mr Gale out, even accepting that Anthony Cerantonio saw the violence accompanying it, should be treated as a general revocation of the earlier advice to bar staff. It may have provided some implicit encouragement to Anthony and Matthew Cerantonio's behaviour in coming to their uncle's aid but it did not revoke the general instruction. Accordingly I would not accept that the plaintiff has shown that the defendant had independently failed in its duty to the plaintiff.

[118]

[76] It also seems likely to me that, even if one acted on the hypothesis that no such instructions had been given, the giving of instructions would have been unlikely to make a difference. The plaintiff would still have been injured in similar circumstances. Anthony Cerantonio would probably have acted in the particular circumstances of this case in the same way so that it would have been difficult to establish that any failure to give instructions caused the injuries to the plaintiff for the purposes of s 11 of the Civil Liability Act.

[119]

[77] The submission that contributory negligence is not available as a defence to an action for trespass to the person was not resisted by the defendant.[14] Nor was the further submission that the Civil Liability Act did not apply in respect of that cause of action because it does not involve a breach of duty as set forth in s. 4.

[120]

[78] In the event that I found that the defendant had breached an independent duty it owed the plaintiff, Mr Atkinson for the defendant argued that the evidence of the plaintiff's drinking and remaining in the group with Mr Gale was relevant to the question of his contributory negligence. The submission was that he voluntarily involved himself in a scuffle outside a club at night where it was foreseeable that an excessive act from another participant could cause him injury. Mr Atkinson submitted that a finding of 30 per cent contributory negligence was appropriate. As I have found that no breach of an independent duty owed by the defendant has been established no occasion arises to determine this issue.

[121]

[79] The evidence that the plaintiff was intoxicated was not particularly strong in any event. He was not obviously staggering in the CCTV footage. He had on his evidence consumed about 8 or 9 beers over a period commencing about 2.30 pm that day. There was a controversy about his weight at the time, whether he was 88 kgs or 68 kgs depending on his oral evidence and that of members of his family compared to a hospital record when he was admitted. There was also photographic evidence suggesting that he was heavier before the accident than he appeared shortly after his admission to hospital after the assault.

[122]

[80] The parties agreed that the hospital records at the time of the assault showed Mr Lamble's weight at 68 kilograms, something that was contrary to the evidence of his weight that he and Mrs Lamble had given. A photograph of him around the time of the birth of his son about three weeks before the incident showed him carrying apparently significantly more weight than he does now. Since the incident in 2006 he says has gone from weighing 88 kilograms to weighing 60 kilograms. The contemporaneous photographs showing his injuries in hospital also show a much more robust looking person than the plaintiff is now. Mr Diehm submitted that the discrepancy might be explained by a transposition error in the recording of the weight at the hospital between 86kgs and 68kgs. The difference would have had significance in respect of his likely blood alcohol content at the time of the assault.

[123]

[81] Dr Hoskins gave evidence about the consequences of the ingestion of alcohol as something that increased the risk that a person will behave irresponsibly while not necessarily making it likely. He also gave calculations of the likely blood alcohol content of the plaintiff depending on whether he was 68 kilograms in weight or 85 kilograms in weight at the relevant time. If he weighed 68 kilograms, the range would have been between 0.067 per cent and 0.111 per cent at the time of the incident. If he weighed 85 kilograms, the relevant range would have been approximately 0.03 per cent to 0.06 per cent. He said that if his relevant blood alcohol percentage was 0.05 per cent then the effects on his behaviour would be likely to be trivial. If it was within the higher range of about 0.07 per cent to 0.11 per cent, then he believed that would cause most people to be more gregarious, less restrained and more ebullient than when sober. He said that those levels would not generally be sufficient to inspire angst among people accountable for the responsible service of alcohol and that it would be unusual for such a person to slur their speech or to have much of an altered gait. Their fine motor coordination would be impaired and they may struggle with fiddly tasks.

[124]

[82] He said that the smell of alcohol on Mr Lamble's breath recorded at the hospital was of no consequence. He also said that alcohol generally results in amplification of the prevailing mood - happy people become really jolly and slightly unhappy people become overtly maudlin. He pointed out, however, that alcohol has the effect of removing inhibitions on mood and behaviour so that people when drunk will engage in activities they would not when sober.

[125]

[83] If his blood alcohol content was in the range of 0.03 per cent to 0.06 per cent it would have been unlikely on that medical evidence that his capacity to exercise proper care and skill was relevantly impaired. The preponderance of the evidence was that the plaintiff was heavier than 68kgs at the time of the assault, more like the 85kgs relied on by Dr Hoskins for his calculations. The plaintiff submitted, therefore, that he had discharged the burden of showing that intoxication did not contribute to the breach of duty under s 47 of the Civil Liability Act.

[126]

[84] Were it relevant I would have concluded that he had discharged that burden but that his behaviour in involving himself in the fight as he did was contributorily negligent to a minor extent having regard to his peripheral activity apparently in trying to break it up and the sudden violence of the attack by Anthony Cerantonio. Had it been necessary to assess an apportionment of liability I would have found him contributorily negligent to the extent of 15 per cent.

[127]

[85] Mr Lamble was born on 13 April 1977. He is now a disability support pensioner. Until the assault he had a good work history in spite of educational difficulties affecting him caused by dyslexia. That condition interfered with his ability to read and write fluently but had not prevented him obtaining work in the building industry since he left school towards the end of year nine. He had been engaged consistently over a number of years by Currumbin Roof Trusses where he started as a jig hand, helping to construct timber roof trusses. He worked in that role for about four to five years and then became a leading hand and a jig setter for another three to four years. In that role he would take over the foreman's position if the foreman was not there.

[128]

[86] He left working for that employer in about 2001 to undertake a world trip when he was about 24 years old but returned to the same position as a leading hand after his trip. He left again in 2002 to go to Cairns to work in a different job for a company called Riverglen Dredging. He stayed there for one and a half to two years and subsequently returned to the Gold Coast where Currumbin Roof Trusses offered him a position as foreman in about 2004. He continued in that position until the Christmas party for the firm on 8 December 2006 when he suffered his injuries. He had also suffered lower back pain from an earlier incident on 10 October 2006 which was interfering with his ability to work at the time of the incident relevant to this litigation.

[129]

[87] He said that his health was good before this assault and that he had no neck pain and was emotionally fine. There is evidence, however, that he had lower back pain from the previous incident in October 2006.

[130]

[88] At the time of the assault he was in a relationship with a lady who later became his wife. Her maiden name was Lisa Fisher. They had been in a relationship for roughly two years and had had a son three weeks before this incident. He said that, before the assault, he had many hobbies including riding motorcycles, snowboarding, engaging in a wide variety of water sports while working hard at his job between 10 and 12 hours a day and between five to six days per week. He was qualified to drive a forklift as well as a truck and used those vehicles in his position.

[131]

[89] He spent two or three days at the Gold Coast Hospital and returned there about two days later for about three to four days for surgery on his shattered left cheek bone and eye socket and jaw. He also suffered a hairline skull fracture, a cut across the left cheek and back pain stemming from his neck down his spine across his shoulder blades together with severe headaches.

[132]

[90] He said that the pain in his back became worse over time and that he had no feeling in the left hand side of his face and still had severe headaches. In 2010 he underwent an operation on his neck by a Dr Cochrane after which he continued to have severe neck pain and headaches.

[133]

[91] He described some of the pain as like "lightning strikes" in his head and his eyes and his back. He suffered from migraines and found that he had a low toleration for noise and that the pain affected his eyesight as well. He says that his sense of smell and sense of taste have also been affected by the incident.

[134]

[92] He and his wife married after the incident about two years later on 13 October 2008 and had another child born on 20 September 2011. They have since separated on a number of occasions and had been apart for 13 months at the time of the trial.

[135]

[93] He tried to return to work, starting off at two days per week for about three weeks, but said that the noise where he worked made it too difficult for him to continue. He has also had other issues preventing him from working and has not worked since then. At the time he owned his own home, which he now rents out because of financial difficulties following on from this incident.

[136]

[94] He did not cope well emotionally at all after the incident. He could not play with his children or pick them up. He could not run or jump or lift his children in or out of the car. He has not returned to his hobbies because he suffers too much pain. He also described difficulties socially in that he does not feel safe when he goes out and suffers from a lot of anxiety. He does not like socialising at clubs or hotels anymore. He described suicidal thoughts including a wish to drive off a cliff or overdose on pills. He said they were mainly just thoughts but that he sought psychiatric attention at the Tweed Heads Hospital on and off for about a month because of those ideas. He has been taking medication for pain relief. He was also placed on anti-depressants which reacted badly with sleeping pills also prescribed for him. He now drinks more heavily. Before the incident he used to drink a carton of beer a week, sharing some with friends. Nowadays he drinks more than a carton per week without sharing much.

[137]

[95] In 2010 the plaintiff was involved in a head-on motor vehicle accident from which he was admitted to hospital suffering injuries to the liver and spleen. He was in hospital for about a week. He also suffered broken ribs and lacerations to the right arm, right eye socket and forehead. His back pain became worse, particularly in the lower back.

[138]

[96] He received physiotherapy for his back problems which include pain in the neck, shoulders, down the spine into the lower back and in the right hip and shoulder. He has been suffering from depression. His wife has also been suffering from a cyst on the left side of the brain and cancer but has provided him with significant domestic assistance. He said that the memory problems brought on by the incident have affected their marriage as has the stress associated with her trying to do everything for him.

[139]

[97] She helps him with toileting, showering and by doing work in the garden including the chopping of firewood, which he did in the past. He now does his own dishes and sometimes bathes his children but finds that it sets the pain off. He cannot mow the lawn because the vibrations from a lawnmower trigger migraines. Although he and his wife are separated she still helps him with those sorts of activities. He has also received help from his parents, his parents-in-law and friends, who help him with housework and taking rubbish to the tip. He rents out the house that he owned before the incident and lives in a rented granny flat on property owned by somebody else. He said that his and his wife's sex life was affected quite a bit by the incident. They have undertaken marriage counselling but remain separated.

[140]

[98] He has undergone dental treatment, chiropractic treatment, psychiatric and psychological treatment. He tried to take on a TAFE course to assist him in reading and writing but failed as was the case with a computer course that he undertook.

[141]

[99] He has been treated with anti-depressants and sleeping tables for his problems with depression and an inability to sleep. He takes a variety of medication for his pain and depression. He said that he had niggling pain in the lower back since he was 17 through making roof trusses but said that that pain was nothing like the pain he has suffered, he said, from not long after the assault on 8 December 2006.

[142]

[100] He could not remember an earlier incident at work on 10 October 2006 for which he claimed workers' compensation where the application for compensation said that he was climbing up onto a semi-trailer and felt enormous pain because he put something out in his back.

[143]

[101] He was shown several surveillance videos which showed him taking his children to school and to parks, driving, going to a café with his wife and children and apparently turning his neck and bending down without difficulty. He agreed that he was able to do that and that he could take his laundry, for example, to a laundromat but said that he still had trouble loading equipment into a car and that he could not chase or play with his children. He agreed that he had tried swinging both children at once but had difficulties in doing that. He also said that outside light still affected him, that his children could hang onto his neck when he was playing, for example in a swimming pool, but said that that was still difficult for him. The surveillance videos showed scenes of that nature including an extended period when he was pushing his children on swings at a playground. There are episodes during the video, however, where he appears to be touching his shoulders and raising them and perhaps stretching in a manner consistent with him suffering discomfort at least in those parts of his body.

[144]

[102] When cross-examined about these issues he said that he would play with his children in that fashion but that it caused him pain. One episode showed him bending down, which he described as stretching because of the pain that he was then suffering. He also said that some days were not as bad as others and agreed that part of one of the videos showed him sitting in a swing for approximately half an hour without too much obvious pain. He said that it became worse as he went along and that he continued to suffer pain to his lower back, neck and shoulders and had problems in lifting weights of five kilograms and more. He said that he was not suffering from migraines on the days that the video evidence related to. The scenes depicted occurred on 23 January 2012, 28 January 2012 and 6, 7 and 8 March 2012.

[145]

[103] Another scene showed him spraying a wasps' nest at his home and running away from it when he had finished spraying it. He appeared to be moving relatively freely in that episode. He also appeared to be moving relatively freely in the swimming pool but said that he could not, for example, hold his daughter around his shoulders out of the water.

[146]

[104] The videos in March 2012 showed him driving at a service station and turning his head apparently freely while reversing. He also bent over loading objects into the vehicle and into a trailer attached to it. Some of the objects he loaded in were tools, included spades. He believed he was going to take rubbish to a tip and was getting a gurney, which is a high pressure cleaner, for his wife to use at their rental property. They were about to visit it to do some cleaning work there. He believed his wife was to use the tools and the gurney at the rental property but that he might have set up the gurney for her.

[147]

[105] He had been away camping a couple of time since the assault and said that he could handle some fishing and his laundry, go to an ATM and do some shopping and that his wife had encouraged him to be independent. He walks his children to school up to two times a week but said that he needs assistance with outdoor activities, that friends mow his lawn for him but that he can take rubbish to the tip about once a fortnight.

[148]

[106] At the moment he said that he looked after himself most of the time but that depended on what was happening with his pain. He said that migraines did not occur every day but there were many occasions when he needed help. He disagreed with any suggestion that his neck was much better now than between 2008 and 2009 but said that his headaches had calmed down a tiny bit. He had recently been referred to a Dr Cochrane, a neurosurgeon, concerning his lower back pain.

[149]

[107] He also agreed that he had a hernia operation in May 2006 which he believed was possibly after he lifted something heavy at work. There is also evidence that he was complaining of a niggling pain in the back on 10 November 2006 and it was suggested to him that he suffered a disc injury when he was 17 years old.

[150]

[108] He has no present plans to do other work although he said he would like to work. He believed that he could not go back to performing work building roof trusses as in his former job. He had tried that unsuccessfully with the support of his former employer, Currumbin Roof Trusses. Mr Monaghan, a director of that company, gave evidence which supported the plaintiff's evidence about that attempt and the difficulties he had in trying to work for his former employer. He believes, and the evidence seems to support this, that his lower back pain would prevent him doing heavy work. He described it as a huge source of discomfort for him.

[151]

[109] The plaintiff agreed that he had had to cope with many other stresses such as the motor vehicle accident in 2010, his wife's illness, the death of his father-in-law, the marital problems that he and his wife had faced and financial stresses.

[152]

[110] When asked whether he could work in a hardware store or as a courier he said that he had problems sitting down and standing for long periods. He also said that he and his wife, before she had their son, used to share the domestic work about half and half and that after the assault on him she had to do pretty well everything for a considerable period. He believed that he would have been on pain relief at the start of the days shown in the video evidence and said that he had instituted a claim concerning the motor vehicle accident that occurred in 2010.

[153]

[111] Mr Lamble struck me as a witness who was doing his best to tell the truth both about what had happened on the night of the assault and in respect of the effects of his injuries on him. His evidence about the effects of the accident on him was buttressed by evidence from his parents, mother in law and wife, all of whom also struck me as honest witnesses who were doing their best to tell the truth.

[154]

[112] Mr John Lamble is the plaintiff's father. He gave evidence about the plaintiff's condition now compared to how he was before he was assaulted and spoke about how active he was; camping, motorbike riding, surfing and playing golf. He said he was good with his hands, being capable of building things as well as fixing motorbikes. He had quite a few friends, particularly from those he grew up with at school. He was also close with his family.

[155]

[113] He said that his son and his wife had a good relationship before the assault and that he helped around the house and was always in employment. He could not recall him complaining of neck pain or headaches before the assault and said that he was well organised and not forgetful. Now he says that he walks in an unusual way, cannot turn his neck properly because he turns most of his body to turn his neck, especially on a bad day. He regularly observes his son in apparent pain. He has not seen him garden since the assault, use a gurney that he possessed since then, surf or ride a motorbike. He says that he still tinkers with motorbikes.

[156]

[114] He also spoke of the plaintiff's estrangement from his wife and says that he sees the two children for about three days each week. He has not seen him engaging in rough and tumble games with them, nor does he commonly lift them up. He is now not as socially active as he used to be, although he observed that he was generally in a better mood when with his children. Mr Lamble senior did lawn mowing and gardening for his son and his wife, especially in the first three weeks or so after he was injured, but later he has done so less frequently. He gave details of other assistance he had provided over the years since the assault and spoke of a period when the plaintiff stayed with him and his wife in a caravan adjacent to their house when he did some cooking, washing and ironing for him.

[157]

[115] He recalled the motor vehicle accident his son suffered in October 2010 when he broke his hip, pelvis and suffered internal bruising and was hospitalised. He observed that his lower back appeared still to be painful because of the way he walked and stood and said that he appeared to suffer greater difficulty since the motor vehicle accident and had a greater need for assistance.

[158]

[116] It was suggested to him in cross-examination that his walking was much worse in the last five months before the trial. He agreed with this suggestion and said that he was very slow in walking and could not lift things up. He could not recall any serious problems with his lower back before the assault in 2006 and said that he had had problems with his lower back since 2006 although they did not appear to be as serious as the problems were now.

[159]

[117] Mrs Lamble senior, the mother of the plaintiff, said that he was a reasonably muscular man before he was assaulted, weighing about 85 kilograms. She gave evidence that he was active and liked to ride motorbikes and to water ski and engage in woodwork. She also said that he was mechanically minded. She spoke of his difficulties with reading at school but said that he had been in constant, consistent employment and was socially active. She described his relationship with his wife as terrific before the assault and said that he did much of the work at the house they bought together at Springbrook. She said he was very excited and happy when their son was born and had not previously complained of headaches, neck pain or balance difficulties. She said that he was a very organised and tidy person with a good memory. He had lost a lot of weight since the assault, was more bent over and on her observation could not turn his neck properly.

[160]

[118] She has found him forgetful since the attack and says that he has not engaged in the activities he used to engage in before the attack. She also provided significant assistance to him when he was in hospital and afterwards. She said that he is now very quiet when he is in a low mood although he is more happy when he is with his children.

[161]

[119] She said that the motor vehicle accident in October 2010 resulted in him having a blood clot in his shoulder and a fractured hip which left him with a sore lawoer back and made him walk with a limp. She agreed that after that accident he needed help because of those injuries to his right shoulder and hip and said that she had not seen him apparently troubled with back pain since he was 17, only since the assault.

[162]

[120] Mrs Fisher is the plaintiff's mother-in-law. She met him in 2004 and described him as very active and strong and a good worker around the house that he and her daughter bought at Springbrook. She had not observed him having neck pain or headaches before the assault and also described him as organised and not forgetful. Since the assault she said he had lost a lot of weight, was weaker, did not hold himself straight and was stiff in turning his head. She also said he was very forgetful now.

[163]

[121] She visited him frequently after the attack, driving her daughter who had just undergone a caesarean section when their baby was born. She also assisted around the house after the incident by gardening and cleaning, as did her husband who is now deceased. She agreed that he had lower back problems, but she did not notice much difference in his problems after the motor vehicle accident of October 2010 compared to the condition he was in after the assault in December 2006.

[164]

[122] She agreed that, before the assault, he would have done about one hour per day work around the house but did more after her daughter had their child by caesarean section. Her husband took on projects the plaintiff had planned such as building fences to keep their child in, concreting paths, building a chicken coop and painting fences.

[165]

[123] Lisa Lamble is the plaintiff's wife. She said that her husband sees their children about two days per week. She also described his condition before the assault saying he was a good organiser in all aspects of his life and a jack of all trades. He was always doing maintenance around the house and did not suffer from migraines or headaches before the assault. They were then financially stable with no debt apart from their mortgage and a large amount of money saved.

[166]

[124] She worked as a pastry chef and chef. She said that they split the domestic chores 50/50 and that he was never low in mood before the assault, describing him as a "lovely guy, lovely gentleman". They married in September 2007. Since the assault they have lived separately for a number of periods and she regards the separation now as permanent. She still sees him about four times a week and telephones him regularly. She described him before the assault as being quite fit and well built and says that now he has no muscle tone and slouches, being all skin and bone. He walks slowly and is very stiff and she observes him apparently having migraines which makes him irritable and appears to cause problems with his vision.

[167]

[125] He now lifts very little where previously he had no such restrictions. He sometimes tries to lift the children but she said that it appeared to be a big struggle for him. Their daughter weighs 18 kilograms. She said that he had difficulty staying on his feet longer than half an hour to an hour and would then try to sit down and then get up and down and pace around. He cannot drive consistently because sitting down for long periods and turning his neck makes it difficult for him. Busy areas and lights at night also make it difficult.

[168]

[126] She said that his condition affects his ability to sleep, that sometimes he does not sleep at all and that at other times he would sleep four hours at most. When outside he wears sunglasses all the time. She says that he cannot handle the lights of a computer, is now disorganised where he used to be very organised and has a depressed mood, suffering panic attacks, hiding away and being irritable and crying a lot. She described that as completely different to his behaviour before the assault.

[169]

[127] He had sought help from the Mental Heath Unit at Tweed Heads in winter 2012 and she said that she was concerned that he would hurt himself, although the treatment at the Mental Health Unit appeared to give him a bit of hope and the anti-depressants prescribed for him helped. She said that when he is in a low mood he tends to yell at the children. He does not now socialise although his friends come to visit him. He is now very quiet. When he tries to cook he becomes overwhelmed.

[170]

[128] She commented on a neck fusion operation he underwent in July 2010 but said that it did not change the difficulties from which he suffered. She does not trust him to look after the children well, but says that he loves them and has described them as the only thing keeping him alive. She also gave details of the significant assistance she provided and continues to provide to the plaintiff and of the assistance provided by her late father.

[171]

[129] Her own health has not been good as she has an arachnoid cyst on her brain which was diagnosed in February 2009. She also had a carcinoma cut out of her eyelid in March 2011 which has come back in two spots during 2012. She says that they finally decided to separate in November 2011. They have not reconciled and she does not anticipate that they will.

[172]

[130] She also gave evidence about the injuries he suffered from the motor vehicle accident in October 2010 and said that his lower back still appears to trouble him but does not affect his movements. She said in cross-examination that he had back pain after the assault but she could not recall it before then. She recalled that he had suffered a hernia but could not recall the event in October 2006 where he complained of lower back pain after climbing into a truck. She said that he had trouble walking and sitting before the car accident but did not believe that it worsened significantly during 2012 and said that she did not notice any real difference in his condition before that accident in 2010 compared to after it. Nor had she noticed any change since the operation on his neck, before he was involved in the motor vehicle accident. She said that he may occasionally move freely.

[173]

[131] When challenged about her recollection of the time she had spent in assisting him she said that she made some records at the time she was giving him that assistance and worked from them. She seemed to me to be reliable in the evidence she was trying to provide about those issues.

[174]

[132] She and her husband have a rental property which explained one of the episodes shown on the videos where he was loading tools into a trailer. She said that they went to the rental property to do a house inspection after a previous set of tenants had left and that Mr Lamble loaded the tools into their car. He also put some filler in a hole in the wall when they were there. Although they took spades there, she thought that they were not needed when they went there. She agreed that her mother also helped her with their child, Harrison, after he was born. She continued to pay the plaintiff's bills including for his medication and treatment.

[175]

[133] Mr Goulding was an employer of the plaintiff in a dredging business in North Queensland. The plaintiff worked there for a little more than six months between 2003 and 2004. Mr Goulding said he was a very good employee, willing and eager and quietly professional. He employed him as a dredge hand and said he had the potential to become a dredge operator, for which he would need a boating licence which was readily obtainable. He said that his difficulties with reading and writing were no barrier to his performing the work. He also made some observations on the change in the plaintiff's physical condition since the assault, saying that he had lost weight, could not hold his head straight and was slower in everything that he did. He gave details of the income of a dredge hand and of a dredge operator including bonuses that were paid to each person on a team based on the production rate of material. He said that if Mr Lamble could do the work he would hire him again. He also said that he could not find a job for someone with lower back problems.

[176]

[134] Mr Monaghan was a director of Currumbin Roof Trusses. The plaintiff had worked there since he was 15 in 1985 and had worked in the first instance for a 10 year period before he went away to travel. He then returned and worked for a shorter period before moving to North Queensland to work in the dredging business. When he came back from there he was made a foreman. He said that the work at his premises was physical, requiring repetitive movements all day. The foreman's job was also physically demanding and required the plaintiff to look after 13 or 14 people. It involved physical handling of timber and working on the jigs as well as supervising other employees. He said that the plaintiff's disabilities with reading and writing were not a disadvantage for the work he had to do.

[177]

[135] The plaintiff returned to work in about 2008 for approximately two months doing light duties. The plaintiff told him, however, that he was unable to do even that work because his pain was too much. He also said that, after the assault, the plaintiff became withdrawn and appeared to lack the drive that he had previously. He gave evidence about the pay that a foreman would receive. There were also incentive bonuses available but since the global financial system worsened, particularly since 2009, his firm had not had enough work to pay such bonuses. He believed that the plaintiff could have handled a sales representative's job.

[178]

[136] He had no memory of the workers' compensation claim made by the plaintiff in October 2006 relating to his lower back although he did recall that the plaintiff underwent a hernia operation in about May 2006.

[179]

[137] He also said that he encouraged his workers to take other positions in the firm, particularly if the physical nature of the work took its toll on their bodies. He said that he would have offered the plaintiff the chance to do mechanical work because of his aptitude in that area. One possibility for his future employment at the firm would have been, for example, in supervising trucks at a similar wage to that payable to a foreman.

[180]

[138] Dr Byth, a psychiatrist, diagnosed the plaintiff with an adjustment disorder with anxiety and depressed mood, with some partial features of post-traumatic stress disorder. By mid 2011 his opinion was that the severity of the anxiety and depression had become severe and assessed a 47 per cent whole person impairment. He did not find the surveillance footage particularly significant in affecting his opinion. He regarded what was shown as minor everyday unpaid activities consistent with his psychiatric assessment. He did not believe that questions of "secondary gain" would have affected the plaintiff in this case because he wanted to return to work, from which he was prevented by his physical symptoms.

[181]

[139] He had not been provided with records from the Tweed Health Mental Health Services Unit of July 2012 and was not aware of the referral of the plaintiff to Dr Cochrane on 5 December 2012 in respect of back pain from which the plaintiff was said to be suffering. He said that pain affects the plaintiff's mental state and ability to work and restricts his physical activity and said that he believed that the plaintiff had a depressive illness brought on by the assault which made it more difficult for him to cope with the injuries from the motor vehicle accident. He did not regard the back pain said to stem from the motor vehicle accident as being as serious as the neck pain from which he suffered because he had been undergoing psychiatric care since 2008 with his impairment progressing from moderate now to marked.

[182]

[140] He said that the plaintiff's condition has worsened since he first saw him in 2008 but said that he believed it was the progression of his original adjustment disorder leading him to become more hopeless and withdrawn in circumstances where the cervical surgery he underwent in 2010 had not alleviated pain, adding to the stresses from which he suffered. Other stresses related to his lack of ability to interact with his children as they grow older and his increasing awareness of his physical impairments making it clearer that he could not go back to work. In respect to the issue of his wife's illness as a possible stressor, he said that the plaintiff's depression is so profound that he cannot help others and that this stressful event within the marriage was just another burden with which he had to cope.

[183]

[141] He agreed that back pain could be a possible source of his deterioration psychiatrically but pointed out that he already had problems with lower back pain before the motor vehicle accident. He said, however, that the main reason for the worsening of the plaintiff's condition, in his opinion, was from the assault, causing his adjustment disorder to be well established and causing at least moderate psychiatric impairment before the motor vehicle accident in 2010. He said that his depression had worsened in the previous 12 to 18 months before his report of 13 December 2012 because he had become more aware of the permanent nature of his physical impairments from the assault.[15]

[184]

[142] When asked to comment on the records of the plaintiff's general practitioner, he pointed out that the general practitioner could be taking the plaintiff's neck pain as a given and said that he had very severe depression originally from the neck pain and that his back problems were unlikely by themselves to bring on such a depression.

[185]

[143] He also said that he could not assess the plaintiff's psychiatric condition from watching the video tapes which, in his view, were still consistent with him being a person suffering quite severe depression. He agreed that, in his view, it was more likely that the plaintiff's condition is psychiatric in origin rather than resulting from an organic injury to the brain because of his limited post-traumatic amnesia, only approximately 10 hours, and his high Glasgow Coma Scale (GCS) score of 14 out of 15. The GCS is used to measure levels of consciousness in a person following brain injury. He said that the fact that the plaintiff had been drinking and had been sedated at the hospital could explain his amnesia. In June 2008, he expected that the plaintiff would make a partial improvement with specialist counselling and higher doses of anti-depressant medication over the next two years but said that his ongoing problems with facial pain, headache, facial numbness and visual loss were likely to continue to generate anxiety and depressed moods in the longer term. That had not eventuated but he attributed the condition that he suffers from now essentially to the assault rather than the later stressors from which he suffered.

[186]

[144] In re-examination, he said that the documents from the general practitioner records and the Tweed Heads Mental Health records did not affect his conclusions and described the plaintiff as a very vulnerable and disabled person when the motor vehicle accident had happened and said that if that accident had not happened he probably would have been in much the same situation as he is now.

[187]

[145] Professor Whiteford, another psychiatrist, reviewed his earlier opinion after having seen the video surveillance evidence of the plaintiff. He said that Mr Lamble appeared very differently on the video from the manner in which he presented when examined. He said that the plaintiff did not seem so much in pain or as depressed and had no apparent difficulty being outside in sunlight.

[188]

[146] He had not disclosed to Professor Whiteford that his wife was very ill and was adamant that the motor vehicle accident was not a cause of major stress to him although Professor Whiteford believed his hospital records indicated that it was a very serious accident. He also noted that the general practitioner's records of those injuries indicated that it had made his depression worse. He said that he appeared much more mobile on the video than he told Professor Whiteford he was and he believed that he could do some work from a psychiatric point of view. He also said that an end to the litigation could help his psychiatric state.

[189]

[147] He also expressed the opinion that his sensitivity to noise was linked to his condition of post traumatic stress disorder and not so much to his depression. He did say that he could not comment about the plaintiff's employability, however, without re-examining him.

[190]

[148] Under cross-examination, he agreed that the process of conducting a mental state examination as he did with his previous interviews with the plaintiff was a more reliable means of diagnosing his psychiatric condition than simply relying upon the video evidence. He also agreed that his previous examination suggested that the diagnosis he made originally was appropriate, that the plaintiff was suffering a depressive disorder. In 2008 he had diagnosed him as suffering a major depressive disorder which was not caused by the other stressors which occurred later and which caused him to assess his psychiatric impairment rating scale (PIRS) at 13 per cent . When asked to compare it with the PIRS rating he assessed on 1 August 2011 after his motor vehicle accident where he said that half his current level of impairment can be attributed to that motor vehicle accident, his marital separation in December 2010 and the death of his father-in-law in February 2011, he said that was justified because he thought that the plaintiff had improved from his earlier assessment of a 13 per cent PIRS but then became worse in the latter part of 2010 into early 2011 because of those stressors.

[191]

[149] He said that the effect of the neck surgery in May 2010 would have been a disappointment for the plaintiff because it did not result in an improvement in his neck pain. He agreed that the failure of that surgery was another stressor relevant to his condition. He also agreed that once the plaintiff was depressed he was more vulnerable to developing depression again and that it was hard to separate out the contributing causes. He indicated that his assessment was that the plaintiff was suffering from major depression rather than what he described as an adjustment disorder with depression.

[192]

[150] The stressors Professor Whiteford spoke of in exhibit 1C at page 36, relating to the motor vehicle accident, his marital separation and the death of his father-in-law, would have caused a depression in a majority of people. To those he added the problems associated with his excessive use of alcohol which had contributed to his marital problems. He agreed, however, that the litany of events after the assault were significant stressors affecting the breakdown of his marriage. He also agreed that if one considered the marital separation as not being caused by the motor vehicle accident, then that would lessen the likelihood of a major depression caused by that accident and the other problems from which he suffered. He agreed that, without the depression from the assault and marital break-up, the other stressors may not have led to depression immediately.

[193]

[151] When cross-examined about the video surveillance evidence he could not recall occasions when the plaintiff touched his shoulders, apparently in some discomfort, but did remember him moving his neck. He could not recall any facial expressions of pain for more than a few seconds and detected no grimacing such as he saw when he examined the plaintiff. He also agreed that smiling on its own was not inconsistent with major depressive disorder.

[194]

[152] He agreed that if the plaintiff's use of sunglasses outside helped stop his vision problems then the fact that he was outside was a less material issue. He also agreed that other incidents shown in the video surveillance evidence, such as when he appeared to grab his son by the arm, might reflect depression, for example, if he was overreacting to behaviour by the child.

[195]

[153] His attention was drawn to the fact that the plaintiff continues to receive pain relief and psychiatric medications, which he agreed was collateral information relevant to his current psychiatric status and that it could lead to the conclusion that he continued to suffer from a major depressive disorder. He agreed that he would need to conduct another mental state examination to assess the plaintiff's current state properly but said that the video raised questions whether he did suffer depression at the time of the video.

[196]

[154] The general practitioner records for 22 February 2012, which was about the time the videos were taken, showed that he was prescribed Seroquel, which is a form of sleeping tablet at that time. The records show that he complained of ongoing back pain to his general practitioner at that time and said that his neck was not better. He also referred to hallucinations and the recent separation from his wife where the general practitioner noticed that he was not coping. The general practitioner appeared to advise that a mental health care plan and an extended care plan for his back and neck pain be established and advised the prescription for Seroquel. On 2 March 2012, the general practitioner had also assessed him as suffering very high psychiatric distress, for which a selective serotonin reuptake inhibitor (SSRI) of the same family as Prozac, which is an anti-depressant, was advised for him

[197]

[155] Professor Whiteford agreed that the general practitioner records were important collateral evidence relating to his condition at about the time the video evidence was taken. He did not regard his reported intake of alcohol as necessarily at the level of alcohol abuse, namely a carton of beer a week. He believed that his back pain could be a significant cause of depression, taking into account the referral by his general practitioner of him to Dr Cochrane on 5 December 2012 for his lower back. He also agreed that it was possible that he had a psychiatric basis for his post-traumatic stress disorder which could be relevant to his reaction to loud noises.

[198]

[156] Dr Ewing, a neuropsychologist, did not find her viewing of the DVD showing the plaintiff's movements earlier in 2012 terribly helpful. The film did not change her opinion about his condition as she regarded the images as not inconsistent with her opinion. She also pointed out that people with depression are often at their best when interacting with their children. She also said that the video showed him in a quiet environment and said nothing about how he would cope with work. She pointed out that the videos showed him in good spirits with his children for about an hour but said that that did not necessarily represent his behaviour generally.

[199]

[157] In respect of the issue of whether he had suffered an organic injury or simply a psychiatric one, she said that one cannot always distinguish between the two. It was her view, however, that the psychiatric injury he had suffered was much more significant and any organic condition was likely to be very mild. She believed that that issue had little relevance to his prognosis. She also said that the neuropsychological testing was more precise than conclusions that might be drawn from the Glascow Coma Scale. His GCS score was between 14 out of 15 and 15 out of 15 shortly after the assault and when he was first seen at the hospital.

[200]

[158] Dr Field, another neuropsychologist, differed from the view expressed by Dr Ewing as to whether the plaintiff had suffered an organic brain injury. She was emphatic that he had not because of the absence of a suggestion of retrograde amnesia stemming from the history or chronology of events given by Mr Lamble, the ambulance officers who attended and the reports from the hospital. She relied upon the GCS scores of 14 out of 15 taken about six minutes after the attack when he was apparently orientated and said that he could not behave like that if he had been knocked out. From that she concluded that it was highly unlikely that he suffered a brain injury.

[201]

[159] It was suggested to her that he had reported amnesia to her and told her that he was able to give some detail of what happened to him because of his viewing of the video of the events but she also said that his sedation at the hospital could also cause amnesia without any organic injury having been suffered by the brain. Her assessments of the residual disability suffered by the plaintiff were significantly lower than those of Dr Ewing. She agreed that those assessments were subjective.

[202]

[160] Having seen the footage from the video, she expressed the view that the plaintiff was no longer suffering a psychiatric illness but conceded that she would defer to psychiatrists about that issue and also conceded that she had gone into greater depth of testing in 2009 than she could draw simply from observations of the video. She pointed out that when she saw him, it was before he underwent surgery to his neck when he appeared to be suffering considerable difficulty with pain. She pointed out, however, that on the video, he was not looking consistently behind his back as she was told by him he would do when he was interviewed in 2009. She also thought that he did not appear disabled on that video. She agreed, however, that she was not in a position to assess his physical state properly simply on observation of the video. She did observe that he did not look as if he were in severe pain, however and agreed that she could not say whether he was physically capable of working without further testing.

[203]

[161] Dr Scott Campbell, a neurosurgeon, believed the cervical spine injury was caused by the assault as were his headaches stemming either from his head injury or from his neck pain or both. If there was an organic brain injury that was more likely to be associated with headaches, but if there was no organic brain injury then it would be more likely to be from the neck injury. In either event, it was likely to have been associated with the trauma to the head suffered by the plaintiff. He agreed that if the plaintiff's neck pain resolved, one would expect his headaches to improve and that if there was no organic brain injury, similarly, one would expect his headaches to improve.

[204]

[162] He described the evidence from the videos as an improvement on his initial assessment of the plaintiff and pointed to four or five episodes shown in the videos where the plaintiff, nonetheless, rubbed his neck or stretched. He said the plaintiff appeared to be in less pain than when Dr Campbell saw him in 2009, instancing the occasion when the plaintiff sprayed the wasps' nest, swung his children at the park and packed his car, which he agreed appeared to be free movement, which was clinically significant, and said that the plaintiff could handle most light activities of daily living. He said, however, that that only provided a snapshot of his abilities and would not be a basis on which to conclude that he could handle some level of employment. He expressed the view that he may be employable for between five and 10 hours per week in some occupations if he stayed away from heavy lifting and agreed that a knock to the head could contribute to the cause of his headaches.

[205]

[163] He said that the plaintiff's lower back pain appeared to be becoming worse but that symptoms can fluctuate after any injury to the neck or back. He described the back pain as significant but at the lower end of the relevant category but a condition which was likely to have an effect on him for the rest of his life. He described the lower back injury as not as bad as the injury to his neck which led to a fusion of the bones in the neck and which assisted in his conclusion about the percentage of disability which he set at 26 per cent of the relevant range. He also indicated in re-examination that the fact that the plaintiff was shown in the hospital photographs wearing a soft collar indicated that he had suffered a neck injury, particularly because the collar was left on for two days.

[206]

[164] Dr Coyne is another neurosurgeon who expressed his opinion about the plaintiff in a number of reports. He agreed that the injury to the plaintiff's neck or cervical spine precluded him from heavy lifting and that he needed to favour sedentary or semi-sedentary work. He said, however, that his psychological and psychiatric conditions made him pessimistic about the possibility that he could return to work.

[207]

[165] He believed that it was possible there may be some very subtle organic injury to the plaintiff's brain which he could not exclude but said that if it were present it would be very small. He did not believe that the plaintiff's headaches were caused by his closed head injury but said that his maxillo-facial injuries or soft tissue injury to his cervical spine could contribute to the headaches. He said that his problems with light and sound were not neurologically based and were not likely to be related to his physical injuries but may relate to his psychiatric condition.

[208]

[166] He did not see signs of discomfort in the plaintiff in the video surveillance evidence and said that if his behaviour had been accompanied by frequent grimacing it would be of greater significance. He agreed that if one fails to observe signs of discomfort in the plaintiff during the video evidence that it still may be that he is in pain. He believed that smiling was inconsistent with someone who was suffering constant pain although agreed that people like the plaintiff could still smile. Essentially, he said, that the plaintiff did not appear to be in a great deal of distress overall as compared to when he saw him in his office. He agreed that psychiatric overlays could lead to variability in presentation.

[209]

[167] In re-examination, he said that if the plaintiff's neck injury improved he would expect his headaches to improve because he believed the neck injury to be more likely to relate to the headaches. He said that what was unusual with the plaintiff was the ongoing severity of his symptoms without an apparent structural reason for them. He believed that he was capable of ordinary day to day activities from what he had observed of the video surveillance evidence.

[210]

[168] Dr Walker produced a report about the injury the plaintiff suffered to his face which included damage to the trigeminal nerve in his face, which was now numb. He said that numbness, including numbness which affected the lips as was the case with Mr Lamble, interfered with many daily activities and that it was appropriate to assess his disability in respect of that injury by reference to American Medical Association (AMA) table 13-23 which dealt with numbness rather than nerve pain. It was suggested to him that table 13-11 was more appropriate as dealing with the particular nerve damaged in the assault, but he distinguished that, it seemed to me logically, on the basis that table 13-11 related to nerve pain rather than numbness.

[211]

[169] Dr Lynham disagreed with Dr Walker simply about the appropriate table from the AMA to apply to the facial nerve numbness suffered by the plaintiff. Dr Lynham believed that table 13-11 was more appropriate. because his diagnosis, not expressed explicitly in his report, was that the plaintiff suffered not just numbness, but some pain. He said that made table 13-11 more appropriate than table 13-23 because table 13-23 only related to numbness. In his report he had used the general term "anaesthesia" which he said included dysesthesia and paraesthesia. He had taken a history of some dysesthesia suffered by the plaintiff to a modest degree which is why he used table 13-11. Based on that evidence I am inclined to accept Dr Lynham's preference for table 13-11. Dr Walker assessed a combined whole person impairment of 31 per cent. Dr Lynham, assessed a 7 per cent impairment related to the facial scarring with the depressed cheekbone. He also assessed a 5 per cent impairment in relation to the sensory disturbance. In terms of prognosis, Dr Lynham noted the possibility of some improvement in the neurosensory function.

[212]

[170] Mrs Coles is an occupational therapist who has seen the plaintiff on two occasions. The video surveillance did not change her opinion overall although she found some of the scenes a little surprising. She said that the scenes where he was shown swinging his children displayed more vigour than she would have expected but noticed, on a home visit she made, that he improved significantly in his mood when he was interacting with his children, something consistent with what was shown on the video evidence. She pointed out that he wore dark glasses in the videos almost constantly, including in the swimming pool, and interpreted his behaviour in the scene where he was shown assisting his daughter out of a pool as assistance rather than lifting her from the pool with the child being supported by her own buoyancy as she clambered out.

[213]

[171] She also pointed out that he was not continuously sitting in the café scenes and that she observed him stretching his back possibly and moving his neck from side to side in the scenes where he is shown at the swings at Kingscliff with his children. She pointed out that he did not lift a child onto the swing and that where he was shown packing items into a car they did not appear to be heavy items.

[214]

[172] Under cross-examination she expressed the view that the plaintiff could do many activities if they were spaced out and said that she did not see him doing any heavy lifting in the videos and that when he was shown drinking coffee he did not extend his neck fully.

[215]

[173] She also said that, if he was asked to do a job that involved driving, he would not be able to carry heavy equipment and would find it difficult to drive as a full time job because of his literacy problems and possible problems associated with the lifting of heavy items. She made similar comments about other possible occupations as a driver. When asked whether he could work in a supermarket she pointed out that stacking shelves is heavy and repetitive work and said that he would have limitations on lifting above shoulder or chest height with loads above 15 kilograms. She did not expect that he would be able to work at the rate expected by a normal employer in such an occupation.

[216]

[174] Nor did she think that he would be able to work in a hardware store advising customers because of his existing interest in plant and equipment. She said she would be surprised if an employer would engage him because of similar problems associated with the lifting of objects for sale and because of his literacy problems. She was not confident that he would be more likely to obtain work after the litigation resolved. When asked to isolate out the effects of the car accident, she said that accident by itself would have caused him to have difficulty working in the position he had before the assault but that it would not have rendered him unemployable.

[217]

[175] Although she said that he was able to handle himself independently with cooking, laundry and dressing himself, she also said that he needed monitoring and prompting for his personal care at a minimum of one to one and a half hours per day. She pointed out that he needed assistance with work in the yard and garden as well as with the cleaning of the house and that there was extra work needed when he had custody of his children. She said that it was very difficult to separate the two incidents of the assault and the motor vehicle accident in respect of his need for care but that his mental health issues led to his needs being greater from the assault. If the assault was excluded she said there would be a need for some assistance but not as much.

[218]

[176] In re-examination she pointed out that his dyslexia would cause problems for him working in retail sales as would his migraines. Absent the assault, she said that he may have been able to work in the position described by Mr Monaghan, as a delivery coordinator at Currumbin Roof Trusses, if he had only been injured in the motor vehicle accident and could sit when he wanted to and adapt himself to the work. She said that he was not fit for such employment, however, as a consequence of the injuries sustained in the assault.

[219]

[177] Dr Burke was an occupational physician who based his assessment of the extent to which the plaintiff's earning capacity would have been affected by the motor vehicle accident on the report of Dr Gillett. Dr Burke had been unable to examine the plaintiff himself. He agreed that because the plaintiff had suffered the motor vehicle accident and had had surgery to his neck, since his first report of 11 June 2009, that it would have been preferable to further examine him.

[220]

[178] He said in respect of the video surveillance evidence that no behaviours shown in it were consistent with the plaintiff being in a lot of pain. He did not perceive him to grab part of his body such as his arms or shoulders or stretching his neck or rolling his shoulders. He agreed that the plaintiff's ability to sit and stand was not addressed particularly by the video. He believed that it provided a sample of evidence from which conclusions could be drawn and said that it was useful for independent corroboration of the plaintiff's condition. He said, like some of the other doctors, that his clinical impression of the plaintiff's underlying impairment and level of disability, which he had carefully recorded in his report dated 11 June 2009, was different from that shown on the video. He referenced in particular the ease with which the plaintiff moved and performed activities on the video, which he said was at odds with the person he examined, who he thought was profoundly disabled.

[221]

[179] He agreed that there were limitations in assessing someone's psychiatric state by relying upon video evidence. Where he had referred to the possibility of the plaintiff returning to work as the supervisor of a dredge, he conceded that if that position required heavy manual work, then the plaintiff would have difficulty. He believed that he may be able to be employed as a courier or delivery driver as people in those positions could adjust their posture regularly and were often moving in and out of vehicles.

[222]

[180] He agreed that there were limitations the plaintiff suffered from his cognitive impairments and psychiatric problems as well as his headaches but said that they were not an absolute barrier to his employment. He said that he could not undertake very heavy physical labour and that if the position of a foreman which he previously enjoyed at Currumbin Roof Trusses required regular heavy physical work, then he would not be suited to it.

[223]

[181] Dr Kevin Vandeleur was an ophthalmic surgeon who provided unchallenged evidence which confirmed the plaintiff suffered from episodic visual impairment related to migraine and possibly to the psychological effects of the injury. He assessed the plaintiff's visual field loss in the left eye at 16 per cent loss of efficiency, converting to a 4 per cent impairment of the visual system and a 4 per cent whole person impairment. Dr Vandeleur concluded that the permanent impairment of visual function would not affect the Plaintiff's work capacity at present nor in the future.

[224]

[182] Dr William Cockburn and Dr Trevor Harris were plastic surgeons whose assessments of the plaintiff's scarring were similar. Dr Cockburn assessed a total whole person impairment of 8 per cent relating to the facial scarring. Dr Harris assessed a whole person impairment of 7 per cent. Both agreed that there was some possibility of improving the scarring on the cheek with a scar revision process: Dr Cockburn suggested a cost of approximately $3,000 and Dr Harris a cost of approximately $2,700.

[225]

[183] Dr Gillett, an orthopaedic surgeon, had given an opinion about the consequences for the plaintiff of his motor vehicle accident. He said that simply from the consequences of that accident, the plaintiff would need to work in a sedentary or semi-sedentary position with no heavy lifting. He was asked about the type of supervisory work at Currumbin Roof Trusses described by Mr Monaghan as the work of the trucking supervisor. He said that if he had to carry a load he would have problems climbing stairs but it appeared likely that, in his opinion, simply as a result of the motor vehicle accident, the plaintiff would have been able to perform such work had he not been injured previously in the assault.

[226]

[184] Dr Michael O'Rourke was another surgeon who provided a report, dated 30 November 2011, addressing the internal injuries the plaintiff suffered in the motor vehicle accident, namely a chest contusion, liver injury and injury to the spleen. He confirmed that each injury was treated conservatively, initially by observation in the intensive care unit, followed by ward observation. Follow up x-rays revealed a full recovery in respect of each concern. None of these injuries, according to Dr O'Rourke, would affect the plaintiff's long-term working ability. There was no measureable impairment in respect of any of the injuries.

[227]

[185] Three witnesses who engaged in the video surveillance of the plaintiff were called, as was their manager, to establish that they did not cherry pick or edit the evidence selectively but took what was available to them. From time to time there were gaps in the coverage because of the need, for example, to change batteries in cameras or to move positions or because a vehicle or some other object might have impeded the vision of the plaintiff by the camera operator. One camera operator, Mr Robinson, did not take full advantage of the possibility of video recording the plaintiff in Bunnings Warehouse on one occasion but said that it was not worth filming because his behaviour was generic and it would have jeopardised his chances to continue filming him outside the warehouse if he had done so inside. It seemed to me that their evidence justified the conclusion that their view of the plaintiff was reasonably representative of his behaviour.

[228]

[186] My own view of that evidence was that it was not particularly inconsistent with the plaintiff's own description of the effects of his injuries on him. His evidence of what his limitations were before he was shown the video was consistent on the whole with what was shown. It did not cause me to doubt the veracity of his evidence overall.

[229]

Analysis of the evidence of the plaintiff's injuries and their effects

[230]

[187] One of the first issues was whether the plaintiff had suffered a cervical spine injury in the assault. The preponderance of the medical evidence suggests that he did.

[231]

[188] A more controversial issue was whether he suffered a brain injury resulting in cognitive deficits or a psychiatric disorder or both. The conclusion from the evidence that seems most likely on my survey is that the plaintiff suffered a psychiatric disorder and that he has not established on the balance of probabilities that he also suffered an organic injury to the brain, or at least not one that resulted in permanent neurological impairment. That appears to have been the view of Drs Coyne and Byth and Professor Whiteford. Dr Ewing believed that both an organic and a psychiatric injury may have occurred. Dr Field took the view that the injury was psychiatric. It may be that if his psychiatric condition is brought under control it will become possible to determine whether any organic conditions affect him, but that conclusion seems unlikely.

[232]

[189] What is not in doubt is that his psychiatric condition is serious. The degree of that seriousness is, however, in issue as are the factors contributing to it. My overall conclusion is that Dr Byth's assessment of these issues is to be preferred. His view by the time of the trial was that the severity of the plaintiff's anxiety and depression had worsened to be marked. He assessed it as a 47 per cent whole person impairment.

[233]

[190] In his report of 1 August 2011, Professor Whiteford concluded that the plaintiff demonstrated ongoing depression with suicidal ideation; recorded that the plaintiff and his wife both provided a history that his depression became worse after a motor vehicle accident in October 2010, noted additional stressors including the death of the plaintiff's father in law and ultimately considered that the major depressive disorder had been maintained, in part, by significant further stressors. In his report dated 31 May 2012 and again in his oral evidence he said that the behaviour demonstrated on the surveillance footage caused him to form the opinion that the plaintiff does not have any psychiatric impairment arising from a mental disorder. I have difficulty in accepting that he could arrive at such a view without re-examining the plaintiff and given the limitations in the ability to interpret such evidence accurately.

[234]

[191] I prefer Dr Byth's views for a number of reasons. He had recently re-examined the plaintiff, unlike Professor Whiteford. I share his view that the surveillance footage was not particularly significant in assessing the effect of his injuries from the attack on the plaintiff. I also believed both the plaintiff and the other lay witnesses' evidence about the effects of the attack on him at the time and since. His wife, other family members and former employers gave persuasive evidence about the change in his personality and it seems more than likely to me that those problems led to his marital and other problems. It also seems probable to me that his marital problems were connected to the consequences of the attack. No doubt the motor vehicle accident added to his stresses, as did the problems with his wife's health, but it seems more likely to me that the assault was the serious contributor to his psychiatric problems.

[235]

[192] His former employers also testified strongly about the effects on him of the attack and one of the more significant points in his favour was that he was someone intent on trying to get back to work. He had a very good work history before the attack and was not, in my assessment of him, someone trying to game the system or exaggerate the consequences of his injuries. He is someone who has suffered grievously at the hands of Anthony Cerantonio.

[236]

[193] When one couples his psychiatric disability with the consequences of the physical injuries he suffered it seems to me that I would be justified in assessing his overall disability stemming from the attack as very serious. It seems to me that his psychiatric disability provides the major component of his disability because of the doubt over whether he suffered an organic brain injury. Other injuries to his neck and face also need to be taken into account.

[237]

[194] It is also likely to me that the neck injury he suffered has been more significant than his subsequent back injury from the motor vehicle accident. That was Dr Campbell's conclusion and it seems clear to me that his earning capacity had been substantially destroyed by the assault before the accident. He had been away from work for almost four years after making a determined attempt to return. Dr Campbell assessed the plaintiff on 17 September 2010, just two weeks before the motor vehicle accident, and then doubted that he would work in the future due to his multiple injuries. He continues to suffer from problems related to his neck injury, including chronic pain, quite apart from his psychiatric problems.

[238]

[195] It is clear that his back injury from the motor vehicle accident also continues to cause him problems which would affect his earning capacity. As in Nilon v Bezzina[16], this is a case where the motor vehicle accident added to the injury caused by the assault. It did not prevent the harm caused by the assault from continuing to affect the earning capacity, pain and suffering and the loss of amenities already sustained by the plaintiff. The submissions for the plaintiff, with which I agree, were that the additional injuries should be viewed as causing a negative impact upon whatever opportunity the plaintiff had of returning to some form of work which was left to him after the assault. In essence, the injuries were a contingency which has acutally happened, as was described in Faulkner v Keffalinos [17] The bulk of the damage had been done, however, before the motor vehicle accident.

[239]

[196] Mrs Coles' assessment of his employability stemming from the assault was that, even though he could hypothetically perform some tasks of a work related nature, the practical reality was that he would be unlikely to obtain and thereafter maintain himself in any realistically remunerative endeavour. She was not significantly dissuaded from that view by the video footage, unlike Dr Burke. For reasons I have expressed in preferring Dr Byth's evidence on this point, I prefer Mrs Coles' assessment of the evidence.

[240]

[197] On that approach the plaintiff submitted that a reasonable way to factor in the motor vehicle-based injuries was to allow a discount for contingencies, in respect of past economic loss, of 20 per cent to commence following the intervention of the motor vehicle accident on 1 October 2010 and a discount of 35 per cent in respect of future economic loss. That seems to me to be a reasonable approach to adopt to reflect the normal contingencies of life and the likelihood that some other injury would have affected his earning capacity. His previous back injuries did not appear to have been so serious as to have made it likely that he would have to cease work, particularly taking into account the support that the management at Currumbin Roof Trusses provided to its employees generally and to him in particular. It was likely that he would have been able to continue, for example, in the position supervising trucks mentioned by Mr Monaghan if the previous back injuries had affected him more seriously.

[241]

[198] Under the Civil Liability Act 2003 (Qld) and the Civil Liability Regulation 2003 (Qld) the plaintiff's argument was that the dominant injury was the one with the highest potential injury scale value ("ISV") rating; that in this case the psychiatric injury was dominant and fell to be assessed within Item 10 to Schedule 4 of the Civil Liability Regulation, which had a range of ISVs between 41 to 65. Examples of the injury are given as a mental disorder with a PIRS - psychiatric impairment rating scale - rating between 31 per cent and 100 per cent. On the basis of the assessment by Dr Byth at 47 per cent, it was submitted that an initial ISV of 50 was appropriate. The plaintiff then submitted that an increase should occur, as provided for by cl 3(2) of Schedule 3 of the Civil Liability Regulation, to reflect the adverse impact of the multiple injuries sustained. In this case, an increase to an ISV of 60 was said to be reasonable, resulting in a general damages assessment of $121,400.00.

[242]

[199] My preference for Dr Byth's evidence leads to the conclusion that I accept his assessment of the degree of disability the plaintiff was suffering. Mr Atkinson submitted, however, that Dr Byth's assessment of the PIRS rating should be converted by reference to Item 7 of Schedule 5 of the Civil Liability Regulation to arrive at a result of a maximum whole person impairment of 22 per cent which was less than the 25 per cent whole person impairment attributable to the plaintiff's cervical spine injury as noted by Dr Campbell and Dr Coyne, so that the latter injury should be treated as the dominant injury, leading to an assessment of general damages in the range of $35,000 to $45,000.

[243]

[200] The plaintiff's response to that argument was that Dr Byth's opinion was consistent with the psychiatric condition being the more serious injury and that, even if the cervical spine injury were the dominant injury, the defendant's approach would be erroneous. His counsel's written submissions went on to argue that by cl 2 of Schedule 3 of the Civil Liability Regulation the Court is required to consider the range of ISVs in Schedule 4 for the injury. Where there were multiple injuries, by cl 2, the Court must consider the range of ISVs for the dominant injury. In the case of multiple injuries, the Court may assess the ISV in the higher range of ISVs for the dominant injuries than it would if there was the dominant injury only.

[244]

[201] By cl 4(2) where the Court considers that the adverse impact of multiple injuries is so severe that the maximum dominant ISV is inadequate, it may make an assessment of the ISV for the multiple injuries that is higher than the maximum dominant ISV, but cl 4(3)(b) provides that it should rarely be more than 25 per cent higher than the maximum dominant ISV. Clause 4(4) goes on to provide that if the increase is more than 25 per cent of the maximum dominant ISV, the court must give detailed written reasons for the increase.

[245]

[202] PIRS ratings for mental disorders are referred to in cl 6 of Schedule 3. Other matters concerning the assessment of the ISV are set out in clauses 8, 9, 10, 11, 12 and 13. Finally, by clause 14, an ISV assessed must be a whole number.

[246]

[203] For cervical spine injuries, Part 6 Division 1 of Schedule 4 applies and there are some introductory comments for items 85 to 89 set out there. Because of the surgery that has been performed, the submission was that the plaintiff fell within item 86, which was described in the example of injury as "loss of motion in a motion segment because of a surgical or post traumatic fusion". Item 86 sets out an ISV range of 16 to 40.

[247]

[204] The submission went on that the guide says that where there is a whole person impairment for the injury of more than 25 per cent, an ISV at or near the top of the range will be appropriate. The assessment of permanent impairment for the plaintiff following the surgery entered into that territory. His injury was then also to be assessed for the effects of the multiple injuries, including the psychiatric injury, which even on the defendant's analysis contained some significant features. The scarring and facial injuries also needed to be taken into account.

[248]

[205] Given the ISV range of 16 to 40, an increase would be required. The plaintiff's submission was that an increase of 50 per cent would be warranted given the significant multiple injuries and the impact upon the plaintiff's life, and his relative youth at the time of the injury. That would also warrant an award under s 62 of the Civil Liability Act of $121,400.00. That approach also seems to be persuasive to me and I assess the general damages at $121,400.00.

[249]

[206] The plaintiff's good employment history before the assault provided a substantial record of his previous earning capacity. His counsel argued that I should extrapolate his historical earnings by compounding them by 5 per cent per annum which the defendant argued was inappropriate because of the plaintiff's history of lower back problems and the evidence that the global financial crisis had affected the amount of work in the building industry. A comparable employee had, however, been paid at a rate comparable to that achieved by extrapolating the plaintiff's previous earnings.

[250]

[207] The plaintiff's submission was that by the end of the financial year ended 30 June 2010, he would have been earning $1,300 gross or $1,025 net per week. Based upon the table of notional net earnings set forth in the Statement of Loss and Damage, but capping his income to allow for the effects of the global financial crisis, the plaintiff's notional net earnings from 1 July 2006 to 1 October 2010 would have been $221,898. The plaintiff's notional net earnings since 1 October 2010 adjusted to include the time since the submissions were filed (153 weeks at $1,025.00 net per week) would have been $156,825.00. A discount of 20 per cent in respect of the period after 1 October 2010, based on the potential effect of the motor vehicle accident, reduces the figure to $125,460.00. The total notional net earnings on that approach became $347,358.00.

[251]

[208] I accept the submission that the plaintiff has not been in a position to find work beyond his brief attempt to return to Currumbin Roof Trusses. He has received assistance through agencies connected with Centrelink to assist him to retrain, to no avail. He commenced a literacy course though TAFE in 2007 but could not complete it because of migraines, blurred vision and significant depression. He remains on a disability support pension.

[252]

[209] The income he actually received was $20,325 net from the Currumbin Roof Trusses work which pre-dated the assault which must be brought to account because of the fact the notional income calculated also commences from the start of the 2007 financial year. The net earnings from the attempted return to work at Currumbin Roof Trusses were in the sum of $639.00. Deduction of these sums from the net notional income, adjusted and discounted to reflect the intervention of the motor vehicle accident, results in a calculation of past economic loss of $326,394.00

[253]

[210] Interest is calculable at 1.92 per cent per annum on $326,394.00 (the sum for past economic loss) less benefits received from Centrelink since the assault in the estimated sum of $40,000, over 6.75 years, which equates to $37,117.00.

[254]

[211] Past loss of superannuation contributions is calculated at the rate of 9 per cent of the sum claimed for past economic loss, equating to $29,375.00.

[255]

[212] Those figures seem to me to represent a proper calculation of the plaintiff's past economic loss.

[256]

[213] The plaintiff is now 36. His counsel argued that I should calculate his future loss on the basis that he would have worked until his mid 60s but that seems unlikely to me given the hard physical nature of his work and his lack of academic skills to provide him with some alternative avenue of work. I would not expect him to have worked for more than another 24 years. Approaching this part of the assessment otherwise on the approach advocated for the plaintiff I would assess his future loss based on a net loss of earning capacity of $1,025.00 per week for 24 years discounted using the 5 per cent tables (using a multiplier of 737.8) and then discounting by 35 per cent for contingencies to produce the figure of $491,559.25 which I shall round down to $490,000.00.

[257]

[214] Future loss of superannuation on that sum at 9 per cent is $44,100.00.

[258]

[215] The plaintiff's claim under this head of damages relied essentially on Mrs Coles' evidence which I have accepted. The plaintiff has received a significant amount of care from members of his family which his counsel conceded may have exceeded what he actually needed by reference to s 59 of the Civil Liability Act.[18] Consequently they calculated the claim by reference to Mrs Coles' assessment of his likely needs totalling 5,165 hours which I have adjusted to 5,270 hours taking into account the time since the evidence was heard. At the parties' agreed commercial rate of $25.00 per hour that becomes $131,750.00 to which interest at 1.92 per cent per annum for 6.75 years should be added, amounting to $17,075.00.

[259]

[216] The defendant attacked this basis of assessment by attacking Mrs Coles' assessment of his need for care based partly on some of the other witnesses' reaction to the video evidence which does not square with my assessment of that evidence and of the plaintiff's capacity based on his and other witnesses' evidence. Mr Atkinson also entered into a detailed analysis of the evidence of the plaintiff's apparent needs at different times based on what was being provided to him by his family and criticising the amount of care provided, for example, by his wife. In the circumstances I prefer to use the evidence from Mrs Coles as providing a measure of need referable to objective criteria.

[260]

[217] The claim for future care was premised upon a current and continuing need for care at no less than 6 hours per week at $25.00 per hour, discounted at 5 per cent per annum over 50 years (using a multiplier of 976) and by a further 35 per cent for contingencies, resulting in a figure of approximately $114,000. It was argued that this claim was particularly conservative, having regard to the fact that Mrs Coles' opinion suggests that the plaintiff requires approximately 15 hours of care per week at the current time. It seems to me to be a reasonable basis for assessing his damages for future care.

[261]

[218] The Plaintiff advanced a claim for special damages, supported by the information contained in Annexures "A", "B", "C" to the Statement of Loss and Damage, as follows:**

[262]

(a) Out of pocket expenses: $4,795.43

(b) Travelling expenses: $9,848.30

(c) Treatment expenses: $25,621.05

[263]

**[219] The defendant made detailed submissions that only $31,823.19 of these damages should be recoverable but did not cross-examine the plaintiff or other witnesses on all the reasons why Mr Atkinson now says those reductions should be made. Some of the complaints related to dental and chiropractic treatment said not to relate to the assault, but there is evidence that the treatment claimed was because of the assault. The plaintiff made some minor concessions as a result of these criticisms reducing the amount claimed to $39,369.84 which seems to me to be appropriate on the evidence.

[264]

[220] Interest is claimed at the rate of 1.92% per annum on $39,369.84 over 6.75 years which equates to $5,102.33.

[265]

[221] Additionally, the Plaintiff claims the following refunds:**

[266]

**[222] The defendant argued that there was no evidence supporting those claims for refunds but the provision of invoices by the Gold Coast Hospital in the amount claimed was admitted on the pleadings coupled with a non-admission that the amounts all related to the treatment for the assault. The amount now claimed for the Department of Education, Employment and Workplace Relations charge was admitted on the pleadings. There was no cross-examination to the effect that the Gold Coast Hospital's charges did not relate to the plaintiff's injuries and no evidence that they did not. I shall allow that claim.

[267]

[223] The criticism of the Medicare Australia charge was that it should have been for $2,346.10. That was accepted for the plaintiff. Accordingly the amount that should be allowed for the refunds is $ 13,026.45.

[268]

[224] The total amount for the special damages is therefore $52,396.29.

[269]

[225] The plaintiff's claim for future expenses totalling $30,295.00 was for psychiatric care totalling $9,000.00; future plastic surgery expenses of $2,700.00; future medication costs of $16,595.00 for analgesics and future medical attendances and travel of $2,000.00

[270]

[226] The defendant argued that only part of those expenses was referable to the treatment he needed because of the assault and that it had not been shown that he intended to undergo further plastic surgery. The plaintiff submitted that Professor Whiteford conceded that, once one removed, for example, the breakdown of the marriage from the list of external stressors, it became more difficult to conclude that the balance of non-related stressors, including the motor vehicle accident, would cause major depression absent the assault.

[271]

[227] Professor Whiteford, counsel submitted, also agreed with the proposition that once a person has major depression, they are vulnerable to further episodes and the condition waxes and wanes such that the capacity to deal with life events is reduced. They noted that the plaintiff, himself, actually gave evidence that his depression was probably at its worst just before the motor vehicle accident and had again been quite severe in the months prior to the trial. Those submissions support my view that it is not appropriate to reduce the allowance claimed for future psychiatric treatment. It seems to me that his need for future psychiatric care is referable to the assault.

[272]

[228] The defendant's reliance on Dr Lynham's view about the need for plastic surgery was contrary to the opinions expressed by the plastic surgeons who provided evidence, Dr Harris and Dr Cockburn. The plaintiff submitted that they should be preferred and that I should infer that the plaintiff would accept their recommendations given that when the Plaintiff has been offered treatment, including surgery, and he could pay for it, he has had it.

[273]

[229] Those submissions seem reasonable to me and I shall allow the costs of these future expenses in the amounts claimed totalling $30, 295.00.

[274]

[230] The result is that my assessment of damages is as follows:**

[275]

Interest on special damages (not including refunds)

[276]

[231] I shall give judgment then for the plaintiff in the rounded down sum of $1,399,000.00. I shall hear the parties as to costs.**

[277]

[1] See para 139 of the plaintiff's written submissions.

[278]

[2] The Laws of Australia, TLA [33.6.650] online edition (footnotes omitted).

[279]

[3] Deatons v Flew [1949] HCA 60; (1949) 79 CLR 370, 381.

[280]

[4] New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511, 591-592 at [231] (citations omitted).

[281]

[5] Ryan v Ann Street Holdings Pty Ltd [2006] 2 Qd R 486; [2006] QCA 217.

[282]

[6] Ryan v Ann Street Holdings Pty Ltd [2006] QCA 217; [2006] 2 Qd R 486, 490-491; [2006] QCA 217 at [18], [20]. Fryberg J agreed generally with Williams JA's reasons; 498, [43]. Another discussion can be found in Orcher v Bowcliff Pty Ltd [2012] NSWSC 1088 at [187]- [200] referring, in particular, at [200] to the decision of the New South Wales Court of Appeal in Sprod bnf v Public Relations Oriented Security Pty Ltd (2007) Aust Torts Reports 81-921 [2007] NSWCA 319 at [80]- [81].

[283]

[8] Cf, e.g., Poland v John Parr & Sons [1927] 1 KB 236, 240, 243, 244-245.

[284]

[9] See para 35 of the plaintiff's written submissions in reply.

[285]

[10] Unlike the situation in Blake v J R Perry Nominees Pty Ltd [2012] VSCA 122.

[286]

[11] See para 17 of the Second Further Amended Statement of Claim and para 51 of the Reply.

[287]

[12] Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, 487.

[288]

[13] See, e.g., Pollard v Trude [2008] QSC 119 at [39] and Meandarra Aerial Spraying Pty Ltd v GEJ Geldard Pty Ltd [2012] QCA 315; [2013] 1 Qd R 319, 333 at [26].

[289]

[14] See Horkin v North Melbourne Football Club Social Club [1983] VicRp 12; [1983] 1 VR 153; Fontin v Katopodis [1962] HCA 63; (1962) 108 CLR 177 at 184 per McTiernan J; Sinclair v Caloundra Sub-Branch RSL Services Club Inc [2001] QDC 196 per McGill QC DCJ at [94].

[290]

[16] Nilon v Bezzina [1988] 2 Qd R 420, 428.

[291]

[17] Faulkner v Keffalinos (1971) 45 ALJR 80, 85.

[292]

[18] See also Shaw v Menzies [2011] QCA 197 at [77].

At a glance

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Cases Cited (5)