The assault
9The plaintiff travelled to Forbes with his wife, his father and his three children. The boxing competition was at the local 'RSL'. The fight finished at about 10.30pm. The plaintiff took the children back to the motel where they were staying and they remained with the plaintiff's father.
10The plaintiff and his wife then joined a number of friends and went to the Vandenberg Hotel. The friends, mostly team mates, included Mr Ashley Hall, Mr Wayne Borg, Mr Jason Stephenson, Mr Scott Dunn and Mr Scott White. The group arrived at the hotel at about midnight and went to the bar. The plaintiff had not consumed alcohol earlier in the evening.
11After a short period the plaintiff heard shouting and loud noise. He looked over to the other end of the bar and saw a fight in progress. One of the participants was "a big dude" . Other people, including bar staff, tried to get the participants to "settle down" . The plaintiff noticed the big man stayed in the same place and continued drinking. The plaintiff said he had not seen the big man before. I will refer to this event as the 'first fight'.
12It was put to the plaintiff, in terms, that the first fight had not occurred at all. He disagreed. The same proposition was put to each witness that gave evidence of this fight. Each witness rejected the suggestion.
13A little later the plaintiff, and the group, moved to the other side of the bar where there was a band. He began dancing with his wife and consumed another schooner of beer.
14The plaintiff went to the toilet. He was at the urinal talking to a colleague, Mr Wayne Flitter. The plaintiff was wearing a Windsor Boxing Club shirt. He heard a man say: " - " Here's the boxer. Oh, here we've got the big time hero boxer". He replied: "What are you, mate? A hero yourself." He felt that the body language of the other person was aggressive. He said he did not want any trouble. He "zipped up" and the next thing he found was that he was on the ground. He had been knocked unconscious, albeit very briefly. Although other people were trying to restrain the assailant he was still kicking the plaintiff in his leg and ribs. As the plaintiff was escorted from the toilet the aggressor hit him once more.
15The plaintiff was covered in blood but did not require stitches. He went back to the motel where he " cleaned himself up" . The plaintiff knew his leg was not actually broken but the pain was such that he thought it might have been.
16The plaintiff said that although he had not paid particular attention to the assailant's features he was of the view that it was the " big dude " who had participated in the first fight. The defendants conceded that the plaintiff was assaulted by Mr Shelker. If I accept the plaintiff's evidence (and that of a number of other witnesses) about the first fight (that it occurred and who participated), then it follows that Mr Shelker was involved in the first fight.
17The defendants tendered a statement made by the plaintiff to the police (Exhibit 6). It was not signed but the plaintiff accepted it was his statement. Although the statement is broadly in accord with the plaintiff's evidence the defendants highlighted two notable differences. Firstly there is no mention of the first fight and secondly the sentence: "I didn't recognise this guy and I don't remember ever seeing him before." (Paragraph 4)
18I agree that the absence of the first fight is an inconsistency although I think the interpretation of " before " may be a little strict. It could equally apply to the period before the plaintiff came to the hotel. As will be seen I found the plaintiff to be an honest witness. In addition he had considerable support from other witnesses. Accordingly I do not think Exhibit 6 imperils the plaintiff's version.
19Mr Jason Stephenson, an electrician, gave evidence about the events of the night. Despite saying " you wouldn't really call me a boxer " he gave his evidence with the confidence and bravado often associated with professional pugilists. He seems to have been in the plaintiff's support team. He was not participating in the competition.
20Mr Stephenson described standing at the bar and then hearing the fight "on the other side of the bar" . The identification of where of his group and the other group were located is different to that described by the plaintiff (Exhibits D and 2 respectively).
21Mr Stephenson described one of the participants in the fight as tattooed, very aggressive, slurring his words and incoherent. He said that he was drunk and aggressive toward the hotel staff that tried to break up the fight. The "bouncers" were successful and the fight was stopped. However, the tattooed man remained in the same area and continued making a lot of noise until the music started. Mr Stephenson was not sure if the music came from a " DJ " or a band.
22Some time later Mr Stephenson said he became aware of something happening to Jason in the toilet. He went to the scene and found the same tattooed man being restrained by two of his friends. Once again he described him as aggressive, drunk, slurring his speech and incoherent. In addition he could smell alcohol about him.
23A number of people came into the toilet and the bouncers tried to separate the various camps.
24Mr Stephenson said that while in the toilet he said to the tattooed man: "Why would you do that?" One of the big man's friends responded "Just let it go" .
25Mr Stephenson said he had never made a statement in relation to the incident. The plaintiff's solicitors had approached him within about a year of the event to discuss it with him. He said he had never spoken to any of the other group, or the plaintiff, about what had happened. He said he had a good memory, although after some confusion he accepted that his memory would have been fresher closer to the event.
26Mr Stephenson was a less impressive witness than the plaintiff but nevertheless his depiction of a fight occurring in the bar was convincing. Mr Stephenson was perhaps a little too sure of himself and the capacity of his memory. Nevertheless, in particular because of the general similarities with the plaintiff's and other evidence, I accept the first fight did occur and that the tattooed man had behaved in an aggressive fashion.
27The next witness called by the plaintiff was Mr Wayne Borg. He is a butcher working for Woolworths. He has known the plaintiff for a number of years both as his trainer and boxing partner.
28Mr Borg was a competitor at Forbes. He fought before the plaintiff and was also successful. After his fight he joined the spectators to watch the remainder of the card.
29Mr Borg said that he noticed a VIP section that was made up of a number of tables on a stage. He thought the people at these tables were local supporters because of the apparent recipients of their support. Mr Borg noticed amongst these people a man who was bigger than the rest. He was decorated with tattoos and he was "loud and rowdy" . He was often standing, yelling and stumbling.
30At the end of the competition Mr Borg joined his team in going to the hotel. He was asked for his ID at the door. He was "up for the first shout" so he went to the bar and waited to order drinks. While waiting Mr Borg said a fight broke out near him, close enough for him to see it clearly. He recognised one of the participants as the tattooed man from the VIP section. He said that hotel staff broke up the fight but the tattooed man, and perhaps others, continued being noisy.
31Mr Borg said he returned to his group and distributed the drinks. Later he was dancing.
32Mr Borg said that he next saw the tattooed man in the doorway of the toilets. He had run there in answer to a call that the plaintiff had been hit and was bleeding. He found the plaintiff covered in blood, and dazed. Other people were holding the tattooed man back, although he was still trying to attack the plaintiff.
33Mr Borg said he was very upset and angry about what he had seen and spoke to the doorman. He said to him: " This shouldn't have happened. He was in a fight earlier and he was causing trouble all night and he should've been thrown out earlier" . There was no response to Mr Borg's complaint. To the contrary he said the doorman simply "smirked" . Unfortunately this allegation was not put to the person who was probably the doorman when he gave evidence (Mr Alan Clifton). Of necessity, I will disregard the comment.
34A little later, outside the hotel, Mr Borg heard the tattooed man boasting about his exploits. Mr Borg approached him and said something to him. In return he received a punch and a bite on his back after he had fallen to the ground.
35In relation to the plaintiff's current condition Mr Borg said that the plaintiff could no longer run with him and could only do some "pad work" .
36Under cross-examination Mr Borg accepted that his memory was better closer to the event and that it was a struggle to remember the detail. He was asked a number of question about who he had spoken to and when about the events. He freely conceded that he had spoken to others, noting that the event was significant. This line of questioning was put to most of the plaintiff's witnesses but the questions did not go so far as to suggest any collusion, conspiracy or dishonesty in plain terms.
37The closest the defendants came to suggesting dishonesty was to put to the respective witnesses that the incident in the hotel involving the tattooed man had not occurred. This suggestion was obviously one of dishonesty yet it was not put in those plain terms. I do not criticise counsel for the defendants for his approach but one must bear in mind that if dishonesty is to be suggested it must be done in stark terms.
38Returning to Mr Borg's evidence, he said that the fight in the hotel did not last for very long. He did not think it lasted for five minutes, as had been suggested by Mr Stephenson. I note here that Mr Stephenson was clearly incorrect in his estimate. Mr Borg said that he could not recall the layout of the hotel and was not assisted by a diagram.
39The next witness was Mr Ashley Hall. Like Mr Borg he was an impressive witness. He gave his evidence simply, he answered questions directly and he made concessions where appropriate.
40Mr Hall has also been a boxer for some time. He unfortunately was not successful in his fight at Forbes so that he returned to the change room somewhat disappointed and remained there for about half an hour. He then went into the hall but did not notice any particularly untoward behaviour amongst the spectators.
41He said that there were lots of people who were yelling and screaming.
42Mr Hall joined his friends at the hotel. Soon after arriving he noticed a fight or scuffle had broken out. There were " two blokes" throwing punches. The fight did not last long. It was about 10 metres away from him. He noticed that one of the participants was a big man with tattoos. Some time later Mr Wayne Flitter called out that the plaintiff was being bashed so he, and others, ran to the toilet area. He found the same tattooed man being restrained but still trying to attack the plaintiff. The plaintiff was dazed. His assailant was dragged out the back door of the hotel.
43Under cross-examination Mr Hall was shown a statement he had signed in July 2009. He accepted it was his statement. The document was not tendered.
44Mr Hall said that there was no trouble in the hotel between the fights. Mr Hall was asked to indicate various matters on a sketch plan (Exhibit 3). He said that his points of location were subject to a margin of error of some metres. On this basis his plan is consistent with that of the plaintiff's in relation to where the group was standing and where the other scuffle took place.
45The next witness was Mr Wayne Flitter. He was only located on the day before his evidence and has not been in touch with the group for some time.
46He has been a boxer for 30 years. He knows the plaintiff well and trained with him. He also competed in Forbes for the NSW Light Heavy Weight title. He was successful.
47He was part of the group at the hotel.
48Mr Flitter said that shortly after arriving at the hotel he noticed "a couple of big lads hooking into it just across the bar" . He said the fight was long for a pub brawl, it perhaps lasted as much as 30 seconds. Mr Flitter's evidence I think emphasises the degree to which Mr Stephenson's five minutes could not have been correct. The fight was broken up by security staff.
49A little later Mr Flitter said he was in the toilet with the plaintiff. There was no one else there. Three men entered; one remained at the door, another was in the middle and the third approached the two men at the urinal. This third man, the man with the tattoos, addressed the plaintiff using words roughly consistent with those described by the plaintiff. The plaintiff responded that they did not want any trouble.
50Mr Flitter then described a king hit on the plaintiff that threw him to the ground. There were then other punches thrown including at Mr Flitter.
51Mr Flitter said that he had seen a doorman when he walked in. He accepted there had been no trouble between the two fights. He denied that he had made up his evidence about the first fight.
52Mr Scott White was another impressive witness called on behalf of the plaintiff. Although he has been a boxer he did not attend the Forbes RSL to compete. He was a spectator.
53He said that he noticed a large person at the tables at the RSL venue. He was noticeable for the tattoos on his arms and neck and for his loud and rowdy conduct. He was drinking alcohol.
54Mr White went to the Vandenberg Hotel but separated from the main group. He said he stayed on the left side of the room near the band. He was talking to another person (from outside the group). He did not see the altercation involving the tattooed man shortly after the group arrived. He did, however, see this person later in connection with the assault on the plaintiff. He saw that the assailant was being restrained and he was yelling.
55Under cross-examination Mr White repeated that he did not see the first fight. He said he did not notice any trouble "on the side I was" . This qualification, which was produced by cross-examination is important. Bearing in mind the evidence of the other witnesses, other than Mr Stephenson, it is feasible that the first fight occurred without being noticed by Mr White, in particular if he was on the other side of the bar. This feasibility became more probable when Exhibit 10 was tendered. Unlike the sketches the photograph shows there is a dividing wall between the bars. I do not consider his evidence as inconsistent with the occurrence of the fight; rather I simply treat Mr White as a person who did not see the first fight.
56Mrs Kerry Lewis, the plaintiff's wife, gave evidence. She too was impressive. Mrs Lewis said that she went to the Vandenberg Hotel. Her memory, which she said was good and had not diminished over the years, included her husband, perhaps accompanied by Mr Borg, going to the bar to get her first drink. After he returned she said she noticed a fight at the far corner of the bar. Her diagram (Exhibit 4) is I think generally consistent with the bulk of the diagrams that were tendered (but specifically not including that marked by Mr Stephenson).
57Mrs Lewis noticed the tattooed man was one of the participants in the fight. She had, in fact, seen him earlier at the RSL Club sitting near the bar.
58Mrs Lewis did not pay particular attention to the first fight in the hotel and could not say how it had ended.
59Later in the evening, perhaps after about an hour, Mrs Lewis heard Mr Flitter yelling out that "Jason's been king hit" . She rushed to the toilet area to help. The plaintiff was brought out and she left with him. Before leaving she spoke to the doorman and said to him: "Look what he's done to my husband" . She did not recall any response. This conversation was also not put to Mr Clifton.
60Neither the plaintiff nor any of his witnesses were challenged on the events that occurred in the toilet. There was no dispute that Mr Shelker had assaulted him. There was no dispute that Mr Shelker is a large man with many tattoos.
61At the commencement of the defendants' case their learned counsel informed me that material that had recently come to his notice indicating there had in fact been a first fight, although not necessarily involving Mr Shelker. Counsel said that he withdrew any proposition put to the plaintiff and his witnesses to the extent that it was suggested that there had not been any earlier incident. Plaintiff's counsel said he did not require the witnesses to be recalled to have the corrected position put to them.
62The defendants called Mr Alan Clifton to give oral evidence. He is the first defendant. In 2005 he was the licensee of the hotel and a part owner. He held a security licence. A "masters licence" was held by a Ms Charlene Usher. This licence enables external security to be engaged by the hotel.
63In relation to security, as I understood Mr Clifton, he would normally be the only designated security officer present at the hotel. If he anticipated a particularly busy evening or some other relevant event, he would hire extra security. Mr Clifton said that he was solely in charge of security. No independent risk assessment had ever been conducted.
64On the night of 27 August 2005, a Saturday, no extra security staff were present. The staff on this night included himself, generally acting as a doorman, three bar staff (Ms Lilla Reidy, Mr P J Reid and Ms Kate McNair) and a " glassy " (Mr Elliot Kinsella) who collected glasses and generally patrolled the remainder of the hotel. Mr Kinsella had no security role. He would report any incidents to Mr Clifton.
65Mr Clifton said that the policy of the hotel was that people who engaged in fighting were immediately ejected. This is reflected in signs both inside and outside the hotel (for example, see Exhibit 8).
66On 27 August 2005 Mr Clifton recalled Mr Shelker, who he described as a large man with tattoos, enter the hotel. It was not suggested to him that Mr Shelker was then intoxicated.
67Mr Clifton said that at about midnight two police officers were doing "a walk through" when they came across an incident involving two men. They ejected the perpetrators. Mr Clifton did not see the incident but was told about it by the officers and also by Mr Kinsella. He made an entry in an incident book (Exhibit 9). The entry would only have been made some time after the incident and, notably, at the same time as he recorded the incident involving the plaintiff.
68Exhibit 9 reveals that the two persons involved were barred. The name of one of them is recorded but not the other. Mr Clifton said this was because the second person's name was not known. Both persons were barred for six months.
69I understood the barring policy was as follows. Any person ejected was automatically barred for 24 hours. It was then at the discretion of the hotel whether any extended period would be applied. It is difficult to understand how the unnamed person was barred. In relation to the named person Mr Clifton said that Forbes was a small town and he would have found out about the barring through the local grapevine.
70Mr Clifton said that had Mr Shelker been involved in the earlier incident he would have been immediately barred. The blank left for the name of the second person in the earlier incident, bearing in mind that both incidents were recorded at the same time, raises a degree of suspicion. If Mr Shelker was involved in the earlier incident there was some incentive, following the later more serious incident, for Mr Shelker's name to have been omitted. That scenario was not, however, put to Mr Clifton so that I do not think I could translate the suspicion into a finding. It was also not put to Mr Clifton that he could not exclude Mr Shelker as having been involved in the first incident. I note that Mr Shelker would have been in the hotel when the first fight occurred.
71It seems to me that the appropriate way to approach Mr Clifton's evidence is to accept that he did not see Mr Shelker being involved in the first fight but that his involvement could not be excluded. This resolution is consistent with my acceptance of the plaintiff's witnesses who positively identified Mr Shelker as being involved in the first fight.
72In respect of the second fight, Mr Clifton said he was alerted to it by Mr Kinsella. He went to the toilet area. Mr Shelker was sent out the back door and the plaintiff was sent to the front. Mr Clifton recalled wiping some blood off the plaintiff. He thought he might also have offered to call the police and an ambulance.
73Mr Shelker was barred for 12 months. After this period he returned to the hotel and was involved in another incident. On 9 September 2006 he once again punched another patron " for no reason. " (Exhibit 9). He has been barred for life. No bar was placed on the plaintiff.
74Mr Clifton was the only witness called by the defendants. Learned counsel for the defendants had foreshadowed 3 witnesses:
"MORGAN: Yes, your Honour. I'll be calling the proprietor, licensee and bouncer. He's all of those things and the lady who we believe was serving alcohol very close to this location and the bar useful, who was collecting glasses in the area and they will all put squarely in issue whether this event ever occurred." (T 102.6)
75I assume the change of tactics was caused by the matter I referred to in paragraph 61, above. I think I can comfortably draw an inference that the other witnesses whose evidence was contemplated would not have assisted the defendants' case. It is to be recalled that Mr Kinsella, a foreshadowed witness, would have been present when the first fight occurred.
76On the basis of the evidence led in respect of liability I am satisfied of the following:
(a)Mr Shelker was present at the RSL and watched the fights.
(b)Mr Shelker went to the hotel and was present when the plaintiff arrived or from shortly thereafter.
(c)Although Mr Shelker had consumed alcohol at the RSL the evidence does not establish that he was in a state to justify the hotel not admitting him or refusing to serve him alcohol.
(d)A fight broke out in the hotel shortly after the plaintiff and his group arrived.
(e)Mr Shelker was a participant in the fight, which included an exchange of punches.
(f)The fight was broken up by persons including hotel staff. Mr Shelker was permitted to remain in the hotel.
(g)Although Mr Shelker may have continued to be loud, perhaps even yelling, he did not otherwise misbehave over about the next hour.
(h)Mr Shelker attacked the plaintiff in the toilet. The attack included a " king hit " to the head followed by kicks to the chest and right leg of the plaintiff.
(i)The attack was not caused by anything done or said by the plaintiff. It was entirely unprovoked.
77At the commencement of the hearing the defendants sought leave to file an Amended Defence. No objection was taken and leave was granted.
78Paragraph 12 of this document relies on Section 54 of the CLA suggesting that the plaintiff had been involved in some criminal activity. No questions were asked of the plaintiff suggesting any such involvement. For this reason I enquired if the allegation was pressed. I was informed that paragraph 12 was not relied upon.