TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)

Judgment Number: [2005] TASSC 52

1 On 1 December 1996, the appellant was a patron at a nightclub operated by the respondents when she was assaulted by a man, Grant Jackson. She sued the respondents for damages for negligence, claiming that they failed to take reasonable care for her safety.

2 A trial without a jury was conducted and on 6 September 2004, the trial judge published reasons for judgment in which the respondents were held liable to the appellant. However, her damages were reduced by 60 percent for contributory negligence on her part. Damages were assessed at $96,014 and accordingly, judgment was entered for the appellant against the respondents for $38,406. The finding of liability and assessment of damages also concerned minor assaults committed by two persons named Adrian and Nicole. No issue concerning those findings arises on the appeal.

3 The appellant appealed to this Court on a sole ground that the finding of 60 percent contributory negligence was against the evidence and the weight of evidence. The respondents cross-appealed against the finding that they were liable, confining their grounds to an alleged failure by the learned judge to address the issue of causation. They also appealed against the assessment of damages, limited to the assessment of past and future lost earning capacity.

4 The appellant went to the nightclub at about 1.30am with two friends. It was in the basement of a hotel. The entrance was at street level. It was necessary to pay an admission charge at street level, and to enter the club by going down some stairs. There were three security staff or bouncers on duty, named John, Mark and Brett. John's duties required him to spend most of his time at street level, whereas Mark and Brett were required to spend most of their time in the public areas of the club in the basement. The appellant and her companions went to the basement where they joined other friends. There was a group of individuals nearby which included persons who intensely disliked her. That group included a couple named Adrian and Nicole.

5 The learned judge found that the appellant's evidence was truthful and substantially accurate. It was as follows. (I have added passages in parenthesis which were part of her evidence but which were not referred to by the learned judge.) There were three incidents when Adrian and Nicole harassed the appellant and were removed by security staff. The first incident occurred at a time when she was at the bar getting some drinks. Nicole and Adrian approached. Nicole started screaming at the appellant and threatened her. Adrian was encouraging Nicole. The appellant had a friend go upstairs to get the security man named John. He came down and removed Nicole and Adrian from the premises. (Later in evidence the appellant said only that she saw them taken up the stairs). The second incident occurred about 15 minutes later. The appellant was dancing with two friends when Nicole and Adrian approached her on the dancefloor. They were bumping her, nudging her, swearing and threatening her. Two of the security staff removed them. She saw them go out the door near the bar that led to the stairs. At that stage she saw Grant Jackson standing near the disc jockey's box and laughing (and staring at her).

6 At a later point in time, the third incident involving Nicole and Adrian took place. They came back in. (She said that she was at a table). Nicole approached her, hit her in the side of the face and swore at her. Adrian then grabbed her around the throat. The security officers named Mark and Brett again took Nicole and Adrian away through the door that led to the street.

7 The learned judge found that shortly after the third and final removal of Nicole and Adrian a serious assault, that formed the primary subject of the action for damages, was committed by Grant Jackson. The appellant said that the two bouncers were still removing them when it occurred. She said that once again, she became aware of Grant Jackson standing near the disc jockey's box and laughing. She swore at him. She thought she told him to "fuck off". She said that he moved towards her (as a consequence, she said). She told him that she knew he and a man named Mark had trashed her car. Jackson (he was just laughing, according to her) said: "Yeah. So what? You're fucking house is next." She told him that he did not scare her and that she had two brothers who would deal with him. (She described him as more or less laughing in her face). She then made a spitting motion towards his face, but did not eject any saliva from her mouth. (She agreed that by doing so she was mocking him and that they were close to each other). He lunged at her. To protect herself, she bent down to get under a table. Jackson started kneeing her in the face as she was bent over. He had hold of her and was thrusting her face down into his knee. He kneed her in the face three times that she could recall. She had a recollection of losing consciousness. She ended up on another part of the floor, away from the table, out in the open. There, Jackson delivered a heavy blow to her face with his fist. She next saw Jackson at street level, at a later stage, when she was leaving the premises.

8 Although the appellant gave less thorough and somewhat varying accounts on earlier occasions in a police statement and in an application under the Criminal Injuries Compensation Act 1976, the learned judge regarded her account as truthful and substantially accurate. His Honour regarded it as being substantially corroborated by another witness, Tracey Walker, who was a member of the group that was antagonistic towards the appellant. (She described the group as hating the appellant). She had gone to the club that evening with Nicole and Adrian. The learned judge referred to her evidence in the following way. Miss Walker confirmed that Nicole and Adrian were spoken to more than once by security staff before the incident that led to their final removal from the club. She confirmed the final incident as involving Nicole apparently approaching the appellant and swearing at her, pushing her, shoving her and threatening her. She gave evidence that prior to that final incident, she heard Adrian make a telephone call, ask to speak to Grant and say: "She's here, are you coming down?" She said that Grant Jackson arrived after that and consumed quite a large amount of liquor whilst he was at the club. She saw Jackson start hitting the appellant. (In fact, it was her evidence that the final incident involving Nicole and Adrian came to an end when two of the bouncers took them off. She said that she had also intervened by pulling Adrian off the appellant. She said that two of the bouncers took Nicole and Adrian upstairs, that she stood with two others and turned to see that Jackson had come across the room. It was while the two bouncers were gone that the assault by Jackson took place.) She thought that Jackson's right knee came up into the appellant's face and that the appellant then fell to the ground, crawled through tables, looked up at her, and "passed out, like semi-unconscious".

9 The only other witness at the trial who was present on the night in question was the second respondent, Mr Beauregard. He did not see the assault by Jackson or the events that preceded it. At the time of the assault he was in a back area with the security man named Mark, attempting to remove blood from Mark's shirt that had got there when he was finally ejecting Nicole. The second respondent heard the barman call out that there was a fight and Mark went into the bar straight away, followed by the second respondent. He saw Mark taking Jackson out the door with someone else's assistance. The learned judge accepted his evidence about those matters and made no attempt to resolve an obvious conflict between it and evidence of the appellant, which was also accepted. I am referring to Mr Beauregard's evidence that the bouncer named Mark was out the back with him at the time of Jackson's assault and the evidence of the appellant that at that time Mark was occupied with another bouncer putting out Adrian and Nicole. The likely explanation for the learned judge not resolving that conflict is that in the closing addresses of both counsel it was accepted that at the time of the assault by Jackson, the two bouncers who removed Adrian and Nicole after the third incident were still occupied in doing so.

10 The learned judge found that there were about 50 to 70 people in the club at the time of the assault by Jackson. It was not the appellant's contention that more than three security staff should have been on duty. Her case was that the respondents' duty of care required Adrian and Nicole to be ejected from the club after the first incident involving them, or after the second incident at the latest; that it was reasonably foreseeable that whenever the security staff were absent from the main downstairs area ejecting troublemakers, a customer might take the opportunity to do something violent; that the respondents' duty of care therefore required them to minimise the absences of the downstairs security staff by not re-admitting customers who might have to be removed for a second or third time; and that she was injured as a result of the security staff not taking that step to minimise their absences from the downstairs area. She further contended that it was known to the respondents and the security staff that there was a degree of hostility towards her, or the group that included her, from within the group that involved Adrian and Nicole and that it was reasonably foreseeable that there might be an outbreak of violence between the two groups at any time when the security staff were absent from the downstairs area. On the other hand, it was contended for the respondents that a reasonable nightclub proprietor similarly circumstanced would not have taken any greater steps to protect the appellant, that there was nothing about the behaviour of Adrian and Nicole that warranted their exclusion from the club prior to the third incident; and that there was no reason to fear that violence might erupt between Jackson and the appellant until she swore at him, at which stage the security staff were temporarily absent.

11 The learned judge did not think that prior to the third removal of Adrian and Nicole it was reasonably foreseeable on the part of the respondents or their staff that Jackson would assault the appellant or anyone else. However, his Honour thought it reasonably foreseeable that someone, though no-one in particular, in the group that included Adrian and Nicole, might continue the harassment of the appellant after their removal from the premises, particularly if an opportunity to do so without being observed by the security staff arose as a result of all of them being temporarily absent at the same time. His Honour accepted that there was no evidence that any one from the other group, apart from Adrian and Nicole, displayed any hostility towards the appellant prior to the final encounter with Jackson, and that there was no evidence that any of the others from that other group displayed hostility towards any other member of the appellant's group. However, the learned judge said that there was evidence that a risk of violence to the appellant was known to the respondents and their security staff. Ms Walker gave evidence that about six weeks before the night in question, she was at the club after closing time drinking with both respondents, Grant Jackson and the security men named Mark and Brett. She said that there was a discussion about the appellant and about how much she was hated, and it was said that she "would get what was coming to her". The second respondent confirmed that he was present at that conversation, but said that he did not realise the extent of the bad blood between the two groups prior to the assault by Jackson. On the basis of that evidence, the learned judge found that the respondents and their security staff ought to have foreseen the possibility that Adrian and Nicole were not alone in their hostility towards the appellant, and that someone else from that group might harass or injure her after their removal. His Honour found that was a risk that the respondents ought to have taken reasonable steps to obviate.

12 Referring to the Liquor and Accommodation Act 1990, s62, which obliged a licensee to require a person to leave licensed premises if acting in a violent, quarrelsome or disorderly way, the following critical findings were made by the learned judge :

"Quite apart from the risk of injury to the plaintiff from another member of the group, there was a general risk of injury to some customer during the temporary absence of the security staff. That temporary absence could have been avoided by the security staff ejecting and excluding Adrian and Nicole after the second incident. The evidence does not establish whether they were then ejected and re-admitted, or whether they were simply taken out of sight and spoken to before being allowed to return to the dance floor. Given that they had resumed their harassment of the plaintiff after the first incident, I think it was reasonably foreseeable that they would resume it again if not excluded after the second incident, and that it would be necessary for both the security men based downstairs to absent themselves, possibly for a matter of minutes, in order to remove them if a third incident occurred. Given that s62 required them to be made to leave even if their behaviour was merely quarrelsome or disorderly, I think that the defendants' duty of care to patrons generally required the couple to be excluded after the second incident. Otherwise they might have taken up more and more of the security staff's time, to the risk of customers generally. Mr Beauregard gave evidence to the effect that it was the policy of the house to exclude troublemakers only after the use of physical force.

In my view the defendants' duty of care required them not just to employ an adequate number of security staff, but also to take reasonable steps to ensure an adequate level of supervision and control of their customers by the security staff whenever practicable. By failing to exclude Adrian and Nicole after the second incident, the defendants' security staff created a risk that they would need to remove them on a third occasion, leaving the customers temporarily unsupervised and unprotected. Having regard also to the known risk of violence to the plaintiff and the general risk of violence between customers, I think that the duty of care was breached."

13 The learned judge was not persuaded that the readmission of Nicole and Adrian after the first incident involved a breach of the respondents' duty of care. He accepted that with hindsight, it could be said that it would have been better if they had not been readmitted, but considered that it was not negligent to allow it. There had been no physical force used during the first incident and his Honour made the point that individuals do calm down on occasions.

The cross-appeal against the finding of liability

14 The only ground of the cross-appeal against the finding that the respondents breached their duty of care and were liable to the appellant is "that the learned trial judge erred in law in that he failed to consider the question whether the unreasonable failure to eject Nicole and Adrian after the second incident was causative of the injuries suffered by the Plaintiff".

15 The ground has been made out. The learned judge found that there was a breach of the duty of care of the respondents to take reasonable steps to ensure that their was an adequate level of supervision and control of their customers by the security staff whenever practicable. His Honour found that the duty was breached when the security staff failed to exclude Adrian and Nicole after the second incident, thereby creating a risk that they would need to remove them on a third occasion, leaving the customers temporarily unsupervised and unprotected. But the learned judge did not deal with the question whether that breach in fact caused the appellant to suffer her injuries.

16 Resolution of the issue of causation required a consideration of the likelihood that the assault would have been prevented if the security officers had not had to eject Adrian and Nicole a third time. That in turn required a consideration of whether the breach of the duty of care resulted in one or more of the security officers not being in attendance in the main room of the club at the time of the assault by Jackson. In that connection, regard might have been had to Mr Beauregard's evidence that Mark was with him, out the back, having blood washed off his shirt. Account needed be taken of the extent to which the club environment was dark, noisy and crowded (there were 50 to 70 people in the club at the time) and whether security officers may have had other tasks to occupy them, making it more difficult for them to observe and prevent the sudden outbreak of violence that occurred when the appellant made a spitting motion at Jackson. The learned judge found that it was not reasonably foreseeable that Jackson in particular was likely to assault the appellant. Therefore, there was no need for a security officer to be paying special attention to him.

17 The ground of the cross-appeal is not that the learned judge should have concluded that it was not proved that the breach of the duty of care caused the appellant's injuries. It is that the learned judge failed to consider the issue of causation at all. As the ground has been made out the next question that arises is whether this Court should determine the issue of causation or whether it should be remitted for determination by a judge, probably requiring a complete re-hearing of the issues concerning liability by a different judge. I would invite submissions from the parties before deciding which course is appropriate.

The appeal against the finding of contributory negligence

18 It was found by the learned judge that the appellant provoked Jackson's assault notwithstanding that she had been assaulted by him in the recent past. His Honour continued:

"She had seen the security staff leave with Adrian and Nicole. In their absence she publicly swore at Jackson, accused him of trashing her house, said that he did not scare her, threatened to get her brothers to deal with him, and made a spitting motion towards him. For the sake of her own safety, she should not have said or done any of those things. But for that provocative conduct, I think Jackson would not have assaulted her. In my view the plaintiff's provocative conduct amounted to contributory negligence.

The defendants went a long way towards discharging their duty of care. They employed an adequate number of security staff. The security staff were attentive to their duties. Their absence from the public area of the nightclub was very brief. The risk of violence occurring during that brief absence was quite small. By comparison, the provocative conduct of the plaintiff made it very likely that she would be assaulted. However the plaintiff had little time to think, and was in a stressful situation that must not have been conducive to calm deliberation. The defendants, on the other hand, had ample opportunity to consider their policy as to the exclusion of troublemakers, and to take account of the fact that the plaintiff was hated by other customers and likely to be attacked. Taking all those matters into account, and taking into account the relative insignificance of the harm done by assailants other than Jackson, I think that the plaintiff should bear the greater share of the responsibility for her injuries. I think it would be just and equitable to reduce her damages by 60 per cent accordingly."

19 The only ground of the appeal by the appellant is that the finding of the learned judge that damages should be reduced by 60 percent by reason of contributory negligence was against the evidence and the weight of the evidence. Until resolution of the issue whether the respondents' breach of duty, as found by the learned judge, or if there is to be a rehearing, that may be found following a rehearing, caused the appellant's injuries, it is inappropriate for this Court to determine whether the finding with regard to contributory negligence should stand. Apportionment of liability for contributory negligence pursuant to the Wrongs Act 1954, s4(1), requires a reduction in a plaintiff's damages by such extent as the court thinks just and equitable, having regard to the claimant's share in the responsibility for the damage compared to the defendant's share in that responsibility. The making of an apportionment in the responsibility for damages involves a comparison both of culpability, that is, the degree of departure from the standard of care of the reasonable person, "and of the relative importance of the acts of the parties in causing the damage". Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494. This Court should not determine the appeal against the apportionment of liability unless it first determines the question whether the respondents' breach of duty, as found by the learned judge, caused the appellant's injuries. A comparison of the relative importance of the acts of parties in causing the damage will only then be possible.

20 Damages were assessed at $96,014. That amount included $400 for about three weeks loss of earnings immediately following the assault, $21,105 for loss of earning capacity from then until judgment on 6 September 2004, and $44,104 for loss of earning capacity thereafter. Relevant findings of fact included the following.

21 The assault was committed on 1 December 1996. The learned judge described the injury inflicted by Jackson as very serious. The appellant was taken to the Royal Hobart Hospital by the police. She was not admitted. She was treated at the outpatient's department several times over the following weeks. In subsequent years she saw private general practitioners seven times in relation to her facial injury and a psychiatrist twice for psychiatric consequences. Her physical injuries included a probable fracture of the zygoma in the area of the right orbital floor and damage to the right infraorbital nerve with lasting consequences. More than seven years after the assault, she suffered from feelings of tightness, tenderness, numbness and pins and needles to areas on the right side of her face. She cannot feel her upper right teeth and gums. She dribbles if she sleeps on her right side and sometimes spills drinks because of the impairment of sensation. Surgery might improve those symptoms, but not necessarily.

22 The psychological effects from the assault were found by the learned judge to have caused past and future lost earning capacity. At the time of the assault she was living alone in Hobart and was working for a supermarket, filling shelves at night. After it she was at first too scared to live alone and lived with friends until after a prosecution of Jackson was completed in about June or July 1997. Soon after that she obtained a transfer of her employment to Launceston and moved to live there.

23 As a consequence of the assault she has since been socially withdrawn to a degree. She was exposed to other emotional stressors before and after the night in question, most or all of which emanated from individuals hostile to her. She is a person who was vulnerable to the onset of psychological symptoms.

24 Since the assault, she has been unwilling to live or work in places where she does not feel safe. She does not consider Hobart a safe place, and therefore will never return to live in Hobart and will not normally go there. She does not like big cities, but did spend some weeks in Melbourne. She is unwilling to work in the sorts of places that have bouncers, except perhaps in areas closed to the public. She no longer normally frequents the sorts of places that have bouncers, though she has gone to nightclubs and gambling venues on occasions. These are all aspects of her continuing emotional reaction to the events of the night in question.

25 She was 36 years old at the time of judgment. The learned judge found that her earning capacity was quite low before she was injured. She left school at the end of Grade 10. She worked as an assistant in a hairdressing salon, but gave up that work because she was allergic to peroxide. She worked as a bar attendant in a number of hotels over the years. She was a textile worker in Launceston for two years, was retrenched, but was re-employed in that position for another five years. Thereafter she worked in more hotels as a bar attendant. In 1995 she moved to Hobart and worked for a transport company in a full time position for about 12 months. The business collapsed. She then obtained work as a bar attendant at a hotel and as a cook at a golf club. After that she commenced the employment that she held when she was assaulted, as a night fill worker in a supermarket. In the years before the assault her earnings were often so low that she supplemented them with social security benefits.

26 Following the assault and after moving to Launceston in mid-1997, she continued working for the supermarket company, filling shelves at night, for about a year. She left to take up a position as a hotel cook for some months, until her employer went broke. From June 2000 until October 2002, she carried on business operating the kitchen of a golf club. The arrangement with the club was that she would supply meals at prices fixed by the club. Although she loved the work and worked very long hours, the business became unprofitable, a fact reflected in her income tax returns and assessment notices, and she abandoned it. She approached a number of prospective employers seeking work, without success. In or about November 2003 she obtained employment as a textile worker with James Nelson (Tasmania) Pty Ltd. At the time of judgment she was earning from that employment about $450 per week after tax. There was a risk that she would be retrenched, since the company's business was shrinking, and it had been reducing staff levels. From time to time since December 1996, the appellant had supplemented her earnings with social security benefits, having been eligible for them when she was either unemployed or not in full time employment.

27 The pattern of the appellant's earnings and social security payments can be seen from the following table, which was compiled by the learned judge from her income tax returns and assessment notices.

28 At the time of the assault, she was working part-time, averaging about 20 to 22 hours per week. The learned judge found that the best indication of her earnings at that time was her income from the same employer doing similar work for the year to 30 June 1998, being $7,400 gross or $6,730 after deduction of tax. That represented about $130 per week after tax. Accordingly, the learned judge assessed her loss of earnings for the few weeks she was off work immediately following her injury at $400.

29 Upon the basis of the findings to which I have referred, the learned judge assessed the rest of the damages for lost earning capacity in the following way:

"The impact of the plaintiff's injuries on her earning capacity following her return to work cannot be so easily quantified. In my view the only appropriate approach is to assess sums to compensate her for the general impairment of her earning capacity. Because of the psychological effects of the attack on her, she has not been prepared to seek employment as a bar attendant, even when unemployed for an extended period. For the same reasons, she will never be suitable for security work. She had not done any security work in about 11 years in the workforce prior to the night she was attacked, but there may have been some possibility that she would have been attracted to such work one day. As an indoor cricketer, I expect she was reasonably fit. With her experience in bar work, there is a chance that security work might have been available to her. Despite her lack of formal qualifications, she has had valuable experience working as a cook and as a textile worker. Working full-time, she is capable of earning about $450 per week after tax. Before she was injured, she was not able to exploit her earning capacity fully, apparently as a result of the state of the labour market. The position is further complicated by the fact that she used to receive cash income and cash gratuities when doing bar work - income that was apparently not taken into account when her tax returns were compiled by her accountants. No doubt there are bars in the Launceston area that are sufficiently genteel and trouble-free for the plaintiff not to feel unsafe in them, but I think she might have difficulty obtaining employment in such places, having regard to the downmarket nature of most of the hotels she has worked in.

I am satisfied that her capacity to undertake bar work has been significantly impaired, and is likely to remain so for the rest of her life. Less significantly, I am satisfied that her capacity to undertake security work has been forever destroyed. She is entitled to be compensated accordingly. Allowance has to be made for the usual adverse contingencies, including mortality, illness, retirement, and voluntary absence from the workforce. It is unlikely that the plaintiff would be interested in absenting herself from the workforce to bring up children since she is a lesbian, and has been at all material times. On the other hand, her work history shows that she has undergone substantial periods of unemployment and under-employment. I therefore think I should make much greater than usual allowance for those adverse contingencies. However she is likely to mitigate her losses by obtaining social security payments. She will not become eligible for an age pension until her 65th birthday: Social Security Act 1991 (Cth), s23(5D). Given her financial position and earning capacity, I expect she will have little choice but to remain in the workforce until then.

Doing the best I can, I think it is appropriate to compensate the plaintiff for the impairment of her earning capacity since her return to work in December 1996 on the basis that she has lost 15 per cent of her earning capacity; that if fully employed since December 1996 she would have earned an average of $350 per week after tax; that she is presently capable of earning $450 per week after tax when working full-time; and that her working life will end when she is 65 years old. Accordingly, I assess her damages for the impairment of her earning capacity since 22 December 1996 as follows:

The multiplier of 653.4 is derived from Luntz, Assessment of Damages for Personal Injury and Death, 4th ed at 699, Table 4D."

30 The grounds of the cross-appeal, insofar as it attacks the assessment, are as follows:

"4 The learned trial judge erred in law in his award of damages for both past and future lost earning capacity in that, contrary to the principle in Graham v Baker, he failed to make findings as to the extent to which the Plaintiff might have exercised her earning capacity absent the injury so as to be productive of financial loss.

5 In the alternative the learned trial judge was wrong in fact in finding that the earning capacity of the Plaintiff between the time of the assault and trial likely to have been exercised by her so as to produce income was $350.00 net per week.

6 Further and in the alterative the learned trial judge was wrong in fact in finding that the earning capacity of the Plaintiff at trial likely to have been exercised by her so as to produce income was $450 net per week."

31 Damages may not be recovered for loss or diminution of earning capacity unless the loss or diminution is or may be productive of financial loss. Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 at 347; Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 at 143. Such damages are awarded so as to put the injured person in the same financial position he or she would have been in if the injuries caused by the wrong had not been suffered.

32 Counsel for the respondents submitted that the learned judge was in error in assessing the damages for loss of earning capacity upon the basis that the appellant had lost and would continue to lose 15 percent of the amount she could have earned if fully employed and uninjured. Instead, it was submitted that the 15 percent should have been applied to the amount the appellant would have earned if she had not suffered her injuries. As is maintained by ground 4 of the cross-appeal, it was further submitted that if the learned judge had done so, it would have been necessary for his Honour to make findings as to the extent to which the appellant would have exercised her earning capacity if she had not been injured. Certainly, as a matter of principle, the learned judge would not have erred if he had assessed the appellant's likely earnings if she had not been injured and then awarded an amount calculated by way of a percentage based on a finding as to the extent to which her likely earnings had been reduced by her injuries. However, a consideration of the reasons for judgment of the learned judge make it clear that if his Honour had applied that process of reasoning, the percentage amount he would have applied would have been greater than 15.

33 In making the assessment, the learned judge reasoned in the following way:

1 Upon the evidence in this case, the impact of the injuries on the appellant's earning capacity could not easily be quantified and the only appropriate approach was to assess, in a broad and general way, sums for the impairment of her earning capacity for the periods before and after judgment. It was impossible to confidently make precise assessments by mere mathematical calculations.

2 Before she suffered her injuries, the appellant had valuable experience working as a cook and as a textile worker. She worked as a bar attendant in a number of hotels over the years and also as a night fill worker in a supermarket. She held a full-time position for one year with a transport company. She had not done security work in about 11 years in the workforce but she may have been attracted to such work one day. Her experience as a bar attendant might have assisted her to obtain it.

3 As a result of her injuries, the appellant had a permanent inability to do security work and more significantly, she had an impairment of her capacity to do bar work. As a consequence, she would have great difficulty finding suitable bar work. She was entitled to be compensated accordingly.

4 If she had worked full-time between December 1996 and judgment on 6 September 2004, she would have earned an average of about $350 per week after tax. At the time of judgment she was capable of earning $450 per week after tax if working full-time. However, her pre-accident history showed that she was not able to exploit her earning capacity fully because of a lack of qualifications for full-time jobs and the state of the labour market. When assessing damages for lost earning capacity to the date of judgment, allowance had to be made for adverse contingencies including the likelihood, based on her history, that she would have had periods of unemployment and under-employment.

5 When assessing damages for lost earning capacity after the date of judgment, allowance in favour of the respondents had to be made for the usual contingencies, including mortality, illness, retirement and voluntary absence from the workforce, and for the likelihood, based on her history, that she would have had periods of unemployment and under-employment in any event. However, no allowance in favour of the respondents should be made for the contingency of having children, because the appellant is a lesbian. Given her poor financial position and earning capacity, she was likely to have little choice but to (seek to) remain in the workforce until her 65th birthday.

6 Doing the best he could (no precise method of calculation being open on the evidence), the learned judge determined that it was appropriate to compensate the appellant for the impairment of her earning capacity since her return to work in December 1996 as if she had lost and would continue to lose until her 65th birthday 15 percent of what she would have earned if she had worked full time, that is to say upon the basis of a loss in the past of 15 percent of $350 per week and in the future of 15 percent of $450 per week. Applying the appropriate 7 percent compound interest discount table for the assessment for the future, the learned judge awarded $44,104 for the future and $21,105 for the past.

34 Ground 4 of the cross-appeal asserts that the learned judge erred by failing to make findings as to the extent to which the appellant, if she had not been injured, might have exercised her earning capacity so as to be productive of income, having regard to the principle of Graham v Baker (supra) that damages may only be recovered for the loss or diminution of earning capacity to the extent that it would have been productive of financial loss. In written submissions, it was stated that the crux of the ground is that the learned judge erred by failing to consider the extent to which the appellant, absent the assault, might have worked and thereby exercised her capacity between the date of the assault and judgment, and he did not consider that question for the future. Putting it another way, it was submitted that the learned judge based his calculations on an assumption that the appellant would have been fully employed had the assault not occurred. It was further submitted that such an assumption was not open on the evidence and was contrary to other findings of fact made by his Honour.

35 I do not agree. Although the figures arrived at by the learned judge were calculated upon the basis of 15 percent of the amount the appellant might have earned from full-time work until her 65th birthday, it is clear that his Honour was only using that as a method of arriving at a sum with which he felt comfortable. It is obvious, having regard to the preceding statements, that his Honour took into account that the appellant's history showed that she would not have been in full-time work on a permanent basis and that "a much greater than usual allowance" should be made because of that fact. There were different ways of making the assessment and errors should not be attributed to the way in which his Honour went about his task. The undoubted fact was that at the time of judgment the appellant was earning $450 per week after tax. The respondents' counsel accepted that figure as correct. It was the only certain figure available to the learned judge for use when making the assessment for the future. He could have endeavoured, if he had so decided, to convert that figure into one that was more commensurate to the weekly hours on average that the appellant was likely to have worked, but there was no obligation to do so.

36 Ground 5 attacks the finding of the learned judge that between December 1996 and the judgment the appellant would have earned $350 per week after tax if employed on a full-time basis. In the financial year to 30 June 1996, shortly before the assault, she averaged $275 per week gross. In the year to 30 June 2003 she worked from 24 October 2002 for James Nelson (Tasmania) Pty Ltd for the remaining 36 weeks of that financial year, earning an average of $460 per week gross and at the time of the trial she was earning $450 per week after tax. There was evidence that in the past she had worked for the one textile company for a total of seven years. Upon the basis of those facts and figures it could not be said that $350 was an erroneous statement of the average weekly amount after tax she might have earned if in full-time employment. The learned judge did not find, as the ground of the cross-appeal suggests, that she would in fact have earned that amount on average over the years since the assault.

37 As to ground 6, the figure of $450 net per week was the amount being earned by the appellant at the time of the trial. As already noted, counsel for the respondents agreed that it was correct. The learned judge did not find that the appellant was likely to have continued to earn that amount but for her injuries.

38 Therefore, none of the grounds of the cross-appeal against the assessment of damages have been established.

39 All parties to an action for damages have appealed against an award of $38,406 entered in favour of the appellant. The assessment of $96,014 was reduced by 60 per cent for contributory negligence. The appellant challenges the finding of contributory negligence or, at least, its extent, whilst the respondents contend error in a failure to properly determine the issue of causation and the method in the assessment of past and future earning capacity.

40 The evidence adduced at trial has been summarised and, in my opinion, correctly analysed by Crawford J in his reasons for judgment and require, for the purpose of my reasons, no further exposition.

41 The appellant relevantly pleaded in her statement of claim:

"1 AT all material times the Defendants were the owners and/or proprietors of a bar and night club known as 'La Cage' situate at 73 Collins Street, Hobart in Tasmania.

2 ON or about the 1st December 1996 the Plaintiff was lawfully present at the Defendants' said bar and night club when she was savagely assaulted and beaten by other patrons, invitees or staff present inside the Defendants' said bar and night club.

3 THE said assault and beating which the Plaintiff suffered was occasioned to her by reason of the negligence and breach of duty of the Defendant.

The Defendants, their servants or agents, were negligent in that he or they:

(a) Failed to take any or any adequate measures or precautions to ensure that the Plaintiff was protected from being assaulted by other patrons, invitees or staff whilst lawfully present inside the Defendants bar and night club;

(b) Failed to have adequate security for the purposes of ensuring that adequate security protection was afforded the Plaintiff;

(c) Exposed the Plaintiff to a risk of injury which he or they knew or ought to have known of in that the assailants of the Plaintiff, having previously been ejected from the Defendants' bar and night club, were shortly thereafter re-permitted to enter;

(d) Failed to warn the Plaintiff that she was in a position of peril as a consequence of her assailants being re-permitted entry to the Defendants' bar and night club;

(e) Failed to take any or any adequate steps to protect the Plaintiff from a savage assault."

42 There was no question but that the respondents owed a general duty of care to the appellant as a patron of their premises and commercial activities (Club Italia (Geelong) Inc v Ritchie [2001] VSCA 180; (2001) 3 VR 447; Cole v South Tweed Heads Rugby League Football Club Limited [2004] HCA 29; (2004) 78 ALJR 933). At trial the parties concentrated their respective causes on the issue of breach of duty and foreseeability and such is reflected in the reasons for judgment of the learned primary judge ([2004] TASSC 96). In those reasons his Honour stated, at pars12 - 13:

"Jackson had assaulted the plaintiff on an earlier occasion. I infer from Ms Walker's evidence of the phone call made by Adrian that there existed an arrangement for Jackson to attend the club for the purpose of troubling the plaintiff. I am not able to make a finding as to how far he or Adrian thought he might go in causing her trouble. However, there is no evidence that the defendants or any of their staff knew or ought to have known of the previous assault, or of Jackson's plan to trouble the plaintiff. He worked at the club as a bouncer, but was not on duty on the night in question. Assaulting a customer upon the premises on a night off was likely to cost him his job. (In fact it did.) Prior to the third removal of Adrian and Nicole, I do not think it was reasonably foreseeable on the part of the defendants or their staff that Jackson would assault the plaintiff or anybody else. Although he had been drinking heavily, there is no suggestion that his conduct had been quarrelsome or disorderly, let alone violent, nor that he had shown any likelihood of turning violent.

However I think it was reasonably foreseeable that someone, though no-one in particular, in the group that included Adrian and Nicole might continue the harassment of the plaintiff after their removal from the premises, particularly if an opportunity to do so without being observed by the security staff arose as a result of all of them being temporarily absent at the same time. There is no evidence that anyone from the other group displayed any hostility towards the plaintiff prior to the final encounter with Jackson, nor is there any evidence that anyone from that other group displayed any hostility towards any other member of the plaintiff's group. However there is evidence that a risk of violence to the plaintiff was known to the defendants and their security staff. Ms Walker gave evidence that, about six weeks before the night in question, she was at the club after closing time drinking with both defendants, Grant Jackson, and the security men named Mark and Brett. She gave evidence that the plaintiff was discussed; that there was discussion of how much she was hated; and that it was said that she 'would get what was coming to her'. Mr Beauregard confirmed that he was present at that conversation, but said that he did not realise the extent of the bad blood between the two groups prior to the assault by Jackson. On the basis of that evidence, I find that the defendants and their security staff ought to have foreseen the possibility that Adrian and Nicole were not alone in their hostility towards the plaintiff, and that someone else from their group might harass or injure her after their removal. That was a risk that the defendants ought to have taken reasonable steps to obviate."

43 That approach adopted by the learned primary judge accepted a causative link between the failure to take steps to prevent the re-admission of the assailants to the premises. The question can be answered if it is accepted that the appellant had proved that the provision of more staff or the exercise of greater vigilance would have prevented the assault and such be permitted through hindsight (Commissioner of Main Roads v Jones [2005] HCA 27). A breach of duty and the fact of injury might, combined, permit a finding of liability, but such is a consequence of inference rather than proven nexus. As Callinan J observed in Jones (supra) at pars79 - 80:

"An allied problem is that the majority did not say what any warning sign should contain or depict. Having regard again to the variables to which I have referred, the contents of the signs might themselves have to vary, as otherwise they might be irrelevant, or indeed perhaps even misleading on different occasions and in different places.

This was not a case in which cause could be inferred from the result, that is the collision. In the dictum of Gaudron J in Bennett [1992] HCA 27; (1992) 176 CLR 408 at 420, upon which Steytler J relied, there is reference to a statement by Dixon J in Betts v Whittingslowe [1945] HCA 31; (1945) 71 CLR 637 at 649, a case of breach of statutory duty, to the effect that the breach coupled with the fact of an accident of the kind that might thereby be caused, is enough to justify an inference that in fact the accident occurred owing to the breach. But contained within that statement is the important qualification of an 'absence of any sufficient reason to the contrary'."

44 Here the injury had not been caused by an employee or agent of the respondents. At best the third assailant had, on occasions, been employed as a security officer or "crowd controller" by the respondents. The commencing point to consideration of liability was, as stated in the pleadings, whether "the ... assault and beating which the Plaintiff suffered was occasioned ...", although the pleading does not state by whom or by what, but simply proceeds to the allegation of "by negligence". The assault giving rise to injury was effected by Grant Jackson, who had not been one of the persons evicted. There had been three incidents involving the appellant. The first involved the approach to, and harassment of, the appellant by two persons known to her and whose conduct was a result of personal antipathy unconnected with the conduct of the premises. That conduct resulted in the eviction of the perpetrators. The second occurred some 15 minutes later when the two persons, having through some means not clearly explained at trial, resumed their harassment. The finding of the learned primary judge, not challenged on appeal, was, at par3, that:

"About 15 minutes later, the plaintiff was dancing with two friends when Nicole and Adrian approached her on the dance floor. They were bumping her, nudging her, swearing, and threatening her. Two of the security staff removed them. She saw them taken as far as a door near the bar that leads to the stairs to the street. She saw them go out that door. At that stage she saw a man named Grant Jackson standing near the disc jockey's box and laughing. Then she saw Adrian and Nicole come back in. Nicole approached her, hit her to the side of the face, and swore at her. Adrian then grabbed her around the throat. The security officers named Mark and Brett again took Adrian and Nicole away through the door that leads to the stairs to the street."

45 It was after the third eviction that the assault giving rise to injury and compensable damages occurred. That event was described by the learned primary judge in the following terms at par4:

"A serious assault that forms the primary subject of this action occurred shortly after the third and final removal of Adrian and Nicole. The assault in question was committed by Grant Jackson. The plaintiff's evidence as to that assault was to the following effect. She again became aware of Grant Jackson standing near the disc jockey's box and laughing. She swore at him. She thinks she told him to 'fuck off'. He moved towards her. She told him that she knew he and a man named Mark had trashed her car. Jackson said, 'Yeah. So what? Your fucking house is next.' She told Jackson that he did not scare her, and that she had two brothers who would deal with him. She made a spitting motion towards his face, but did not eject any saliva from her mouth. He lunged at her. To protect herself, she bent down to get under a table. Jackson started kneeing her in the face as she was bent over. He had hold of her, and was thrusting her face down into his knee. He kneed her in the face three times that she can recall. She has a recollection of losing consciousness. She ended up on another part of the floor, away from the table, out in the open. There, Jackson delivered a heavy blow to her face with his fist. She next saw Jackson at a later stage, at street level, when she was leaving the premises."

46 Had the assault causing injury been effected by either of the original assailants, then the issue of foreseeability and breach of duty might have properly been determined in favour of the appellant. But at its highest the evidence permitted only the conclusion that the re-entry of the two original assailants and their repetition of abuse and physical harassment, excited the emotions of the perpetrator of the injury to a further attack following eviction, perceived by that person to have been unfair. The question then becomes whether the respondents caused the injury by permitting (through a non-delegable duty) the re-entry of persons whose presence inflamed the conduct of another who acted in their stead and in their absence. In my opinion to extend the test of causation to that degree is not appropriate.

47 The ground of appeal relevant to this issue claims error in that the learned trial judge:

"... failed to consider the question whether the unreasonable failure to eject Nicole and Adrian after the second incident was causative of the injuries suffered by the Plaintiff."

48 The ground repeats the approach taken by the respondents at trial, namely the introduction of the test of reasonableness into the question. The test of causation ought be "value free". It could be expressed in terms of whether the re-admission of the two original assailants to the premises resulted in a third person striking the appellant, after their eviction, causing injury. The relationship of re-admission with injury is but tenuous in that it operates as a surrounding circumstance or in the sense discussed by Mason CJ in March v Stramare (1990 - [1991] HCA 12; 1991) 171 CLR 506 as a sine qua non. But re-admission was not causative, in a legal sense, of the injury.

49 The issue of causation is one of fact. Leaving aside the difference of approach taken by Mason CJ and McHugh J in March v Stramare as to the import of the terms causa causandis and causa sine qua non, the legal concept of causation differs from philosophical and scientific notions (March v Stramare, Mason CJ at 509 (supra); The National Insurance Co of New Zealand v Espagne [1961] HCA 15; (1961) 105 CLR 569, Windeyer J at 591). Legal responsibility is a consequence of a number of conditions sufficient to produce that damage (Sherman v Nymboida Collieries Pty Ltd [1963] HCA 63; (1963) 109 CLR 580). Reasonable foreseeability is not, in itself, a test of causation but marks the "limits beyond which a wrongdoer will not be held responsible for damage resulting from his wrongful act", (Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112). The introduction of competing duties or responsibilities with the "last opportunity" rule by contributory negligence legislation might make the factual solution more complex or difficult, but those concepts do not negate the primary requirement of nexus. While the law recognises that concurrent or successive tortious acts may each amount to a cause of the injuries it continues to require, as a precondition that the injury was caused or materially contributed to by conduct. This is not a case of novus actus interveniens. Here the blow causing the injury was struck by another after the eviction of the original assailants. It might have been a product of tension or emotion created in the assailant following their re-admission, but failure to prevent re-admission was no more than an antecedent condition similar to a pre-existing condition giving rise to injury (McGhee v National Coal Board [1972] UKHL 7; [1973] 1 WLR 1, [1972] 3 All ER 1008; M'Kew v Holland & Hannen & Cubitts [1969] UKHL 12; [1970] SC (HL) 20). The difference is explained by Mason CJ in March v Stramare (supra) at 515 - 516 in the following terms:

"Commentators subdivide the issue of causation in a given case into two questions: the question of causation in fact - to be determined by the application of the 'but for' test - and the further question whether a defendant is in law responsible for damage which his or her negligence has played some part in producing: see, for example, Fleming, The Law of Torts, 7th ed (1987), pp 172-173; Hart and Honoré, Causation in the Law, 2nd ed (1985), p 110. It is said that, in determining this second question, considerations of policy have a prominent part to play, as do accepted value judgments: see Fleming, p 173. However, this approach to the issue of causation (a) places rather too much weight on the 'but for' test to the exclusion of the 'common sense' approach which the common law has always favoured; and (b) implies, or seems to imply, that value judgment has, or should have, no part to play in resolving causation as an issue of fact. As Dixon CJ, Fullagar and Kitto JJ remarked in Fitzgerald v Penn (1954) 91 CLR, at p 277 'it is all ultimately a matter of common sense' and '(i)n truth the conception in question (ie, causation) is not susceptible of reduction to a satisfactory formula'.

That said, the 'but for' test, applied as a negative criterion of causation, has an important role to play in the resolution of the question. So much was conceded by Dixon CJ, Fullagar and Kitto JJ in Fitzgerald v Penn (1954) 91 CLR at pp 276-277, in their discussion of the unreported decision of this Court in Skewes v Public Curator of Queensland (delivered 6 September 1954) where A and B were driving their vehicles at excessive speeds in conditions of poor visibility so that their vehicles collided. A was on his correct side of the road, B was not. A's negligence was not causative of injury. Their Honours pointed out that, had the action been tried by a jury, it would have been correct for the judge to instruct the jury 'to ask themselves the question whether they were satisfied that the collision would not have taken place with the same results if driver A had been driving at a reasonable speed'. See also ICIANZ v Murphy (1973) 47 ALJR, at pp 127-128; Duyvelshaff v Cathcart and Ritchie Ltd (1973) 47 ALJR, at pp 414-415, 416-417, 419; 1 ALR, at pp 134-135, 138, 142-143.

The commentators acknowledge that the "but for" test must be applied subject to certain qualifications. Thus, a factor which secures the presence of the plaintiff at the place where and at the time when he or she is injured is not causally connected with the injury, unless the risk of the accident occurring at that time was greater: see Hart and Honoré, at p 122. As Windeyer J observed in Faulkner v Keffalinos (1970) 45 ALJR 80, at p 86:

'But for the first accident, the (plaintiff) might still have been employed by the (defendants), and therefore not where he was when the second accident happened: but lawyers must eschew this kind of "but for" or sine qua non reasoning about cause and consequence'."

50 Here the questions of foreseeability or breach of duty in permitting re-admission obscured the initial issue of cause and effect. In my opinion the ground is made out.

51 I would dismiss the appellant's appeal, irrespective of my conclusion as to causation. Had the cause of action been against Jackson, the assailant, it is difficult to see how the appellant contributed to her injury by way of plea of contributory negligence other than through prosecution. She might, as the learned primary judge concluded, have provoked the assault by her conduct in swearing at the assailant and spitting at or towards him. Whether such would constitute an intervening act to the physical blow raises a different question of causation. Assuming such to be the case, it would seem that the proportion of responsibility as found should not be interfered with (Chappel v Hart (1998) 195 CLR 232). The learned primary judge approached the question of competing conduct and his conclusion is subject to the usual restrictions of appellate intervention (see generally Fox v Percy [2003] HCA 22; (2003) 77 ALJR 989; Podrebersek v Australian Iron And Steel Pty Limited [1985] HCA 34; (1985) 59 ALJR 492; Czatyrko v Edith Cowen University [2005] HCA 14). If causation, as against the respondents, was established, then the conclusion reached ought be upheld. However, to me the appellant has not succeeded on the primary issue and if such be correct, the secondary question of apportionment does not arise.

52 I agree with the reasoning and conclusion of Crawford J as to the cross-appeal against damages. I would dismiss both the appeal and cross-appeal except as to the cross-appeal, ground 1. I would not remit the matter of causation for further consideration, but simply uphold the cross-appeal and dismiss the appellant's action. However I am conscious of the approach suggested by Crawford J in his reasons for judgment and agree that it would be appropriate for the Court to consider further submissions as to whether the matter ought be remitted or determined by this Court.

53 I have had the advantage of reading the reasons for judgment prepared by Crawford J; I agree with them and the course he proposes.