Stickel v Millcrist Investment Pty Ltd and Anor

District Court of NSW|2025-02-18|Before: Mr J

s Infinity Security Group (Second Defendant) Representation: Counsel: Mr J Capsanis (Solicitor Advocate) (Plaintiff) Mr M Hutchings (First Defendant) Mr A Moutasallem (Second Defendant)

Solicitors: JP Capsanis & Co Lawyers (Plaintiff) Sparke Helmore Lawyers (First Defendant) Hajjar Legal (Second Defendant) File Number(s): 2023/00138533 Publication restriction: Nil

Background

The plaintiff seeks damages from each of the defendants in respect of injuries said to have been suffered at around 11:00pm on 20 April 2017 as a result of assault, battery and false imprisonment allegedly perpetrated by security guards at licensed premises, known as the Side Bar, which are located in Sydney's Haymarket area (the premises).
The first defendant admits that it was the occupier of the premises and held relevant licences under the Liquor Act 2007 (NSW) (Liquor Act) and its cognate Regulations.
It is not controversial that the second defendant had been retained by the first defendant to provide security guards at the premises at the time in question.
The events relevant to the causes of action advanced by the plaintiff were captured on closed circuit television (CCTV) footage. That footage is the mainstay of the plaintiff's factual evidence and, as will become apparent, is pivotal in the determination of the claims he brings.
Accordingly, in the course of this judgment it will be necessary for me to make extensive reference to the CCTV footage. In that context, the following should be borne in mind: 1. There is no audio on the CCTV footage. 2. I will make reference to distances I perceive when describing the physical scene and the events which unfolded on that night. In doing so, I am conscious of the caution which must be exercised when gauging distances and dimensions and otherwise drawing conclusions from photographic evidence. However, the references I make to distance do not purport to be precise and are not critical to my findings. Rather, they are intended to provide perspective and a better understanding of what is depicted in the footage. 3. The CCTV footage was tendered into evidence through four exhibits. The plaintiff tendered three electronic files which contain footage of the scene from the three available cameras. Consequently, in that footage there is some overlap of the events depicted, while some camera angles show events which are not caught on other camera angles. The defendants, through the first defendant, tendered one electronic file which is a compilation of the three files tendered by the plaintiff, edited to provide excerpts of what are considered by the defendants to be the relevant interactions between the plaintiff and others at the scene. 4. I have had regard to all the CCTV footage contained in those electronic files to provide the narrative of events set out later in the judgment.
In terms of the physical environment, the CCTV footage shows the entrance to the premises. Immediately outside the entrance is an area providing an amenity for patrons, which I will refer to as the forecourt. This is a paved area bordered by planter boxes that looks to extend some 15 metres or so forward of the entrance. The forecourt is partly covered by a large awning. Adjacent to the forecourt is a public footpath and beyond the footpath is a roadway, with cars and buses seen to pass by regularly.
The CCTV footage shows that, at the time of the events in question, many young people were coming and going from the premises and congregating in the forecourt.
A number of security guards can be seen on the CCTV footage. They are discernible by yellow high visibility vests bearing the word "SECURITY".
The second defendant accepted that, for the purposes of determining allegations of vicarious liability, the security guards can be treated as employees of the second defendant. [1]
The Amended Statement of Claim relied upon by the plaintiff is a discursive pleading. However, the essential elements of the plaintiff's pleaded allegations can be summarised as follows: 1. On the night in question, the plaintiff, whilst in the vicinity of the premises, innocently touched a security guard (the First Security Guard) in what was no more than an "amicable parting gesture". 2. The First Security Guard then assaulted the plaintiff by physical blows and also strangled the plaintiff. 3. A short time later, the First Security Guard and a second security guard (the Second Security Guard) menacingly approached the plaintiff, causing the plaintiff to fear immediate attack and to then gesture in a manner to fend off the security guards. 4. The First and Second Security Guards then intentionally assaulted the plaintiff by punching him. 5. A third security guard (the Third Security Guard) and possibly one or two other security guards then joined the fray, and the Third Security Guard then punched the plaintiff, causing him to fall onto the roadway. 6. The First, Second and Third Security Guards then seized the plaintiff and dragged him onto the pavement, where the plaintiff was then further assaulted by being forcibly pushed onto the ground by the Third Security Guard. 7. A security guard, possibly the Third Security Guard, then sat on the plaintiff's chest and stomach for at least 15 minutes.
The plaintiff contends that each of the defendants is vicariously liable for the acts of the security guards.
The claim of vicarious liability against the first defendant is generally founded on an allegation that the first defendant acted in conjunction with the second defendant and exercised such a degree of control over the security guards as to make the first defendant vicariously liable for the tortious acts alleged against them. No other cause of action is advanced against the first defendant.
The claim of vicarious liability against the second defendant is a more conventional allegation, namely, that the second defendant is vicariously liable for the tortious conduct of its employees.
Both defendants dispute vicarious liability and both dispute that the security guards committed the assaults, battery and false imprisonment alleged by the plaintiff.
The first defendant argues that it cannot, in any circumstance, be vicariously liable for the security guards.
The second defendant does not contend that the relationship between it and the security guards is incapable of founding vicarious liability, however it argues that, if the plaintiff makes good the allegations he asserts, the conduct of the security guards would fall outside the scope of any vicarious liability it could bear for the security guards' actions. The first defendant adopts that argument in the event that, contrary to its primary position, the Court was satisfied that the first defendant could be vicariously liable for the acts of the security guards.
Both defendants contend that the law does not recognise joint vicarious liability so the plaintiff cannot recover against both defendants vicariously.
In final submissions, the first defendant, supported by the second defendant, argued that the plaintiff is pursuing what is effectively an indivisible claim for joint vicarious liability, or in other words, that no claim for individual vicarious liability on the part of each defendant was advanced by the plaintiff.
The plaintiff disputed that proposition and puts the case on the basis that, optimally, both defendants are vicariously liable, however, alternatively, one or other of them is vicariously liable for the acts of the security guards.
For the reasons I gave in the course of argument, I do not consider the plaintiff is confined to an allegation of joint vicariously liability only. In my view, the way the case is pleaded in the Amended Statement of Claim and the way the case proceeded also accommodates a claim for individual vicarious liability on the part of one or other of the defendants.
The factual narrative set out in the Amended Statement of Claim is strongly disputed by the defendants, who argue that the CCTV footage discloses a very different picture to the pleaded allegations.
My consideration of the factual dispute is not assisted by the plaintiff having no recollection of the relevant events, nor is it assisted by the absence of any evidence from eyewitnesses to those events.
In those circumstances, as earlier foreshadowed, the CCTV footage takes on great significance, although it does have its shortcomings. In particular, a number of the relevant events are obscured by patrons milling about. There is also obstruction caused by the overhanging awning and, in some instances, the activities occur some distance from the camera.

The CCTV footage

It is appropriate that I set out my observations on the CCTV footage, which are as follows: 1. A line of patrons can be seen waiting to enter the premises. 2. The entrance area appears to be supervised by a woman with long blonde hair (the blonde woman) holding a clipboard. There is also a man present who appears to be in his mid to late 20s with long hair worn in a bun, wearing a shirt bearing the words "Side Bar" (the man with his hair in a bun), and two security guards can be seen standing at the entrance to the premises (the Door Security Guards). 3. Standing around three to five metres from the line of patrons is a large security guard wearing a striped beanie (Security Guard One). 4. Periodically, Security Guard One approaches people and requires them to leave the line. My impression is that those people are being refused entry to the premises. 5. At one point, Security Guard One approaches a man, who is balding and wearing black (the man in black) and a woman wearing a white top (the woman in white) and removes them from the line. A conversation ensues. The man in black appears to remonstrate with Security Guard One. This appears to catch the attention of the blonde woman. It also catches the attention of one of the Door Security Guards, who walks over to join Security Guard One. 6. The man in black and the woman in white move out towards the street and the man in black gestures at Security Guard One before moving on. 7. Security Guard One resumes his position monitoring the line of patrons waiting to enter the premises. 8. In time, the plaintiff is seen in the line of people waiting for admission. 9. Security Guard One is then seen speaking to the plaintiff, after which the plaintiff leaves the line. The plaintiff then stands close to Security Guard One. 10. The plaintiff and Security Guard One are standing about five to six metres away from the entrance to the premises and are engaged in conversation. After some seconds, Security Guard One steps forward so that his back is oriented towards the plaintiff. 11. The plaintiff then approaches Security Guard One and engages him in further conversation. Security Guard One makes a gesture with his left arm, pointing away from he and the plaintiff. 12. While that is happening, a person wearing glasses (the person wearing glasses) approaches the doorway of the premises and is directed by one of the Door Security Guards to stand away. The person wearing glasses then stands unassumingly near Security Guard One. It is fairly obvious that the person wearing glasses is waiting for something, perhaps another person or admission into the premises. 13. Meanwhile, the plaintiff continues talking to Security Guard One and is leaning in, quite close to the security guard's face. The plaintiff then points to his own nose and face while talking to Security Guard One. One cannot know what the plaintiff is saying, however, it does not appear to be a convivial exchange and Security Guard One appears to be trying to discourage conversation and ignore the plaintiff. 14. The plaintiff then leans in further towards Security Guard One and points his finger at Security Guard One. The plaintiff's face is now quite close to the security guard's face. Security Guard One clasps his hands in front of his body as he moves away from the plaintiff slightly. 15. The interaction between the plaintiff and Security Guard One appears to have caught the attention of the blonde woman, the Door Security Guards and the man with his hair in a bun, who all appear to look on. 16. The person wearing glasses looks over toward the plaintiff and Security Guard One while this interaction is occurring and appears to take a step away. 17. The plaintiff is seen to turn to walk away. As he does so, the plaintiff extends his right arm and pats Security Guard One on the back/shoulder, at least once and possibly twice. Security Guard One appears to nod and again gives the impression of trying to ignore the plaintiff. 18. The plaintiff then, with his right hand, appears to slap Security Guard One on the back of the head while in the process of moving away. 19. Upon being slapped on the back of the head, Security Guard One immediately launches himself at the plaintiff. 20. Security Guard One places both hands around the plaintiff's throat and appears to be strangling the plaintiff. They move a few steps with the security guard holding onto the plaintiff who does not appear to be attempting to retaliate in any way. 21. The person wearing glasses moves further away, holding his hands up in a surrender type position as the Door Security Guards and the man with his hair in a bun immediately advance towards the plaintiff and Security Guard One. 22. The blonde woman moves back towards the entrance to the premises. 23. The Door Security Guards and the man with his hair in a bun appear to extract the plaintiff from Security Guard One's grasp and escort the plaintiff into the forecourt. 24. Security Guard One resumes his position near the line of people at the entrance to the premises. 25. Security Guard One appears to be grinning as one of the Door Security Guards resumes his position on the door. 26. The person wearing glasses can be seen to have moved well away from the fracas. 27. The strangling of the plaintiff by Security Guard One appears to last about 10 seconds. I will refer to the event from when the plaintiff slaps Security Guard One on the back of the head to when the strangling stops as "the first episode". 28. The plaintiff is ushered through the forecourt by the man with his hair in a bun and the remaining Door Security Guard. Security Guard One moves into the forecourt and looks over at the plaintiff who appears to be around four to five metres away at that stage. 29. The Door Security Guard and Security Guard One leave the forecourt area and the plaintiff is spoken to by the man with his hair in a bun. 30. The plaintiff then starts behaving in a bizarre fashion in the forecourt, raising the collar of his shirt and moving in a way which, at times, could be described as staggering. 31. As he pivots and moves around the forecourt, the plaintiff is being observed by the man with his hair in a bun who appears to be about 10 to 15 metres away. One of the Door Security Guards comes and stands near the man with his hair in a bun and also watches the plaintiff. 32. The plaintiff continues to act bizarrely, bouncing at the knees with his hands in front of his body in what might be described as dance-like movements as he moves around the forecourt. 33. The man with his hair in a bun continues to look over in the plaintiff's direction periodically. Occasionally, one of the Door Security Guards comes into frame and stands near the man with his hair in a bun. 34. At one point the plaintiff stops and adjusts his shirt for a few seconds, then raises both arms and places his hands behind his head. 35. Holding his hands behind his head, the plaintiff then walks across the forecourt in the general direction of the man with his hair in a bun. 36. The plaintiff looks very unsteady on his feet and appears somewhat dishevelled. 37. The plaintiff then takes galloping-like steps. He then walks around the forecourt in circles, at times raising his arms. At one point, the plaintiff puts his arms into a boxing like configuration commonly known as 'shaping up'. There are a number of people in the forecourt, but the plaintiff does not appear to directly harass or interact with anybody. 38. The plaintiff continues to move bizarrely and conspicuously around the forecourt. He then moves out onto the street which runs beside the forecourt. He appears to be around 15 to 20 metres from the entrance to the premises at this point. 39. The plaintiff looks to be adopting a boxing/sparring type stance and has some interaction on the street with a person who appears to be the man in black seen earlier. Both appear to raise their arms towards each other as the man in black walks past the plaintiff. However, the view of this is quite obscured, making it difficult to see exactly what is happening. 40. The plaintiff appears to follow the man in black down the street in the general direction of the entrance to the premises and at one point can be seen swinging both arms in a circular windmill-like fashion. 41. The man in black moves out of frame, then comes back into frame, moving towards the plaintiff. The man in black looks to be interacting with the plaintiff. At the same time a young woman, who appears to be the woman in white seen earlier, looks to be restraining the man in black from approaching the plaintiff, dragging the man in black back up the street, moving away from the premises. 42. The plaintiff follows them, still with his arms in a boxing stance. The plaintiff then turns around and walks down the street in the general direction of the entrance to the premises. 43. The blonde woman and the Door Security Guards look on and appear to have noticed what is happening on the street between the plaintiff and the man in black. 44. Security Guards One and Two come into frame and move towards the street at the point where the woman in white is dragging the man in black away. 45. The plaintiff and Security Guards One and Two are walking towards each other on the street. 46. The plaintiff then starts to move backwards, bouncing on his feet in an exaggerated boxing-like movement with his arms shaped up in front of him, as Security Guards One and Two continue to move towards him. 47. As the security guards get closer to the plaintiff, Security Guard One can be seen holding Security Guard Two by his vest from behind, as if to restrain him from approaching the plaintiff. 48. The blonde woman, one of the Door Security Guards and the man with his hair in a bun look on. They appear to be around 15 metres from the plaintiff at that point. 49. Security Guard Two continues to advance on the plaintiff. Security Guard Two then stops and appears to take a step back. The plaintiff then appears to rush towards Security Guard Two. The plaintiff then stops before appearing to make a sharp movement towards Security Guard Two, causing Security Guard Two to step backwards. 50. The plaintiff then advances on both Security Guard One and Security Guard Two and appears to throw a punch at Security Guard One. I cannot tell whether that punch makes contact with Security Guard One. However, Security Guard One flinches and adopts what look to be defensive movements with both arms in response to the punch. 51. By now, nearly all of the patrons near the entrance and on the forecourt are looking on and many are moving towards the area where the plaintiff and the security guards are interacting. 52. After the plaintiff throws the punch at Security Guard One, Security Guard Two advances on the plaintiff and throws a left punch, which I have concluded, made contact with the plaintiff. Nonetheless, the plaintiff remains upright and continues dancing around. Security Guard Two then immediately throws a wild right punch at the plaintiff which does not connect. 53. I will refer to the event commencing with the plaintiff throwing a punch at Security Guard One to when Security Guard Two throws the wild right punch which does not connect as "the second episode". 54. A scuffle then ensues, and within seconds other security guards quickly descend on the scene. Security Guard One also joins in. 55. This aspect of the footage is extremely obscured by people standing between the camera and the unfolding events. 56. Within seconds of the scuffle commencing, the plaintiff can be seen to fall fairly heavily onto the roadway, and it appears that one of the security guards that rushed to the scene falls onto the roadway as well. 57. Clear vision continues to be obscured by patrons watching the events, however, it appears the security guards probably drag the plaintiff up and off the roadway around six seconds after he fell. Cars and buses can be seen to pass over that area soon after the plaintiff is dragged from the roadway. 58. It is very difficult to make out what happens next, given the crowd and a number of security guards who are milling around. However, the plaintiff can be seen through the crowd to fall a second time onto the ground at the edge of the forecourt and a security guard, who it appears may have been holding the plaintiff from behind, also falls with him. The second fall occurred around 30 seconds after the plaintiff got up following the first fall. 59. From what I could see, this second fall did not appear to occur as a result of the plaintiff being punched or knocked to the ground, but rather it appears more likely to have been a product of an ongoing struggle that was going on between the plaintiff and the security guards. 60. I will refer to events commencing with the scuffle after the second episode and concluding with the plaintiff falling a second time onto the ground at the edge of the forecourt as "the third episode". 61. The events constituting the third episode are indivisible. They reflect a course of conduct arising out of and in response to the second episode. The third episode lasted around 40 seconds in total. 62. With the view heavily obscured, the plaintiff's legs can be seen and it is obvious he is on the ground. At one point a security guard appears to be restraining the plaintiff by kneeling beside him and holding the plaintiff's arms. 63. The plaintiff can be seen lifting his arms and trying to get up, but is pushed down by a security guard. 64. After a time, the plaintiff appears to submit. Again, the camera view is obstructed to some extent, but a security guard appears to be kneeling over the plaintiff and holding his shoulders. Another security guard can be seen standing nearby. 65. It is possible that a security guard may have been sitting on the plaintiff at one stage, though it is by no means clear. 66. At one point, the plaintiff is seen to kick his legs and struggle and lift his arms but continues to be held down by a security guard. 67. The blonde woman is seen to come into frame and look in the direction where the plaintiff is being restrained. She appears to be about 10 metres away at that point. 68. A police officer is then seen to arrive. At this point it appears that a security guard may have his foot on the plaintiff's chest. 69. The police officer leans over the plaintiff and appears to speak to the plaintiff. The police officer leans down and takes the plaintiff's arm. 70. The police officer then squats down beside the plaintiff. 71. The view remains heavily obstructed by onlookers, however, the plaintiff can be seen subsequently standing next to the police officer. 72. The density of the crowd does not allow me to say with any certainty what happens next, however, there is no issue that the plaintiff's complaints against the defendants end at the time the police arrive and intervene. 73. I will refer to the restraint of the plaintiff on the ground at the edge of the forecourt commencing after the third episode until the police arrive as "the fourth episode". 74. The fourth episode appears to have lasted something in the order of 10 minutes.

Conclusions Drawn from the CCTV Footage

The impressions and conclusions I have drawn from the CCTV footage are as follows: 1. The venue was crowded with young people. There was obvious scope for patrons and others in the forecourt to be affected by alcohol and conceivably other substances. 2. Consistent with obligations under the Liquor Act and general duties of care, the environment required effective control to avoid risk to the wellbeing of the patrons and those in the area from violent, quarrelsome or otherwise unacceptable behaviour. 3. In that context, the venue seems to have been reasonably well regulated, with a number of security guards on hand and what appears to be close supervision of entry to the premises and activities in the forecourt. 4. The plaintiff's behaviour towards Security Guard One in the lead up to the first episode appears to have been annoying and potentially aggressive. 5. The plaintiff invaded the personal space of Security Guard One during that interaction. 6. Security Guard One appears to have been restrained and measured, up until the time of the first episode. 7. The body language of the person wearing glasses suggests that the plaintiff may have been aggressive, given the way that person moved away during the verbal exchange between the plaintiff and Security Guard One. 8. The plaintiff's act of tapping Security Guard One on the back/shoulder was the type of gesture one might see from people who know each other or are otherwise interacting in a convivial environment. It may have been inappropriate in the circumstances, given the plaintiff's assumed lack of familiarity with Security Guard One, but I did not consider it aggressive, nor does it appear to have been seen that way by Security Guard One. 9. However, the plaintiff slapping or hitting Security Guard One on the back of the head as he turned to walk away was wholly inappropriate and could readily be seen as insulting. It did not appear to me to be forceful or particularly aggressive. Nor did it appear to be a precursor to anything more aggressive. Nonetheless, in that environment and not knowing what had been said by the plaintiff in the lead up, it is an act that may well have been interpreted by Security Guard One as aggressive. 10. The plaintiff's behaviour was certainly provocative. The reaction of Security Guard One in grabbing the plaintiff around the throat was immediate and violent. 11. Whilst the plaintiff's act may have been interpreted as aggressive by Security Guard One, I did not perceive that Security Guard One was in any way acting in self-defence when he grabbed the plaintiff. 12. The footage shows that the plaintiff was moving away when he slapped Security Guard One on the back of the head and my impression was that Security Guard One's response was generated by anger and was a reaction to the plaintiff's behaviour having been unacceptable. 13. Security Guard One, who had a significant physical presence, maintained his hands around the plaintiff's throat certainly long enough for that to have caused alarm and fear on the part of the plaintiff, who was not retaliating. 14. The plaintiff's movements around the forecourt in the aftermath of the first episode were not only bizarre, but had the potential, in my view, to cause concern or alarm amongst some patrons and generate conflict with those who took exception, or otherwise responded, to his conduct. 15. As such, I consider the plaintiff's behaviour in the forecourt represented a legitimate cause for concern for the security guards and it is appropriate, in my view, that the plaintiff was being monitored by them. 16. The potential risks associated with the plaintiff's behaviour are illustrated by his dealings with the man in black who appears to have been aggressive in response to something the plaintiff said or did. 17. Although the interaction with the man in black was happening on the street, it was immediately adjacent to the forecourt and had the potential to impact directly on the wellbeing of the patrons in that area. One can readily envisage a situation where an altercation generated or contributed to by the plaintiff's inappropriate behaviour could escalate to involve others. 18. In those circumstances, I consider it entirely appropriate for Security Guards One and Two to have approached the plaintiff on the street when they did. 19. At that point, the security guards could reasonably be expected to have had the objective of controlling the plaintiff and moving him away from the venue and its surrounds. 20. I am conscious of the fact that in the somewhat rarefied atmosphere of the courtroom, one should not judge, in a theoretical way, the dynamic interactions which were occurring in real time, in circumstances where the security guards did not have the benefit of examining events in hindsight, nor the ability to know just how the plaintiff would react to their intervention. What must have been obvious however, was that the plaintiff appeared to be acting irrationally. 21. It is notable that, in the lead up to the second episode, Security Guard One was attempting to pull Security Guard Two back and away from the plaintiff. My clear impression is that Security Guard Two was motivated to physically engage with the plaintiff and this appears to have been obvious to Security Guard One. 22. The plaintiff's act of advancing on Security Guard One and Security Guard Two certainly had the potential to appear threatening. The plaintiff's movement caused Security Guard Two to pause and move backwards. 23. Whilst I have considered the CCTV closely, I cannot say with certainty whether the punch the plaintiff threw at Security Guard One made contact. However, it was nonetheless a punch and it caused Security Guard One to take defensive action. In the prevailing circumstances, it could readily be seen as an indication that the plaintiff was not deterred by being outnumbered and physically smaller than the security guards. 24. Precisely what happened after the plaintiff threw the punch at Security Guard One is difficult to assess because of the shortcomings in the CCTV footage. 25. As outlined earlier, on my observation, Security Guard Two threw a left punch which I have concluded on my review of the CCTV footage connected with the plaintiff. Security Guard Two then threw a wild right punch at the plaintiff which missed. Had it connected, that punch, in my view, had the very real potential to have caused serious injury, given the physical size of Security Guard Two and the force with which the punch was delivered. 26. It is simply not possible to know precisely the mechanism by which the plaintiff came to fall onto the roadway in the first of the two falls in the third episode. Despite close review of the footage, I have not been able to see that the plaintiff fell as a result of being struck by any blows. It is clear, though, that as the plaintiff fell to the ground, a security guard fell with him. My impression from the CCTV footage is that the plaintiff was knocked or fell to the ground as the security guards tried to bring him under control and apprehend him. 27. Similarly, the plaintiff appeared to be involved in an ongoing struggle with one of the security guards when he fell to the ground on the second occasion during the third episode. The nature of that interaction leads me to again conclude that the security guards were trying to subdue and control the plaintiff when the second fall occurred. 28. As the CCTV footage shows, the security guards eventually got the plaintiff under control and restrained him until the police arrived. To that extent, any risk to the other patrons, to the security guards and indeed to the plaintiff himself, was removed. 29. Again, because of the limitations with the CCTV footage, I am unable to know just how the plaintiff was restrained. Clearly, there were large security guards involved. Whether the plaintiff was sat on, kneeled on, or held down and with what force is not clear. 30. To my mind, given the background events depicted on the footage, once the plaintiff was on the ground, it was prudent that he be kept there. In submissions, it was suggested on behalf of the plaintiff that he should have been placed in a chair until police arrived. However, in my view, given his erratic, irrational and, at times, aggressive antecedent behaviour, no one could predict what might have happened if the plaintiff was allowed up. On what I have seen from the CCTV footage, the security personnel could not have been confident that the plaintiff would not have posed a threat to them, to others and himself were he to be less restrained.

Other Evidence

I turn to consider the other available evidence potentially touching on how one might determine the facts and the issues which divide the parties.
The evidence comfortably establishes that the plaintiff was heavily intoxicated at the time of these events. The plaintiff agreed that he had consumed 10-12 cans of alcoholic cider and accepted that he had taken one Xanax tablet, being a benzodiazepine drug. His behaviour on the CCTV footage is consistent with a high degree of intoxication.
The plaintiff deposed to having no memory of the events in question. That evidence was not challenged and is consistent with various histories recorded in the medical evidence tendered before me.
The reason for the plaintiff's lack of memory is not explained. There is evidence suggesting that the plaintiff may have suffered a brief period of unconsciousness and there is also the intoxication to which I have referred. Whatever be the cause, as I have said, the fact that the plaintiff cannot remember the events was not disputed.
In cross-examination, the plaintiff was directed to the charges laid against him in relation to the events of the evening in question.
The plaintiff admitted pleading guilty to one charge of common assault, one charge of remaining in the vicinity of licensed premises when an excluded person, and one charge of possessing a prohibited drug. He also agreed that as a result of his agreement to plead guilty, another charge of assault was not pursued against him.
The plaintiff agreed in cross-examination that, in entering those pleas of guilty, he was accepting responsibility for the offences in question, although he did say, having watched the video, "I'm starting to think that I'm not the only one to blame".
The plaintiff was asked about the Police Fact Sheet (Fact Sheet) which was provided to the Local Court Magistrate at the time of his guilty pleas. Whilst the plaintiff acknowledged those facts were agreed to by him, it is clear on his unchallenged evidence that he had no recollection of the matters he was agreeing to.
The Fact Sheet, which was admitted into evidence in these proceedings, includes details of exchanges between the plaintiff and Security Guard One during the first episode, in which it is said that the plaintiff was making threatening and abusive statements to the security guard.
The Fact Sheet also indicates that when the plaintiff threw the punch at Security Guard One in the second episode, it connected with the security guard's left chest.
The Fact Sheet details how, in the aftermath of the second episode, Security Guard One and Security Guard Two tried to grab hold of the plaintiff, but inadvertently he was pushed backwards and fell onto the roadway, following which the plaintiff was detained by several security guards until police arrived.
I accept that the Fact Sheet contains admissions made by the plaintiff. As such, the Fact Sheet provides evidence of the facts contained within it. However, that must be tempered by the reality that the plaintiff had no memory of the facts he purported to admit.
In the circumstances, whilst the facts agreed to in the Fact Sheet are evidence to which I must have regard when balancing all of the evidence, I am not bound to those facts, particularly to the extent that they do not accord with the CCTV footage.
The plaintiff was asked about the history by a Dr Peter Ashkar, who he consulted to obtain a medical report in aid of the criminal proceedings brought against him. He agreed he told Dr Ashkar there had been a number of occasions in the past when he had been refused entry to licenced premises because of his state of intoxication. The plaintiff accepted that had caused him to be angry and upset in the past and agreed that the CCTV footage led him to conclude he was upset when refused entry to the premises.
The plaintiff accepted it was possible that because of his level of intoxication he had said to Security Guard One, "[f]ucking cunt. I will knock you out" at or about the time he slapped the security guard on the back of the head.
A friend of the plaintiff, Jessica Fitzsimmons, gave evidence in the plaintiff's case. Ms Fitzsimmons is employed by the solicitors who represent the plaintiff in these proceedings. Ms Fitzsimmons gave evidence that she attended the police station following these events, in the early hours of the morning on 21 April 2017. She described the plaintiff, at that time, as not talking and not explaining what had happened to him. Ms Fitzsimmons said she was shocked by the way the plaintiff looked. She took two photographs of the plaintiff, which are in evidence before me.
Those photographs show the plaintiff to have obvious marks around his face, and his shirt to be extensively torn with blood staining on it. Ultimately, however, given the paucity of evidence, those photographs did not assist me in drawing the factual conclusions urged on behalf of the plaintiff.
Ms Fitzsimmons took the plaintiff by taxi to his parents' house and left him in their care.
The plaintiff tendered an ambulance report which was admitted subject to certain limitations under s 136 of the Evidence Act 1995 (NSW) (Evidence Act). Specifically, the history recorded in that report is not evidence of the facts contained in that history. The ambulance officers were working on the assumption that the plaintiff had suffered head strikes and recorded him as having abrasions over his left eye socket and other parts of his body. The ambulance report confirms that the plaintiff had clearly suffered injury. However, apart from describing the nature and site of those injuries, the report does not enable me to draw any clear conclusions as to the specific way in which the injuries occurred.
As I have said, no other witnesses were called to give evidence by either party. In particular, none of the security guards were called and no explanation was given for that.
The security guards could be expected to be able to give evidence about the events in question, particularly in relation to what the plaintiff was saying at different times and to fill in gaps which arise because of the shortcomings with the CCTV footage to which I have referred.
The plaintiff argues, if only faintly, that an adverse inference ought be drawn against the defendants because the security guards are in the defendants' camp and have the potential to give evidence on areas of controversy.
The Court may well have been assisted by the evidence of the security guards, the blonde woman, and the man with his hair in a bun. However, whilst those witnesses may not be in the plaintiff's camp, the evidence falls well short of establishing that either of the defendants had, or could be expected to have, those witnesses available, and made a decision not to call them.
In the circumstances, I do not draw any adverse inferences against the defendants for not calling oral evidence, though, of course, the failure to call those witnesses could have forensic consequences in the ultimate distillation of the facts I am required to undertake.

Limitation Defence

Before moving to a consideration of whether the defendants are liable for the claims advanced by the plaintiff, it is appropriate to consider a threshold issue arising from a limitation defence raised by both defendants pursuant to s 14 of the Limitation Act 1969 (NSW) (Limitation Act). Section 14 provides, in short form, that an "action is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff" (emphasis added). The section applies to an action founded on tort but does not include an action for damages that relates to personal injury, such actions being separately governed by Division 6 of the Limitation Act.
Leaving aside how one categorises the claims advanced by the plaintiff, the defendants both argue that, to the extent s 14 applies, the plaintiff is precluded from maintaining his claim because the action was not brought until after six years, running from the happening of the events in question on 20 April 2017.
Both defendants accept that the proceedings were commenced by the plaintiff on 19 April 2023, which is within the six-year limitation period. However, they argue that because the Statement of Claim was not served until after the expiration of that six-year period, the claim was not brought within time and is statute barred.
Neither defendant is able to point to any authority supporting that proposition.
The issue therefore is whether the action is brought by the commencement of proceedings or by the service of the initiating process.
"Action" is defined in s 11 of the Limitation Act to include "any proceeding in a court". As a matter of construction, it seems to me the section clearly contemplates that an action is brought by the commencement of proceedings.
In my view, as a matter of terminology, an action cannot be said to be brought by the service of the originating process.
Part 6 rr 6.1 and 6.2 of the Uniform Civil Procedure Rules (2005) make clear that proceedings are commenced by the filing of a Statement of Claim or Summons.
Service of the originating process simply provides the mechanism by which a defendant is notified of the commencement of the action. Rule 6.2(4)(b) requires service of a Statement Claim filed in the District Court to be effected within six months after the date on which it is filed. It does not purport to defer the commencement of proceedings until service is effected. Rule 6.2(5) allows for the commencement of fresh proceedings by filing of another originating process if service is not effected within time.
Section 65 of the Civil Procedure Act 2005 (NSW) deals with retrospective amendment of pleadings and, in certain specified circumstances, forestalls the operation of a limitation period by providing that the amendment is taken to have had effect from the date on which proceedings were commenced.
In my view it is clear, as a matter of statutory construction, that in the application of the Limitation Act, the bringing of an action is synonymous with the commencement of proceedings. Were authority needed to support that construction, it can be found, inter alia, amongst the many cases dealing with claims for extension of a limitation period such as Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, which proceed on the basis that the relevant date upon which an action is brought is considered to be the day when proceedings are commenced.
Accordingly, to the extent that the limitation defence raised by the defendants is relevant to the causes of action advanced by the plaintiff, I reject it.

Application of the Civil Liability Act

Before moving to a consideration and disposition of liability issues it is necessary to consider the application of the Civil Liability Act 2002 (NSW) (CLA) which regulates civil liability in this State.
The plaintiff's claims are seated in causes of action involving trespass to the person. Realistically, the plaintiff advances claims based on the torts of battery in each of the episodes, as well as false imprisonment in the fourth episode. There is no evidence (given the plaintiff's total lack of recollection) of an apprehension of violence that would ground a cause of action founded on assault, independent of battery, in any of the events upon which the plaintiff sues.
Section 3B(1)(a) of the CLA, subject to certain exceptions, excludes from the operation of the CLA intentional acts done by a person with the intent to cause injury. This has various implications, both in terms of liability and the assessment of damages.
Relevantly, for present purposes, Part 7 of the CLA is excepted from the exclusion in s 3B(1)(a). Thus, defences relied upon under s 52, which deal with self-defence, and s 54 which in certain circumstances precludes the recovery of damages recoverable by people who have committed criminal offences, are available in answer to the plaintiff's claim in any event.
Accordingly, in determining the causes of action relied upon by the plaintiff, the enquiry must commence with a consideration of whether there was an intention to cause injury.
It is clear enough that s 3B(1)(a) does not operate by reference to a particular cause of action. Rather, as pointed out by Leeming JA in Croucher v Cachia [2016] NSWCA 132 (Croucher) at [34]-[35], it is necessary to look at the character of the conduct in question. If the intent was to cause injury, the CLA will be excluded. However, if the conduct is merely negligent, s 3B(1)(a) will not be engaged and the CLA will apply in all respects to the determination of the claim.
Notably, "injury" in s 3B(1)(a) is not restricted to personal injury (see State of NSW v Ibbett [2005] NSWCA 445 at [5]-[10] per Spigelman CJ) and will include the non-physical injury associated with trespass to the person.
Accordingly, proof of an intention to injure will trigger s 3B(1)(a) for the purposes of the battery allegations, and proof of an intention to detain will similarly invoke the operation of s 3B(1)(a) for the purposes of the claim for false imprisonment.

Liability

The starting point in the determination of the plaintiff's claims is to consider whether the security guards are liable for the causes of action alleged. If liability is established, the enquiry will turn to whether one or other or both of the defendants are vicariously liable for the acts of those security guards.

The First Episode

Security Guard One's act of strangling the plaintiff in the first episode was so violent and targeted that, in the context of s 3B(1)(a) CLA, I am satisfied it was an act intended to cause injury to the plaintiff.
Notably, Security Guard One did not appear to relent after he seized the plaintiff by the throat, and it took the intervention of others to free the plaintiff from Security Guard One's grasp.
Accordingly, by operation of s 3B(1)(a), save for the prescribed exceptions, the CLA is excluded from the determination of liability for battery arising out of the first episode. In particular, on the liability front, this removes from my consideration the defences of intoxication under Part 6 of the CLA relied upon by the defendants.
In considering whether Security Guard One committed a battery in the first episode, I am guided by the observations of Leeming JA in Croucher, where his Honour said at [21]: "A defendant who directly causes physical contact with a plaintiff will commit a battery unless the defendant proves that the defendant was 'utterly without fault'".
In point of principle, to establish a battery a plaintiff is not required to prove intention and is required to prove no more than physical contact.
This is reinforced by the comments of Leeming JA in Croucher at [24] where his Honour observed that once physical contact is established, to avoid liability the onus rests with the defendant to establish his or her act was without fault or negligence.
Having regard to the CCTV footage, there can be no doubt that Security Guard One made violent physical contact with the plaintiff, thus establishing a prima facie battery and shifting the onus to the security guard to establish that his actions were without fault.
With the defendants calling no evidence, in determining whether Security Guard One was without fault in the first episode, I can only rely on inferences drawn from the evidence that is available.
However, inference only goes so far and, in my view, what is seen on the CCTV footage and what is disclosed in the other evidence does not discharge the onus resting on the defendants to resist a conclusion that Security Guard One committed a battery when he seized the plaintiff around the throat and commenced strangling him.
It is relevant here to consider the defences raised under ss 52 and 54 of the CLA which, as explained earlier, apply to the plaintiff's claim in any event.

Section 52 CLA

Section 52 of the CLA provides: (1) A person does not incur a liability to which this Part applies arising from any conduct of the person carried out in self-defence, but only if the conduct to which the person was responding- (a) was unlawful, or (b) would have been unlawful if the other person carrying out the conduct to which the person responds had not had a mental health impairment or a cognitive impairment at the time of the conduct. (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary- (a) to defend himself or herself or another person, or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or (c) to protect property from unlawful taking, destruction, damage or interference, or (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them. (3) This section does not apply if the person uses force that involves the intentional or reckless infliction of death only- (a) to protect property, or (b) to prevent criminal trespass or to remove a person committing criminal trespass.
In terms of s 52(1)(a), I am satisfied that the plaintiff's conduct in slapping the security guard on the back of the head was unlawful and constituted common assault pursuant to s 61 of the Crimes Act 1900 (NSW) (Crimes Act), consistent with the guilty plea entered by the plaintiff in the Local Court.
I am also satisfied that Security Guard One was responding to the plaintiff's unlawful conduct.
However, on the evidence before me, I am not satisfied that Security Guard One was acting to defend himself when he grabbed the plaintiff around the throat. In coming to that conclusion, I have had regard to the following matters: 1. Whilst the plaintiff unlawfully slapped Security Guard One on the back of the head, this did not involve forceful contact, but was more reflective of a rude or disrespectful action. 2. At the point where the plaintiff slapped Security Guard One on the back of the head, the plaintiff was in the process of moving away. 3. At the point where Security Guard One grabbed the plaintiff around the throat, the plaintiff was not advancing on Security Guard One and, objectively on what I have seen, did not appear to be a threat to the security guard. 4. My clear impression from the CCTV footage is that, in grabbing the plaintiff around the throat, Security Guard One was responding to the plaintiff's actions but was not acting to prevent any further contact by the plaintiff.
Accordingly, on all the evidence, I find that when he grabbed the plaintiff by the throat, Security Guard One was not acting in self-defence but rather, was acting out of anger in the discharge of his functions to maintain order and control in and around the premises.
In submissions, the first defendant canvassed common law principles of self-defence as well as the statutory formulation under s 52 of the CLA. If there be a relevant difference in this case between the common law and s 52, on the findings I have made in relation to the motivation of the actions of Security Guard One, self-defence would not run in either instance.
In those circumstances, I do not consider there was any lawful justification for the battery Security Guard One committed on the plaintiff.

Section 54 CLA

This leaves for consideration the application of s 54 to the first episode.
Section 54 CLA provides: (1) A court is not to award damages in respect of liability to which this Part applies if the court is satisfied that - (a) the death of, or the injury or damage to, the person that is the subject of the proceedings occurred at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence, and (b) that conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage. (2) This section does not apply to an award of damages against a defendant if the conduct of the defendant that caused the death, injury or damage concerned constitutes an offence (whether or not a serious offence). Note - Sections 52 and 53 can apply to prevent or limit recovery of damages even though the defendant's conduct constitutes an offence. (3) A serious offence is an offence punishable by imprisonment for 6 months or more. (4) This section does not affect the operation of the Felons (Civil Proceedings) Act 1981. (5) This section operates whether or not a person whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned.
For the reasons outlined earlier, I am satisfied that the injury suffered by the plaintiff occurred following conduct by him which constituted a serious offence, namely, common assault within the meaning of s 61 of the Crimes Act. I am also satisfied that such conduct contributed materially to the injury suffered by the plaintiff as a result of the battery by Security Guard One, which occurred in response to the plaintiff's unlawful conduct.
However, in my view s 54(2) of the CLA operates to negative the operation of s 54 given the conduct of Security Guard One which caused the plaintiff's injury constituted an offence.
In that regard, I consider the actions of Security Guard One also constituted a common assault within the meaning of s 61 of the Crimes Act as well as an offence pursuant to s 37 of the Crimes Act, which arises as a result of the deliberate act of choking or strangling the plaintiff.

Conclusion

It follows in those circumstances that the plaintiff has established that Security Guard One committed actionable battery in the circumstances of the first episode.

The Second Episode

I turn to consider whether the plaintiff has established a cause of action arising out of the second episode.
In line with my earlier discussion of the CCTV footage, I find that after the plaintiff threw a punch at Security Guard One, Security Guard Two then threw a left punch which struck the plaintiff somewhere around the chest but did not cause the plaintiff to fall to the ground.
This was physical contact which constituted a battery by Security Guard Two. As outlined earlier, a second right punch thrown by Security Guard Two did not connect. The second punch might potentially have amounted to an assault, although again there is no evidence that it generated fear on the plaintiff's part and the evidence of the plaintiff's intoxication mitigates against me drawing any inference that it did.
I am satisfied that Security Guard Two intended to cause injury to the plaintiff when he threw the first left punch. In coming to that conclusion, I have regard to the fact that, in the lead up to the interaction between Security Guard Two and the plaintiff, Security Guard One was attempting to restrain Security Guard Two. Further, the force of the wild right punch by Security Guard Two which immediately followed his left punch but missed the plaintiff is, in my view, entirely consistent with Security Guard Two intending to hurt the plaintiff when he engaged with him.
Accordingly, as with the first episode, s 3B(1)(a) of the CLA operates to exclude certain parts of the CLA, including the defences of intoxication, when considering whether Security Guard Two is liable for the prima facie battery of the plaintiff in the second episode.

Section 52 CLA

As with the first episode, I am required to consider s 52 of the CLA and whether Security Guard Two was acting in self-defence.
My conclusions drawn from the CCTV footage is that the left punch by Security Guard Two was an extension of the way he approached the plaintiff. It is my firm impression, fortified by the actions of Security Guard One holding him back, that Security Guard Two had resolved to physically confront the plaintiff prior to the plaintiff throwing the punch at Security Guard One. Although the plaintiff had not struck Security Guard Two, self-defence can operate, in the terms of s 52 of the CLA, when a person is defending another. It did not appear to me however, that Security Guard Two was attempting to defend Security Guard One. The plaintiff's punch directed at Security Guard One was clearly unlawful, however, it was isolated in the sense that it was not followed by more punches.
I have concluded, from the CCTV footage, that Security Guard Two had most probably resolved to physically respond to the plaintiff's unacceptable antecedent behaviour. I have formed the view that when the plaintiff threw the punch at Security Guard One, the opportunity was taken by Security Guard Two to respond in kind. The wild right punch which missed did not appear to be defensive in any sense. The conclusion I have reached is that this was more of a physical altercation and not a situation where Security Guard Two was acting in self-defence.
Of course, it is possible that Security Guard Two had a different subjective intention than that which I have discerned. However, neither he nor anyone at the scene gave evidence to discharge the burden of invoking the defence under s 52. I certainly do not infer self-defence from what I saw on the CCTV footage.
In the circumstances, I am not satisfied that self-defence is made out. As with the actions of Security Guard One in the first episode, there is no relevant distinction between common law concepts of self-defence and the application of s 52 of the CLA to the actions of Security Guard Two in the second episode.

Section 54 CLA

Turning then to the application of s 54 of the CLA. Again, as with the first episode, I am satisfied that the plaintiff committed the serious offence of common assault when he threw the punch at Security Guard One. Contact is not necessary to make out that offence.
Likewise, I am satisfied that any injury suffered by the plaintiff in the second episode occurred following that serious offence and that the plaintiff's conduct made a material contribution to such injury.
Again though, as with the actions of Security Guard One in the first episode, in punching the plaintiff in the second episode Security Guard two committed a common assault, thus engaging s 54(2) of the CLA and nullifying the operation of s 54(1).

Conclusion

Accordingly, the plaintiff has established an actionable battery by Security Guard Two in the second episode.

The Third Episode

The third episode involved a struggle between various security guards and the plaintiff which resulted in the plaintiff and security guards falling to the ground on two occasions.
Whilst the plaintiff's submissions, aided by a written summary of the CCTV footage, contended that the security guards assaulted and punched the plaintiff during the third episode, despite close inspection, I could not see that.
Rather, I have concluded from what I can make of the CCTV footage that the security guards were attempting to apprehend and restrain the plaintiff. I consider that to have been a reasonable response by the security guards to the risk the plaintiff presented in circumstances where, in a relatively short space of time, the plaintiff had assaulted two security guards, had behaved bizarrely and irrationally, had made a nuisance of himself in the forecourt adopting what might be seen as an aggressive stance, and had become involved in a potentially violent exchange with the man in black.
The conviction in the Local Court and the CCTV footage of the plaintiff's earlier exchanges with Security Guard One after being excluded from entering the premises strongly suggest the plaintiff remained in the area after being requested to leave. Allowing the plaintiff to continue wandering around the forecourt in those circumstances could, in my view, readily be seen as failing to deal with a tangible risk that the plaintiff would continue to act violently and/or provocatively, thereby potentially endangering the security guards, other patrons and the plaintiff himself.
The events which followed the third episode demonstrate that the security guards apprehended the plaintiff and held him until the police arrived. It is reasonable, if not compelling, to infer that the struggle which was the third episode, reflected the security guards trying to bring the plaintiff under control. The fact that the plaintiff was struggling and fell to the ground along with security guards supports the proposition that he was resisting, or at the very least, not cooperating with the security guards' attempts to control his behaviour.
In laying hands on the plaintiff during the third episode, the security guards were, in accordance with the principles earlier outlined, prima facie committing a battery. From what is seen on the CCTV footage, in my view, no question of self-defence on the part of the security guards arises in the third episode.
The defendants argue that the actions of the security guards were, nonetheless, lawful. Once prima facie battery is established, as it has been here, the onus shifts to the security guards to establish that the physical interference with the plaintiff was lawful. In justifying the actions of the security guards, the defendants rely, inter alia, on ss 100 and 231 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA).
Section 100 of LEPRA provides: Power of other persons to arrest without warrant (cf Crimes Act 1900, s 352) (1) A person (other than a police officer) may, without a warrant, arrest a person if - (a) the person is in the act of committing an offence under any Act or statutory instrument, or (b) the person has just committed any such offence, or (c) the person has committed a serious indictable offence for which the person has not been tried. (2) A person who arrests another person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law.
Section 231 of LEPRA provides: Use of force in making an arrest A police officer or other person who exercises a power to arrest another person may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest.
There is, in my view, much force in the proposition that the security guards were entitled to arrest the plaintiff. On my findings, at the time of the third episode the plaintiff had committed common assaults on Security Guard One in both the first and second episodes. From the CCTV footage, I infer, for the reasons outlined, that the security guards were endeavouring to control and arrest the plaintiff and hold him until the police arrived. I consider that the elements of s 100(1)(b) LEPRA were satisfied and the arrest was compliant with the requirements of that section. I might add that, whilst the security guards did not convey the plaintiff to an authorised officer pursuant to s 100(2), [2] that was obviously not reasonably practicable at the time the plaintiff was being arrested, and the need and ability to do so was obviated once the plaintiff was arrested by police, with the evidence establishing that the police assumed responsibility for the arrest of the plaintiff after they attended the scene. In my view, the arrest by the security guards and the associated physical contact with the plaintiff during the course of the third episode were lawful.
As I have said, the third episode showed an ongoing struggle to bring the plaintiff under control. Despite the submissions made on behalf of the plaintiff, I saw nothing suggesting excessive force by the security guards and, for the purposes of s 231 LEPRA, I consider the force that was used to control the plaintiff was reasonably necessary.

Conclusion

It follows on my findings that the events making up the third episode and the laying of hands on the plaintiff by the security guards were lawful or, to use the words of Leeming JA in Croucher, were "utterly without fault", such that no battery was committed by the security guards in the process.
For those reasons, in my view, the plaintiff cannot succeed in his claim for damages in respect of the events which make up the third episode.

The Fourth Episode

The plaintiff argues that there was an unlawful imprisonment and a battery committed by the security guards in what I have called the fourth episode.
The fourth episode represents the aftermath of the arrest undertaken in the third episode. The plaintiff argues that in holding him down the security guards committed a battery and in detaining him against his will the security guards committed the tort of false imprisonment.
For the reasons outlined in relation to the third episode, in my view the security guards were acting in accordance with the authority provided for under s 100 of LEPRA. Accordingly, to the extent that the security guards laid hands on the plaintiff to restrain him until the police arrived, their actions were lawful and, as with the third episode, in my view, there was no battery.
Otherwise, there is no doubt that the plaintiff was restrained and deprived of his liberty. To use the parlance of the tort, he was clearly "imprisoned". As such, the plaintiff has established false imprisonment at a prima facie level. It then falls to those who imprisoned the plaintiff to show lawful justification: Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48 at [140].
For the reasons already canvassed, I have concluded that the arrest was lawful. The restraint of the plaintiff was part of the arrest in the sense that the security guards held him down, understandably in my view, while they awaited the arrival of the police. In terms of s 231 LEPRA, I infer in the circumstances that the plaintiff was restrained to prevent his escape and to avoid the risk he posed if he were released.
Again, my ability to assess exactly how the restraint was effected is compromised by the absence of any first hand evidence and the quality of the CCTV footage film. That, however, is all I have to go on. Whilst, if it occurred, a security guard placing a foot on the plaintiff to restrain him could readily be seen as entirely lacking in decorum, nothing I saw suggested that the force used to restrain the plaintiff, by whatever means, was excessive. At times, the plaintiff is seen to struggle to get up and is held down. However, I did not see any violence towards the plaintiff in that process and, when compliant with the restraint, there is little physical movement to be seen.
In all the circumstances and having regard to the behaviour of the plaintiff which led the security guards to effect his arrest, I am satisfied that, in accordance with s 231 LEPRA, reasonable force was used to restrain the plaintiff and prevent his escape.

Conclusion

It follows that there was no battery and no false imprisonment, and as such, the plaintiff has not made out a claim for damages as a result of the fourth episode.

Vicarious Liability

On my findings and conclusions, the plaintiff has established a liability on the part of Security Guards One and Two respectively, for the batteries constituted by the first and second episodes. The question then arises as to whether one or both of the defendants are vicariously liable for the tortious acts of those security guards.

Dual Vicarious Liability

I accept the submission that the common law does not recognise the concept of dual or joint vicarious liability in the prevailing circumstances. [3] Accordingly, if there is to be vicarious liability for the tortious acts of the security guards, it will rest with one or other of the defendants.

The First Defendant

The claim for vicarious liability as against the first defendant is premised on the proposition that the first defendant was jointly providing security services with the second defendant and exercised such a degree of control over the events occurring or was capable of exercising such control so as to render the first defendant vicariously liable for the acts of the servants or agents of the second defendant.
No authorities were provided in support of those propositions. The plaintiff argues that the blonde woman and the man with his hair in a bun were representatives of the first defendant based on the CCTV footage which, it is said, shows them to be part of the security arrangements which were in place.
There is simply no evidence that the blonde woman was associated with the first defendant. It is possible that she was, but there is no basis upon which I could affirmatively draw that conclusion. It is equally possible that she was associated with the second defendant. Any conclusion I draw in terms of the roles and responsibilities of the blonde woman would be unsound and based only on supposition and speculation.
The man with his hair in a bun was, however, arguably associated with the first defendant, given that he was wearing clothing bearing the name of the first defendant's business. Nonetheless, that is as far as the evidence goes. It does not establish the man with his hair in a bun was an employee or even an agent of the first defendant. The man with his hair in a bun did, from time to time, become involved in activities which appear related to general security. He intervened when Security Guard One commenced strangling the plaintiff. He monitored the plaintiff as he moved about the forecourt, and he observed the goings-on as they unfolded.
No claims are advanced against the first defendant that it should have, in its own right, taken some steps to protect the plaintiff. Rather, the claim is based entirely on vicarious liability. Again, even assuming I was persuaded that the man with his hair in a bun was an employee of the first defendant, and I am a long way from that, there is simply no evidence upon which I could conclude that he was controlling the activities of the security guards. Indeed, as I see it, the evidence would tend to suggest he was not. Whatever his role was, the evidence allows me to say little more than the man with his hair in a bun had a presence on the premises and played some role along with the security guards, but probably independently of them.
The concept of vicarious liability in this context was discussed by the Court of Appeal in Day v Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250 at [14], where Leeming JA, drawing on established authority, pointed out that as the law stands, the distinction between independent contractors and employees is a "basic proposition" and a "central conception" of the law related to vicarious liability.
More recently, the High Court in Bird v DP (a pseudonym) [2024] HCA 41 (Bird) reaffirmed the proposition that the common law of Australia requires a relationship of employment as a necessary precursor to a finding of vicarious liability. [4]
I make the observation that in submissions the plaintiff spoke of vicarious liability of the first defendant for the acts of servants and agents. As the High Court made clear in Bird, liability on the part of a principal for the acts of an agent is not a species of vicarious liability. In any event, there is no evidence that Security Guards One and Two were acting as the legal agents of the first defendant.
In my view, there is no basis for a finding of vicarious liability on the part of the first defendant in respect of Security Guards One and Two and thus no basis is established for any liability on the part of the first defendant for the batteries committed by those security guards.
For those reasons the plaintiff's claim against the first defendant must fail.

The Second Defendant

As outlined earlier, it was common ground that the security guards can be treated as employees of the second defendant for the purposes of determining vicarious liability.
Accordingly, there is a potential basis for a finding of vicarious liability on the part of the second defendant. The determination of whether the second defendant is vicariously liable will turn on whether those things done by Security Guards One and Two come within the scope of their authority, either being acts they were employed to perform, or acts which were incidental to that employment. As was explained by Basten JA in Zorom Enterprises Pty Ltd v Zabow & Ors [2007] NSWCA 106 (at [21]-[24]), an employer is liable for unauthorised acts of its employees if they are properly construed as a mode, albeit an improper mode, of doing an authorised act.
It can be accepted that, as part of their duties, Security Guards One and Two had responsibility for maintaining order in and around the premises. Consistent with general duties of care and the prevailing legislation governing the conduct of licenced premises, that involved controlling potentially unruly or intoxicated people. [5]
I have come to the conclusion on the evidence before me, that when Security Guard One strangled the plaintiff, he was in the course of performing the authorised act of controlling unacceptable and unruly behaviour. For obvious reasons, it was not acceptable and potentially incendiary for patrons to assault security guards or anyone else on the premises. In exercising control over, and admonition of, the plaintiff's behaviour, perhaps tinged with anger born of his patience being tried and being slapped by the plaintiff, I consider that Security Guard One exercised his authorised functions in an unauthorised way. It cannot be said when he assaulted the plaintiff that Security Guard One was off on a frolic of his own, unrelated to the functions he was engaged to perform. In my view, the second defendant is vicariously liable for the battery committed by Security Guard One in the first episode.
Likewise, I have concluded on the evidence before me that, when he advanced on the plaintiff, Security Guard Two was in the process of seeking to control the plaintiff and respond to the unacceptable behaviour described earlier. Clearly, it was within the ambit of their authority that the security guards take some steps to control the plaintiff at that point. Equally clearly, Security Guard Two's response was in the execution of that authority. However, in committing a battery of the plaintiff in circumstances, where, as I have found, Security Guard Two was not acting in self-defence, nor any other lawful basis, his actions were an unauthorised means of performing his functions. Thus, as with the first episode, the tort committed in the circumstances surrounding the second episode was an act for which the second defendant is vicariously liable.
Accordingly, there will be judgment in favour of the plaintiff against the second defendant.

General Observations

The plaintiff accepts that the separate torts of battery and false imprisonment which he asserts require separate assessments of damages.
The plaintiff advances a claim for ongoing economic loss of $30,000 gross per annum for the balance of his working life. As I understand it, a claim for loss of income to date is also advanced and this is on the basis of some loss of opportunity, however, that is not quantified. The plaintiff makes no claim for past out-of-pocket expenses, but he claims buffers of $10,000 for future attendances on a general practitioner and $20,000 for psychological treatment, details of which are not explained or particularised. He seeks interest on those damages.
Having acknowledged the need to delineate between each of the causes of action asserted, the plaintiff does not do so, but says that his losses are cumulative.
The plaintiff contends that general damages for false imprisonment would be in the order of $50,000. He does not quantify general damages for the batteries he asserts. Otherwise, the plaintiff advances a claim for aggravated and exemplary damages. Again, they are unquantified.
I derive little assistance from the way the plaintiff's claim for damages is advanced. As will be seen, I also get little assistance from the medical evidence in the plaintiff's case.
The defendants argue that the problems which form the basis of the plaintiff's claim for damages are seated in a pre-existing history of substance abuse and psychological problems. They contend that the plaintiff's evidence establishes an increase in earnings or earning capacity since the incidents in question. The defendants assert that the evidence does not establish a brain injury. Finally, they argue that the plaintiff has not established any basis for an award of aggravated or exemplary damages.

Assessment

I turn then to consider assessment of the damages for which the second defendant is vicariously liable.
The plaintiff advances an expansive claim for damages, alleging a traumatic brain injury, head injury and primary psychiatric injury, along with various physical injuries including injury to the right elbow, the right iliac crest, the left side of the chest, the left shoulder, hand and elbow.
The sequelae of the plaintiff's injuries are said to include loss of memory and depression.
There is very limited medical evidence before me. The second defendant tendered a report of Dr Ashkar dated 27 September 2017, which was a medical report relied upon by the plaintiff in the criminal proceedings he faced following the events in question.
The plaintiff accepted in cross-examination that he gave Dr Ashkar a history of long-term problematic drug use and heavy alcohol consumption.
The plaintiff agreed he told Dr Ashkar there had been a number of occasions before the night in question where he had been refused entry to licensed premises because of his state of intoxication. He agreed he had felt angry and upset on being refused entry to licensed premises in the past.
The plaintiff candidly accepted that he was embarrassed by what he saw on the CCTV footage. The events in question had caused the plaintiff to reassess his health and to seek treatment in the realisation that his health problems were impacting adversely on him. The plaintiff agreed that since the incident he has dramatically reduced his alcohol consumption and finally saw doctors about his long-term problems, including issues with his mental health.
In terms of his background, the plaintiff agreed he had dropped out of university and other tertiary education. He accepted he had not finished his university education because the effects of his drug use had made him lazy and not willing to complete his studies. He had, however, completed one course, being a Certificate IV in web design.
Until a month before the events in question, the plaintiff was working for Opal as a call centre operator. He did not utilise his qualifications in web design when working for Opal. Ms Fitzsimmons gave evidence that she had worked with the plaintiff at Opal. She had, on occasion, sought his assistance and observed him to be very good with the software program.
The plaintiff agreed he had social anxiety issues prior to the incidents the subject of these proceedings as well as issues with alcohol misuse and depression, and that he had suffered from social anxiety at school. However, he rejected the proposition that these problems made things difficult in terms of socialising with others.
Dr Ashkar concludes that the plaintiff had a long-standing history of emotional/psychiatric difficulties (predominantly anxiety and depression) which had remained largely untreated and/or inadequately treated throughout his life. Dr Ashkar diagnosed Major Depressive Disorder with anxious distress with vulnerabilities in his personality predisposing the plaintiff to emotional/psychiatric difficulties, and impulsive and poorly controlled behaviours. Dr Ashkar concluded that these vulnerabilities likely involve a combination of inherited/genetic and environmental/social factors. Dr Ashkar saw the plaintiff's mental health problems as being a significant factor in the substance abuse that led to the offences for which the plaintiff had pleaded guilty.
The only report of any substance relied upon by the plaintiff in support of his claim is the report of Dr Delcourt, neurologist, dated 27 November 2023. Dr Delcourt was reporting to Dr Mirpuri, a general practitioner attached to the Myhealth Medical Centre at Meadowbank. Notably, in his letter referring the plaintiff to Dr Delcourt, Dr Mirpuri notes that the plaintiff suffered from depression, social withdrawal and forgetfulness.
Dr Mirpuri in that referral also refers to the CCTV footage showing the plaintiff being punched in the head several times and having struck his head on the ground twice. I do not know whether that was Dr Mirpuri's observation or what he was told. However, as my earlier summary shows, I did not observe those events on my viewing of the footage.
Dr Delcourt's report was admitted into evidence subject to a limitation under s 136 of the Evidence Act, namely, that matters of history contained within the report are not evidence of the facts upon which that history is based. Dr Delcourt records that the plaintiff suffered a traumatic brain injury in April 2017. However, it is not apparent that the doctor comes to that conclusion on the basis of any objective clinical findings, and it appears more likely to be a history upon which the doctor proceeded. Dr Delcourt records the plaintiff to have decreased drive and energy. She notes that the plaintiff had remained off work and was secluded at home for about three years following the incident in question but had started working as a forklift driver in a warehouse in the early part of 2023.
Dr Delcourt notes that the plaintiff drives but has problems with memory and finds it difficult to think. The plaintiff did not describe any headaches to Dr Delcourt, although he did have some neck pain and back pain. Dr Delcourt records that the plaintiff's MRI scan of his brain was normal.
On the face of it, Dr Delcourt does not appear to be familiar with the prior history of psychological disturbance as evidenced in the report of Dr Ashkar, and proceeds on the basis that the plaintiff suffered depression and anxiety following a traumatic brain injury. Dr Delcourt was unable to say whether there was short-term memory loss resulting from the plaintiff's injuries and psychological problems, and indicated that further assessment would require neuropsychological testing. Dr Delcourt saw depression as the main issue for the plaintiff. She recommended that the plaintiff be referred to a psychologist for counselling.
Also included in the medical records tendered by the plaintiff is a medical certificate issued by Dr Jiang of the East Killara Medical Practice dated 22 April 2017. Dr Jiang records that the plaintiff could not remember details of the fight on 20 April 2017. He records a brief loss of consciousness and clinically observed bruises and abrasions on the left cheek along with various other physical injuries. Dr Jiang advised the plaintiff to return if symptoms worsened.
The plaintiff also tendered a clinical entry showing a consultation with a general practitioner, Dr Bowditch, in May 2017 in which the plaintiff complained of rib pain. However, that evidence does not provide any useful guidance as to the cause, diagnosis, and prognosis in respect of those complaints.
Otherwise, the plaintiff tendered a report of Ida Soghomonian, psychologist, dated 6 February 2018. That report details treatment for mood disorders and alcohol overuse following referral from the plaintiff's GP in May 2017. It records no complaint of the incident the subject of these proceedings. Ms Soghomonian notes improvement in the plaintiff's state of mind. She indicates that the plaintiff had been undertaking further studies to improve employability and had obtained a forklift licence. Ms Soghomonian also records that following Dr Ashkar's recommendations, the plaintiff had commenced having pharmacological treatment for Major Depressive Disorder, supported by Dr Bernadi, psychiatrist. Ms Soghomonian makes no reference to any head or brain injury.
A report of Dr Bernardi dated 21 December 2017 was tendered by the second defendant. It records that the plaintiff was taking medication in the form of Zoloft. Dr Bernardi talks of social anxiety which she says probably predates the alcohol misuse and depression. She says nothing about the subject incident or any head injury.
In giving his evidence, the plaintiff complained of ongoing problems remembering things which he says impeded his return to study. He gave evidence that he commenced working as a forklift driver in 2018. Prior to that, he said he worked at Bingo Australia as an information technology technician. However, that was not successful "because of mental problems" which he said he did not experience prior to the accident. The plaintiff said he is now doing delivery work because he finds it a bit easier mentally than driving a forklift.
The plaintiff said he was quite sociable prior to the accident but since then, not so much. He gave evidence that he never goes out and only has one friend. This lifestyle change commenced, he said, slowly after the events in question. The plaintiff said he takes medication for anxiety and depression. Whilst the plaintiff said that he commenced taking medication subsequent to the incident in question, based upon the evidence of Dr Ashkar referenced above, along with concessions made by the plaintiff, it is tolerably clear that there were, not insignificant, pre-existing psychological problems.
The plaintiff gave evidence that he was earning around $50,000 gross per annum prior to the subject accident and believed his current earnings were in the order of $60,000 or $70,000 per annum.
The chronology of post-injury employment is not easy to distil from the plaintiff's evidence. As outlined, Dr Delcourt records a period of around three years out of the workforce following the subject incident, however, it seems fairly clear that was not an accurate history.
There are limited financial records available to help me. What I do have shows that in the year ending 30 June 2015, the plaintiff earned a gross income of $30,432. In the 2016 financial year, the plaintiff's gross income was $50,059 and, in the year ending 30 June 2017 (encompassing the subject events on 20 April 2017), his gross income was $30,095.
In the 2018 financial year, according to the plaintiff's notice of assessment, his income was $7,556 and in 2019 it was $38,776.
By the financial year ending 30 June 2020 the plaintiff's income was up to $46,798, however, in the 2021 financial year it was again down to $28,452 before reducing further to $18,432 in the 2022 financial year. The records indicate that the plaintiff's earnings for the year ending 30 June 2023 were $23,085.
The plaintiff's 2024 tax return shows gross income of $63,584 which is not inconsistent with the plaintiff's evidence as to his current earnings.
Accordingly, on the face of it, there was a reduction in the plaintiff's income in the financial years immediately following the accident, and generally reduced earnings thereafter until the 2024 financial year.
There is no evidence before me in relation to the extent and cost of medication taken by the plaintiff prior to the subject incident nor the cost of medication taken after the events in question. The plaintiff's acknowledgment of pre-existing emotional problems and his evidence of seeking assistance as a result of the realisation that he needed help clearly clouds the picture as to whether the problems he has been treated for since the events in question are simply a manifestation of pre-existing problems. Notably, nothing in the treating psychological or psychiatric evidence suggests any connection between the plaintiff's problems and the events the subject of his claim in these proceedings.
The plaintiff was not challenged on his evidence that his problems with memory have been worse since the subject incident, nor that he has become more reclusive. As I have said, on the plaintiff's account of things, he has had to look for delivery work as a result of his ongoing memory issues.
I formed a favourable impression of the plaintiff. He was obviously upset at times, though he appeared to do his best to answer questions honestly without any colour of self-interest. Nonetheless, at the end of the day, I simply do not have any evidence upon which to draw any conclusions or make any meaningful assessment of whether there has been an impairment of the plaintiff's earning capacity as a result of the subject events and, if so, to what extent. Whilst it is true that there has been a reduction in the plaintiff's earnings following the events in question, I have no evidence to establish cause-and-effect, having regard to the significant pre-existing problems.
Similarly, I have no evidence establishing a need for any ongoing medical treatment in the face of a clear history of pre-existing problems.
I have no evidence that establishes the plaintiff suffered a traumatic brain injury and no evidence to conclude that his psychological problems have been worsened by the events in question.
Otherwise, my observation of the CCTV footage would not lead me to conclude, without more, that the first episode caused the plaintiff any ongoing physical problems.
Similarly, my observation of the second episode, which involved a strike to the chest area, with the plaintiff remaining upright, does not, of itself, suggest the potential for significant physical injury.
It is trite to say that the plaintiff bears the onus of proving his claim for damages. Speculation and supposition cannot substitute for evidence. Other than an entitlement to general damages, for the reasons I have outlined, the plaintiff has not established an entitlement to any other head of damage.

General, Aggravated and Exemplary Damages

The assessment of general damages is an evaluative process, sourced in the facts and circumstances of the particular case. General damages are compensatory in nature and are not dependent on physical injury.
The assessment in the present case is clouded by the plaintiff's lack of recollection and perhaps by his level of intoxication at the time.
Nonetheless, the plaintiff was conscious and sentient at the time of these events. In the circumstances I assess general damages having regard to the objective evidence and reasonable inferences available to me.
The first episode, as I have said, involved violent physical contact by Security Guard One. The plaintiff was clearly not expecting the response his actions caused and was moving away at the time. Inevitably the strangling must have caused pain and discomfort, but more particularly I consider it would have caused fear and distress in the plaintiff who was clearly physically dominated by Security Guard One. It was only after the intervention of others that the plaintiff got free.
Feelings of embarrassment, insult and humiliation are subjective matters potentially arising in the circumstances but cannot be elevated beyond that. However, the nature of the battery in the first episode was such that it can reasonably be assumed to have alarmed and affronted the plaintiff.
In all the circumstances I assess general damages for the first episode at $20,000.
As the plaintiff's claim is relevantly unregulated by the CLA, it is open to him to advance, as he does, claims for aggravated and exemplary damages.
It is trite that aggravated damages are compensatory and exemplary damages are punitive in nature.
In both instances of the batteries perpetrated in episodes one and two, the plaintiff's immediate antecedent behaviour was a significant provocative factor.
The authorities make it clear that aggravated damages look to compensate injury to feelings caused by the wrongdoing to the extent not otherwise compensated. This can occur where the wrongdoing goes beyond "ordinary human fallibility" as discussed by Hodgson JA in State of NSW v Riley (2003) 51 NSWLR 496 [2003] NSWCA 208 at [131] (Riley).
Of course, double compensation must be avoided, however at the heart of aggravated damages is the additional insult and hurt to feelings caused by the way in which the damage was suffered and can include deliberate abuse of the position or responsibility vested in the wrongdoer.
It was said in Riley (at [133]) that aggravated damages may operate to bring the damages up to the upper end of the available range.
As I have said, in the present case, in assessing damages for the first episode I am limited to objective conclusions in relation to the insult and hurt to the plaintiff's feelings. As the evidence stands, I do not consider the plaintiff establishes a foundational basis for aggravated damages in addition to the award I have made.
Having regard to the prevailing circumstances leading to the battery committed in the first episode, I am not satisfied that Security Guard One's actions amounted to a "conscious wrongdoing in contumelious disregard of another's rights" (Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 at [14]). In my view, this is not an occasion for the imposition of punitive exemplary damages in relation to the first episode.
The second episode involved less violent contact, but, nonetheless, was an unlawful physical trespass to the person. Again, in the evaluative exercise I must perform, I assess general damages for the second episode at $5,000.
Having regard to the principles to which I have referred and the circumstances surrounding the second episode, I do not consider the second episode attracts an award of aggravated or exemplary damages.

Contingent Assessment

If, on the contingency that I am wrong in my conclusion that the third episode and the fourth episode are beyond remedy, I would, for the reasons outlined, be unable to discern any basis on which to conclude that either event caused the plaintiff to suffer damage other than general damages.
However, as that contingency would necessarily involve a departure from the factual premise of my conclusions, it is not possible to make any meaningful assessment of those general damages and related claims for aggravated and exemplary damages.

Summary of Damages

Accordingly, I assess damages against the second defendant as follows: The First Episode General Damages $20,000 The Second Episode General Damages $5,000 Total $25,000

Interest

The plaintiff seeks pre-judgment interest on damages. I will hear the parties on interest if the amount cannot be agreed.

Costs

Costs will follow the event in respect of the disposal of the plaintiff's claim against the first defendant.
In the absence of agreement, I will hear the plaintiff and second defendant in relation to costs and how I should approach the Uniform Civil Procedure Rules 2005 (NSW) Part 42, r 42.35.

Orders

In line with these reasons, I make the following orders: 1. Judgment in favour of the first defendant. 2. The plaintiff is to pay the first defendant's costs. 3. Judgment in favour of the plaintiff against the second defendant in the sum of $25,000 plus such amount agreed or determined to be payable in respect of pre-judgment interest. 4. Entry of judgment against the second defendant is deferred to allow the parties the opportunity to address the question of pre-judgment interest. 5. The question of costs as between the plaintiff and the second defendant is reserved. 6. In the absence of agreement, I will hear the plaintiff and the second defendant as to pre-judgment interest and costs.

Endnotes

See Tcpt pp 23 and 145.
Under s 3 LEPRA "authorised officer" includes a Magistrate, the registrar of the Local court or an authorised employee of the Attorney Generals department, but not a police officer.
See Mt Owen Pty Ltd v Parkes [2023] NSWCA 77 at [32].
See observations of the plurality at [45].
See eg Part 5 Division 2 of the Liquor Act. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 February 2025

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