The incident at the tavern
4 The plaintiff and her husband were regular patrons of the Greenhouse Tavern. It was an establishment conveniently located in relation to where the plaintiff and her husband lived. As at May 2000 the plaintiff's husband was conducting a takeaway chicken shop business nearby and worked long hours in it. This plaintiff assisted her husband for several hours per day in the chicken shop business. The arrangement on the evening in question was that the two should meet at the tavern at approximately 9.00 pm.
5 Mrs Wagstaff gave evidence that she arrived at the tavern at about 9.05 pm and went to the poker machine section in the sports bar, an area the location of which is shown on a sketch plan, Exhibit E. She said that she sat there to await her husband's arrival. When Mr Wagstaff arrived, he purchased a drink for himself and his wife and took the drinks to her. When he met with his wife, Mr Wagstaff was laughing, and he informed his wife that it was "a boys' joke" which he had been sharing. After the drinks were finished, Mr Wagstaff went to the main bar to buy another drink and whilst he was away Mrs Wagstaff changed positions to reach another poker machine which she intended to play. There she noticed that there were three men to her right playing another poker machine. Her husband came back to her with the second round of drinks. He took up a position behind the plaintiff and then she heard somebody say, "Get fucked" in an angry voice. The plaintiff stood up and went to a point beside her husband and observed one of the three men, a man with a red face and red hair who continued to swear at her husband. She noticed he had bloodshot eyes and that he was slurring his speech.
6 Mrs Wagstaff spoke to her husband, saying "He is just drunk, Gerry, let's go home". Her husband responded to the man with the red hair, "I didn't mean it, mate. I am sorry. I am sorry, it was a joke." As he spoke, Mr Wagstaff had his hands up, with palms open.
7 The red haired man was within arm's length of her husband. He called Mrs Wagstaff "a fucking bitch", and said to her "I'm not drunk". He then smashed a glass and held it to Mrs Wagstaff's face and to her husband's face, calling them both "fuckwits".
8 The barman approached and tried to get the broken glass from the red headed man, who said, "I can pick up my own fucking broken glass". The barman took the glass from this man and took it to the bar counter and then returned to where the plaintiff and her husband and the red headed man were.
9 Eventually, after the red haired man continued his abuse, Mrs Wagstaff heard her husband say, "Piss off, you are drunk", and Mr Wagstaff then turned to leave. One of the two companions of the red headed man, and this companion had blond hair, thereupon approached Mr Wagstaff and punched him across the head, knocking him to the ground. Mrs Wagstaff said she went running for help.
10 There were two barmaids behind the bar. They informed her there was nobody else there. Mrs Wagstaff said she asked others for help, but it was not forthcoming. When she returned to her husband, the barman, Jay, was pulling the blond headed man off her husband. The third man, who had been at the poker machines with the red headed man and the blond man, pulled Mr Wagstaff up, having put a headlock on him, pushing his neck forward.
11 At this stage there was a brief lull in proceedings and Mrs Wagstaff heard her husband say, "Let me go, let me go, I am not fighting, I am not fighting." Jay released the blond headed man who approached Mr Wagstaff and whilst he was still held punched him in the stomach. Mr Wagstaff's captor released him and the blond headed man grabbed Mr Wagstaff by his ponytail, swung him around and back onto the floor. Two other men jumped on top of Mr Wagstaff.
12 According to Mrs Wagstaff, she feared that her husband was going to die. He was on the ground with his hands behind his back, his ponytail was being twisted and his head with it, and there were the other men, as well as the blond, on top of her husband. According to Mrs Wagstaff, fearing for her husband's wellbeing, she approached the blond headed man and kicked him hard in the buttocks on six occasions and once in the testicles. In the course of doing so, Mrs Wagstaff put her foot through the front of her shoe.
13 What Mrs Wagstaff did was effective to secure her husband's release from the blond headed man, who stood up seeking to find out who had kicked him. He punched a bystander but was then told that it was Mrs Wagstaff who had kicked him and he started to pursue her. Mrs Wagstaff ran to the ladies' toilet and sought refuge inside, placing her back up against the door and her feet on the toilet bowl. There the plaintiff remained until one of the barmaids came into the toilet area to tell her that it was safe to come out.
14 When Mrs Wagstaff came out, she saw that the police had arrived. She noticed that her husband had blood dripping from his face and a cut on his forehead.
15 I accept that the account given by Mrs Wagstaff as above reviewed was a truthful account and I accept that it is a reasonably accurate account of what happened.
16 Mr Wagstaff gave an account broadly consistent with that of his wife and I accept also that his account was an account honestly given. I do not propose to review the detail of his account but where it added to his wife's account, I refer to it. He said that his first noticed the group of three men, including the blond headed man, the red headed man and the third older man who later put the headlock on him, when he was bringing the first drink across to his wife. He overhead one of the men saying something he considered to be "a bit outrageous". He said in passing to one of them, "That sounded a bit sus, I wonder what's going on there." Later, when he was returning with the second drink for his wife, he again spoke to the three men, inviting them to tell him the joke. It was this second intervention by Mr Wagstaff which led to the behaviour of the red headed man in swearing at him, breaking the glass and then holding it in front of him. Thereafter, Mr Wagstaff's account of what occurred is consistent with that of his wife. Ultimately, when he was unable to placate the red headed man, Mr Wagstaff decided to leave and said to the red headed man: "Fuck off, idiot, you're pissed." When he said this, Mr Wagstaff put his hand to his nose and made a gesture. This conduct by Mr Wagstaff was immediately followed by the attack upon him by the blond headed man.
17 Mr Wagstaff, when he was last released, heard the blond headed man asking bystanders "Who laid the boot in?", and then saw the blond man pursuing his wife, but he was arrested in that pursuit by a patron.
18 Later, upon the arrival of the police, he saw the police speaking to the blond headed man outside the hotel, and Mr Wagstaff told the police he wanted the blond headed man charged.
19 The bar manager, Jay Hislop, was not called, but upon being satisfied that he was not available, I admitted into evidence the statement he made to the police. That statement bears dated 12 June 2000 and, omitting formal parts, reads:
"2. I am 27 years of age.
3. I am presently employed as a bar manager. I work at the licensed premises known as the Greenhouse Tavern, Coffs Harbour. I have been working at the Tavern for about 16 months, however I have been working in the industry for about 10 years.
4. About 9pm, Wednesday 3 May 2000, I was working at the Tavern. There [were] about 20 people in the main bar area. A number of these person[s] were consuming drinks, playing the poker machines and talking. Two males, one being 5'2 had a pony tail and the other taller, 5'10 short hair. They had been in the Tavern since early afternoon consuming beer then later on they had scotches.
5. The bloke with the short hair was buying drinks for the other bloke and himself. They were in the pool room when I went in to clean up. From my observations, I saw that they had [had] enough to drink. [A] Short time later, the bloke with the short hair came to the bar to buy another round. I informed [him] that this was [their] last drinks because [of] [their] actions in the pool room. I formed the opinion that they were moderately [a]ffected by alcohol.
6. After they had grabbed [their] drinks, they went into the poker machine area where they met up with a third person who was playing the poker machines.
7. I was behind the bar when I heard a glass smash. I left the bar and went to the poker machine area. When I got there, I saw two people I know, Gerry and Therese [sic] and the two blokes. I started to pick up the glass from the ground. The bloke with the pony-tail had picked up the main piece of the broken glass. I said, 'I'll take that for you.' He said, 'Don't you think I'm fucking capable to do it myself.' The male wouldn't give the glass to me.
8. Gerry and the pony-tail bloke were having words. I convinced the bloke to give me the glass. I didn't see [it] to be a full on argument at this point of time, so I left the area and went and put the glass on the bar, which was about 5 metres away. I returned straight away.
9. I said to both Gerry and the pony tail bloke, 'Calm down. What's the problem?' They wouldn't listen, they were still arguing with each other. Therese [sic] was saying to Gerry, 'Lets go.' Gerry has turned away and started to walk to the far end of the poker machine area. The pony-tail bloke was still mouthing off, taunting Gerry. Gerry turned around and put his finger to his nose and said in jest, 'Fuck off idiot', turned and walked away.
10. The short hair guy who was standing on the left hand side Gerry, has run at Gerry and swung a punch, like a hay bailer missing Gerry's head. The punched missed but he tackled Gerry to the ground. The blonde hair bloke started to punch Gerry about the head. Gerry was trying to get up, pushing the bloke but he couldn't get up.
11. The third guy who was playing the poker machines, had grab[bed] Gerry by both arms, pulling them back so Gerry couldn't defend himself. The short haired guy was still punching Gerry. I had grabbed the short hair bloke in the same way, by grabbing his arms and pulling them back so he couldn't hit Gerry.
12. They started to calm down. Gerry was still trying to break free, he [was] saying 'Let me go, I don't want to fight.' Gerry had calmed right down. The bloke I was holding said, 'Its ok, ok.' so I let him go. Gerry said to the bloke, 'Why did you do that, I wasn't talking to you?' The bloke with the pony-tail was winding his mate back up, taunting Gerry and calling Therese [sic], 'That fucking bitch started it.'
13. By this time, a couple of the locals had come around and backed me up. The short haired guy grabbed Gerry's pony-tail, when I yelled out to a staff member 'Call the Police'. The short haired bloke has pulled Gerry down on to the ground and started to punch him about the face with closed fists. I saw him hit Gerry a number of times. Gerry['s] face was looking at the floor, and the short hair bloke was power punching him.
14. I placed my left foot near his right elbow to stop him from punching Gerry. I said to the bloke, 'Stop it now.' I said this several times. The bloke playing the poker machines had joined in trying to separate the two. A couple of the locals were also trying to break it up.
15. A short time after this, the short haired bloke was pulled off Gerry. He stood up and said, 'Who was laying the fucking boot in?' He kept repeating this over and over again. He turned to one of the locals, …who had pulled him off Gerry and punched him with a closed fist to the face. …has grabbed him around the throat with one hand and said, 'Calm down. It wasn't me.'
16. …and the short haired bloke had a scuffle near the poker machines. One of the locals, …came over to me and asked me who I wanted out. I told him all of them. He helped me to move the pony-tail and the short hair bloke to the front door.
17. I said to these blokes, 'Don't come back in.' The two blokes stayed outside mouthing off. A short time later, the police arrived and I spoke to them about what had happened."
20 The only other evidence bearing on the issue of liability came from two patrons in the hotel called in the case for the defendants.
21 Robert Wear attended the tavern on 3 May 2000 with his friend, John Gett. Mr Wear said that he arrived there between 6.30 pm and 7.00 pm. He and John Gett were sitting drinking beside the poker machine room. He said that at about nine o'clock he was walking back from the bar and he noticed a scuffle on the ground involving "a couple of blokes and a lady". One of the bar managers came over and he said he and some other person separated the two men who were wrestling on the ground. In his assessment the whole episode was over very quickly. He said the police came "and that was the end of it". Mr Wear had not heard any yelling or swearing before he first saw the men on the ground.
22 John Gett recalls that he was sitting at a table with Mr Wear and this was between the bar and the entrance to the poker machine area. His recollection was that his attention was first attracted to the altercation when one of the barmaids said, "Where's Jay? There's a fight." He said that he got up and walked over and pushed the men apart. His recollection was that there were four people involved in the fight:
"There was one guy on the ground. The other guys were just in a bit of a huddle. I didn't see any punches thrown or anything like. Just push and shove."
23 Mr Gett said he did not know what Jay did, but he also said that Jay "just sort of pushed them apart too". He said the police arrived no more than five minutes after the barmaid first attracted his attention to the altercation.
24 Accepting as I do the evidence given by the plaintiff and her husband, it is apparent that neither Mr Wear nor Mr Gett saw what was happening from the outset and whilst I do not doubt the truthfulness of either of these two witnesses, I do not find their evidence of real assistance. It is plain that neither of these men heard or saw what led up to the assault upon Mr Wagstaff, and neither man had either a clear or a complete recollection of the incident.
25 Mrs Wagstaff said that from the time the red headed man started to abuse her husband until her husband turned to leave and was attacked by the blond headed man, a period of less than ten minutes but more than five minutes elapsed (T 38). Later (at T 93), Mrs Wagstaff said that the period was "at least five to seven minutes". There was an interval of one minute, according to Mrs Wagstaff (T 45), during which Mr Hislop was holding the blond man and Mr Wagstaff was being held by the third man before the blond man was released and proceeded to punch Mr Wagstaff.
26 Mr Wagstaff said that it seemed like fifteen minutes but that in reality it was somewhere between five and ten minutes between the time that the red headed man first swore at him and the time that Mr Wagstaff made the gesture and turned his back immediately before the blond headed man first punched him (T 156). Mr Wagstaff repeated that estimate of a time lapse of five to ten minutes in cross examination (T 311). Mr Wagstaff's estimate was that the first assault took about five minutes; there was then a period of separation of about three to four minutes; and then there was the second attack (T 316).
27 Neither Mrs Wagstaff nor her husband could be expected to be precise about the estimates of time that they gave and which I have reviewed above, but their estimates are consistent the one with the other and I find on balance that from the time that the red headed man first abused Mr Wagstaff to the time that the incident was over in its entirety a period of approximately fifteen minutes elapsed.