Ford v Beachmere Bowls Club Incorporated
[1995] QDC 400
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- Unreported Judgment
- Ford v Beachmere Bowls Club Incorporated[1995] QDC 400
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Ford v Beachmere Bowls Club Incorporated[1995] QDC 400
Ford v Beachmere Bowls Club Incorporated[1995] QDC 400
FORD v BEACHMERE BOWLS CLUB INCORPORATED
District Court at Brisbane, Queensland |
His Honour Judge M G Morley QC
1823/1991
9, 10, 16, 17, 23 November 1995
Counsel: | Collins; Grant-Taylor |
Solicitors: | Gadens Ridgway; McInnes Wilson Jensen |
Negligence – occupier's liability – licensed bowls Club premises – patron assaulted by another patron – duty of care – standard of care – Chordas v Bryant (Wellintton) Pty Ltd 1988 20 FCR 90 – Australian Safeway Stores v Zaluzna 1987 162 CLR 479 – Jaenke v Hinton (unreported) CA37/1995 3 November 1995 – Wormald v Robertson 1992 Aust Torts Reports 81-180
Damages – personal injury – facial injury including facial bones fractures – injury to cervical spine – attributable 2% loss of bodily function – male – 36 years old at injury
23 November 1995
JUDGE MORLEY QC: The plaintiff's surname is Ford. His pleaded claims are against two defendants. One is a natural person surname Thompson against whom Ford sought no relief at his trial. Evidence was adduced that Thompson had absconded whilst upon bail during, it seems, the latter part of 1988 and that since then there has been an issued and unexecuted warrant authorising his apprehension. At this trial Ford sought relief against the second defendant which was and is a corporation. I shall refer to it as the Club.
Against the Club Ford pleads a claim for damages for negligence, and, or in the alternative, for breach of duty together with statutory interest. The Club's pleading admits its own corporation, denies liability, and denies damage.
The damage pleaded by Ford is his 3 June 1988 injury and its consequences. He has proved that he has sustained that injury and consequential pain, suffering and discomfort and loss of amenity to about June 1993. He has not proved facts which justify either a conclusion of fact that he has sustained damage caused by this injury after about June 1993 or a prediction that he will sustain damage caused by the June 1988 injury.
The injury was to Ford's face and the cervical spine region. It included mid-facial bone fractures. He had pain in his neck which radiated to his left arm and to his left face. He was in hospital for slightly less than one week. Surgery reduced and fixed the fracture and a frame was applied. The facial frame was very awkward for Ford. He had to wear it in place for about four weeks. For about six weeks Ford's mouth was wired in the closed position. He had to take blended or liquid foods. He was an hospital outpatient until August 1988. By about August 1988 Ford had succumbed to an alcohol addiction. This was part of his poor response to a mild post traumatic syndrome, the effect of which was, in my judgment based on the acceptable opinion evidence, of limited duration to the extent that it was a consequence of the 1988 injury. For long prior to the 3 June 1988 injury Ford had been subject to alcoholism. By about November 1988 his relationship with his de facto wife was discontinued by her due to his unacceptable disposition and habits. Ford was unable to resume employment until December 1988. His employment from then until May 1990 was less than satisfactory due to his alcoholism. My conclusion upon the evidence is that, apart from the yet to be mentioned consequences within his cervical spine, the consequences of the June 1988 injury were exhausted by December 1988.
To November 1988 Ford's fiancee, with whom he was residing in the de facto relationship mentioned, assisted Ford to an extent beyond that which ordinarily would have been rendered by her were Ford uninjured. Further, Ford's sister assisted him by transporting him to and from his hospital outpatient's appointments the last of which was in early August 1988. Ford's proved damage the consequence of the 3 June 1988 injury included his being rendered in need of that assistance. He did not incur expenditure in securing it. In extent that assistance was for not less, in total, than 294 hours. Were this aspect of Ford's damage rightly to be regarded in isolation, and as not but another aspect of this head of damage presently being considered, its value would be not less than $2,500.
Degenerative changes within Ford's cervical spine at level C6/7 predate June 1988. They had been promoted, but only in part and for a limited period of time, by Ford's June 1988 injury. The acceptable opinion evidence justifies a conclusion that the cervical spine consequences attributable to the June 1988 injury were exhausted by, at the latest, about June 1993. That is so because, upon that opinion evidence, Ford's pre-June 1988 status was flawed in the manner revealed by that evidence, that is to say, first, that the degeneration within the cervical spine preceded the June 1988 injury, and second, that, notionally uninjured, Ford's June 1993 cervical spine condition would have been that which, in the events which happened, it was by that last mentioned date. It is for that reason that I have concluded, as stated earlier, that Ford has not proved facts which justify any prediction of pain, suffering, discomfort or loss of amenity from now or after about June 1993 as the consequence of the June 1988 injury.
That that mentioned now has been caused by the June 1988 assault is proved, in my judgment, by the evidence, remembering sufficiently that probable causation may be held proved upon proof that the alleged cause was but a cause of the alleged consequence. That certain other symptoms and adversities mentioned in evidence were a cause of the June 1988 symptoms I am not persuaded. Very briefly, during May 1990 Ford sustained a broken ankle from an unrelated injury. From then Ford's health and well being history was adverse. It included alcoholism, suicidal tendencies, depression, anxiety, and, more happily, rehabilitation from about mid 1992. By June 1993 he was working part time. During 1994 his personal relationship with his former fiancee was re-established. After a careful consideration of the expert evidence received, including particularly the expert psychologist's opinions from the witness Johnson, I have concluded, after applying those opinions to the facts proved, that Ford has not proved that his adverse health and well being history after May 1990 was caused by the June 1988 injury. If proved a consequence of a compensable injury, alcoholism or drug dependence and its adverse consequences may be held compensable. See, eg Beard v Richmond 1987 Aust Torts Reports 80-129, Havenaar v Havenaar 1982 1 NSWLR 626, and Yates v Jones 1990 Aust Torts Reports 81-009. To award damages for such an adverse addiction, the conclusions must include that that it was a cause of the initial injury, and that that particular type of damage was foreseeable. In the instant case, Ford had a long preexisting disposition to the taking of alcohol to excess. He had regained his capacity sufficiently to return to full time employment by early December 1988. His continuation of that employment was interrupted by injury in May 1990. It was not argued that the last mentioned injury was a consequence of the 3 June 1988 injury.
I have concluded that $25,000 is appropriate compensation for the June 1988 injury and its already mentioned proved consequences. To that should be added in exercise of the relevant discretion $5,000 statutory interest. Relevant to that discretion is that the entire of this relevant non-economic damage had accrued by June 1993. The assessment of $25,000 just stated includes that aspect of Ford's damage which rendered him in need of extraordinarily household and personal assistance.
Ford's capacity to earn income was impaired by the June 1988 injury. He was unable to continue in employment. His employable capacity was that of a labourer. The net weekly value of his earning capacity was about $250. He commenced work during December 1988 and continued work until his unrelated ankle injury in May 1990. Thereafter Ford's work history and earning capacity was interrupted and impaired but, for reasons already stated, I have concluded that that post-May 1990 impairment of earning capacity has not been proved to have been caused by the June 1988 injury. Important to the assessment of the value of the loss caused by the June 1988 injury is that its arithmetical value is slightly less than $7,000. I consider that $6,000 is appropriate compensation for this part of Ford's damage. To that $5,250 statutory interest should be added. Important to the exercise of the discretion as to statutory interest is that this damage was incurred by December 1988 and it had accrued from early June 1988.
Ford has not proved facts justifying any prediction that his earning capacity will be impaired by reason of the June 1988 injury and nor has he proved facts justifying a conclusion that his earning capacity after December 1988 has been impaired by reason of the June 1988 injury.
Ford has proved that he has sustained special damage the consequence of the June 1988 injury. Pharmaceutical expenses cost $50. Ambulance transport fees cost $281.66. A dental surgeon's fee was $10. A hospital fee to the Redcliffe District Hospital was $270 and the fees due to the Royal Brisbane Hospital were $1,350. In addition to the foregoing travelling expenses of the value of $144 were incurred. The value of the special damage proved as being attributable to the June 1988 injury is $2,105.66. Of that sum $341.66 has been in fact paid by Ford and $150 statutory interest should be added in respect of those of the special damages which have in fact been paid.
I have assessed the value of Ford's damage due to his 3 June 1988 injury to be $43,505.66 (being $25,000 plus $5,000 plus $6,000 plus $5,250 plus $2,105.66 plus $150). That total sum is not, in my judgment, disproportionate with that part of Ford's damage proved to have been the consequence of his June 1988 injury. To this should be added the observation that, as against Thompson, quite different principles of and relating to the assessment of damages may apply.
The relevant relationship alleged and, by the evidence proved, is that of an occupier and operator of licensed premises upon or within which Ford was but one of the guests present at the material times. The premises were that of a licensed bowling Club. Ford's whereabouts at all material times were within the bar and the gentlemen's toilet areas of the Club's building. The essence of Ford's pleaded case against the Club is that by its alleged negligence and/or alternatively its breach of duty, Ford received injuries when he was assaulted by a fellow guest Thompson. Summarised, Ford's allegation against the Club is that it failed to take reasonable steps to negative or warn Ford of dangers to Ford of which the Club knew or ought to have known. Ford alleges that the Club failed to take those reasonable precautions and particulars of the failure (after amendments) alleged of the Club are the following:—
- (a)allowing Thompson to remain on the Club's premises after the Club knew or ought to have known of Thompson's being adversely affected by alcohol;
- (b)allowing Thompson to remain on the Club's premises after the Club knew or ought to have known that Thompson had been involved in verbal altercations with other patrons of the Club earlier on the night in question;
- (c)the Club's failure to implement policy whereby unruly patrons were removed or were to be removed from its premises;
- (d)the Club's failure to employ sufficient staff in order to enforce a policy whereby unruly patrons and/or alternatively patrons that have consumed excessive amounts of alcohol were to be removed from the premises; and
- (e)the Club's failure to employ sufficient staff so as to identify circumstances whereby a patron may be assaulted and/or alternatively injured by another patron.
Ford has succeeded proving, by evidence, facts which support a conclusion that the Club owed him at all material times the duty, as occupier of the premises, to take reasonable care to avoid foreseeable risk of damage to Ford. The submissions received did not question that this conclusion was appropriate. See Australian Safeway Stores Pty Ltd v Zaluzna 1987 162 CLR 479, at 488, Jaenke v Hinton 1995, unreported, CA37/1995, 3 November 1995, Court of Appeal (Q) - Pincus JA, Thomas, Williams JJ, Chordas v Bryant (Wellington) Pty Ltd 1988 30 FCR 90, Wormald v Robertson 1992 ATR 81-180.
My conclusion is that Ford has failed to prove that the continued presence of Thompson upon the premises constituted any such foreseeable risk of damage to Ford. The conclusion of fact demanded by the determination of this issue is that of hypothetic past fact, to be determined without undue emphasis upon the advantage of hindsight, and to be made by reference to the notional reasonable person then in the Club's position and circumstances.
The relevant reliable and accurate evidence does not identify Thompson's activity to have been such as to disclose to any notional reasonable observer assumed to have seen all that occurred that Thompson's continuing presence within the Club's premises was a foreseeable origin of any danger whatever either to Ford or to any other guest. Thompson was at all material times a member of another Bowling Club which accorded to his reciprocal rights to attend and use the facilities as if he were a member of the Club. Prior to 3 June 1988 Thompson was known to the committee members and President of the Club and to the relevant bar staff. In about February 1988, that is to say, about 4 months prior to Ford's injury, Thompson then within the Club's bar had been warned about his language. He heeded the warning and complied with it. Thompson had been present within the Club from no later than 6 pm and, on the probabilities, since about 4 pm on 3 June 1988. From the time of his arrival, he had been consuming alcohol as a guest within the bar within the Club's premises. He had been within the bar until approximately 10 pm when the events relating to Ford's injury occurred.
During the evening, at or about 8 pm, Thompson spoke loudly and used obscene language. For this he was spoken to by the President's wife and another fellow guest and he complied with the request and desisted. For the entirety of the evening, Thompson was in the company of another guest the witness Forrest. Thompson was accompanied by his son, then about 10 years of age.
The verbal altercations alleged by Ford's particulars of negligence reproduced earlier in these reasons are a reference to an incident which on the evidence occurred at or before 8 pm. It occurred near an island bar within the bar area of the Club's premises. A group of persons including Ford were seated at or about one end of an island bar when Thompson was seated at the other. Ford's group was discussing among themselves a certain aspect of the constitution of another Bowling Club in North Queensland whereby membership was conferred in short periods each of some months duration. Ford made a comment in the course of this discussion within his own group that such a measure would keep undesirable elements from the membership. Thompson, apparently overhearing Ford's remark, inquired whether the group was referring to him. Members of Ford's group said to the effect that they were not referring to Thompson but having their own discussion and they moved away from Thompson and occupied another position in the bar further away from Thompson.
On approximately 3 occasions during the evening, Thompson struck his closed fist into the palm of his other hand whilst speaking or moving within the bar area. Thompson did not exhibit any conduct indicating that he had reached any observable level of intoxication.
At about 10 pm and shortly before Ford's injury, Thompson walked from the bar to and then entered the gentlemen's toilet facilities. Another adult male guest surname David who has since died was within the toilet area. Ford left the bar area and entered the male toilets after Thompson had done so. Wholly within the toilet area Thompson assaulted Ford causing his injuries described earlier in these reasons.
My conclusion is that the entirety of Thompson's conduct, habits, movements and actions during the afternoon and evening within the bar area would not have identified to the notional continuous observer that his continued presence within the premises was any danger to any other guest and, more particularly, any danger to Ford. For those reasons I have concluded that the Club did not know and acting reasonably could not have known Thompson's continued presence to be the source of any danger to Ford or to any other guest, and that Ford has not proved any reasonably foreseeable danger to him originating from Thompson's continued presence on the premises. It is not unimportant to notice in relation to this conclusion, that, on the facts, Thompson did not follow Ford to the confines of the gentlemen's toilet.
For those reasons I have concluded, too, that Ford has failed to prove that any act or omission for which the Club could be held to have been responsible either constituted the negligence or breach of duty alleged or caused Ford's June 1988 injury.
I give and make the following directions and orders:—
- (a)That the Registrar shall file the original of these written reasons of record and shall forward a copy to Ford and the Club at the respective notified addresses for service;
- (b)The Registrar shall not perfect any order or judgment otherwise than upon an appointment notified to Ford and the Club at the respective notified addresses for service and the Registrar shall refer to this Court any matter alleged by either the Club or Ford to be a matter or issue requiring determination to secure a due determination of this action;
- (c)Ford's action is dismissed; and
- (d)Ford pay the Club's taxed costs of and incidental to this action.
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