Braund v Brown[2001] QDC 304

DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiff’s claim is for unpaid wages and damages for breach of an oral agreement with the second defendant; and for damages for assault “due to the negligence of the defendant” against the first defendant, for which the second defendant is alleged to be vicariously liable. The various claims in negligence are particularised in the pleadings and include a claim against the second defendant that it failed to adequately instruct, supervise, or train the first defendant in the performance of his duties.

2. [2]
   The plaintiff was employed by the second defendant from mid 1993 until mid 1995 when he accepted a voluntary redundancy. The first part of the plaintiff’s claim relates to what he alleges was an oral agreement between himself and the servants or agents of the second defendant whereby it was agreed that he would use (or allow other employees to use) his own tools, in particular a Hilti Drill and an AEG Hand Drill, on the understanding that the tools would be repaired if required at the second defendant’s expense. There was no significant challenge from the second defendant to this evidence; indeed Mr Wynne in his evidence in chief, acknowledged that there was such an arrangement between the second defendant and its workers generally, and in paragraph 2 of the Entry of Appearance and Defence filed the 23^rd April 1999 the agreement was admitted by the defendants. Mr Wynne said that the plaintiff’s tools were sent to Brisbane for repair; and that the Branch were instructed “from Brisbane that we wouldn’t repair the worker’s tools”. The plaintiff’s claim in this regard should therefore succeed. Assessing the appropriate damages is difficult because of a paucity of evidence. I find (as the plaintiff acknowledged) that both tools were used at the time he commenced employment, indeed his evidence was that he purchased the Hilti Drill in 1989. I find that by the time he left the second defendant’s employ in 1996, both tools were beyond repair. Exhibit 6 contains quotes for both tools new as at November 2001. Discounting for the second hand state of the tools at the time the plaintiff commenced employment in 1993; and taking into account a component for interest since 1995 I will allow $750 under this head. The other aspect of this part of the plaintiff’s claim against the second defendant is for underpayment of wages. Again, there was little or no contest to the plaintiff’s evidence on this point. The plaintiff says when he started work for the second defendant he was employed as a fabricator in the factory at Kunda Park, Maroochydore. Very soon after that, he commenced to work on outside jobs as an outside fixer which attracts a higher rate of pay than that for a fabricator. The plaintiff says that he raised his concerns with his supervisors at Kunda Park, but his complaints were never satisfied, and remain unsatisfied. After he left the employ of the second defendant, I infer that the plaintiff made a complaint to an inspector under the Workplace Relations Act 1996, and on 4 March 1999 a report of the investigation undertaken by the inspector (Mr Lucas) was made to the plaintiff. The report was tendered by consent and is Exhibit 11. There was no evidence from the second defendant to contest the plaintiff’s evidence which forms the basis for Exhibit 11. The conclusion is set out on an unmarked page of Exhibit 11 between pages 10 and 11; and that is that the claim is assessed at $3,362.38. There was no evidence from the second defendant to support the basis stated in Exhibit 11 for refusing the claim. The plaintiff’s claim for unpaid wages should succeed. He is entitled to interest at 10% per annum on $3,362.38 since 16^th June 1995, which is $2,185.55.

3. [3]
   Before turning to the claim for “assault” and “negligence” against both defendants, I observe that it is entirely regrettable that the second defendant has hitherto failed to properly address the plaintiff’s claim for unpaid wages and wear and tear on his tools. It is probable that had the plaintiff’s claims been addressed after he accepted the redundancy, this litigation would not have eventuated. It reflects very poorly on the second defendant, in light of its implied concessions at trial and admissions in the pleadings, that it did not address these issues much earlier.

4. [4]
   The second aspect of the plaintiff’s claim is for damages for injuries he says he sustained when he fell down a set of stairs at the second defendant’s premises at Kunda Park on the 21^st April 1998. There is significant dispute as to what occurred which will be resolved largely by my view of the reliability of witnesses, bearing in mind the onus upon the plaintiff. Before turning to a detailed analysis of the evidence I will deal with an objection to a medical report of Dr Todman, which was made by Mr Kelly on behalf of the defendants. The reports of Dr Todman were provisionally admitted in evidence as Exhibit 1. The objection is based on two grounds. The first can be disposed of quickly. Mr Kelly submitted that as a neurologist Dr Todman is not qualified to give opinion evidence as to percentage disabilities related to cervical spine and lumbar spine injury. I accept Dr Todman’s own evidence that as a neurologist he is well qualified to give such evidence and has in fact done so on many occasions in court. The objection on that ground fails. Mr de Plater concedes properly that Dr Todman’s evidence of disability relating to lumbar spine injury is irrelevant because there is no pleaded claim of injury to that area: see paragraph 16 of the Amended Plaint. It is also immediately obvious that there is no claim pleaded for injury to the cervical spine. Mr de Plater submits that such a claim is implicit in paragraph 16(a) “A 7cm laceration to the scalp requiring stitches”. It is difficult to understand why the claim was not specifically pleaded when the plaintiff’s solicitors received the report in May 1999. As against that, the defendants have had that report for some time prior to trial.

5. [5]
   In the report of the missing general practitioner Dr Tinsley admitted pursuant to s. 92 of the Evidence Act as Exhibit 12, there is no reference to any injury or even tenderness to the cervical spine. Mr Kelly’s objection goes further and relies on what he says is a non-compliance with r. 155 UCPR. It is difficult to see how the defendants could be said to be surprised by Dr Todman’s evidence; and I have concluded that Dr Todman’s evidence relating to the cervical spine injury is admissible despite the obscure pleading. The objection relating to his evidence relating to lumbar spine disability is upheld.

The incident of the 21^st April 1998 (“The incident”)

6. [6]
   The plaintiff gave evidence about the incident. The defendants called evidence from the first defendant, Senior Constables Kelly and Antill who were called to investigate the incident by Mr Wynne, Mr Gerrard Wynne the production manager for the second defendant, Mr Cannon, an employee, Ms Karen Pearce who is officer manager and who was in the reception area of the office at all relevant times, Mark Mustenberg, a sales representative for the second defendant and a factory worker Mr Shane Dowling.

7. [7]
   In summary, the plaintiff says he went to the factory on the morning of that day by prior arrangement with the first defendant. The first defendant says this is not so, and I prefer his evidence. It is clear to me that the plaintiff had become somewhat obsessed with his grievances towards the second defendant over the years following his redundancy. He frequently answered questions in a non-responsive way by referring to the “bogus” redundancy, and the alleged failure of the second defendant to honour its alleged promise to give him sub-contracting work after his redundancy. The plaintiff found it difficult to obtain work in the field after he left the employ of the second defendant; and over the years a genuine belief (as I have found) that the second defendant owed him money has blossomed into an obsession. I am satisfied that he harbours considerable resentment towards the second defendant which he attempts to mask by referring to his respect for it, and that he regarded it very highly. Dr Alcorn notes his ambivalent attitude towards the second defendant. My overall impression was that he was quite resentful and his personality, as discussed in the reports of Drs Alcorn (in particular) and Dr Grant, is such that over the years his grievance grew into an obsession. The first defendant was not the branch manager when the dispute arose, and he, as it were, inherited the problem from others. He gave evidence that over the period he had been branch manager – which I infer was from sometime in 1996 – the plaintiff had turned up at the Kunda Park factory on a number of occasions uninvited and had spoken to the first defendant. He said that last contact had been some two weeks before the incident. He says that the plaintiff was not invited on the day of the incident; again he just turned up. I prefer the evidence of the first defendant on this point. He said, and Mr Wynne said, that they had consistently advised the plaintiff to put his claims in writing and I think this is probably the case. In fact, on the evidence the plaintiff’s claims in relation to wage loss were never “put in writing” until Exhibit 11 came into existence. I find that it is more probable than not that the plaintiff did not have a prior arrangement to meet either the first defendant or Mr Wynne on this day, and that he simply turned up. His own actions support this conclusion. He had not been employed by the second defendant more than four years, and yet he walked in the front reception area without speaking to the reception staff, and walked straight into Mr Wynne’s office. That conduct is not the conduct of someone who had a prior arrangement.

8. [8]
   As Mr de Plater suggests in his submission, I do not intend to closely analyse the evidence of what occurred leading up to the plaintiff’s fall. I am satisfied that the plaintiff was in an agitated state from the moment he entered the premises. I prefer Mr Wynne’s evidence of what occurred in his office, and that is when he told the plaintiff again to put his claims in writing, he (the plaintiff) became aggressive and demanding. The plaintiff says Mr Wynne became annoyed immediately, but on all the evidence I find that it is more probable that Mr Wynne what he had always said to put his claims in writing to Head Office, which angered the plaintiff. Having regard to my close observations of the plaintiff during his long time in the witness box, and the psychiatric reports, I think it is probable that he was the aggressor throughout. I am satisfied that his encounter with the first defendant after he left Mr Wynne’s office was coincidental, in the sense that Mr Brown was going about his normal duties when he came upon the plaintiff who had left Mr Wynne’s office upset and probably angry. Mr Wynne acknowledges that he did become angry with the plaintiff. On the evidence, it is common ground that when the plaintiff first encountered Mr Brown he had some control over his emotions – this conduct on his part is perfectly consistent with his changes in behaviour observed by the police after the incident. Both police officers observed that inside the building after the incident, the plaintiff was calm, outside he became agitated then he was seen making jokes with some employees; then again agitated and impatient once he appreciated that the police were not going to do his bidding by arresting Brown. This conduct is completely consistent with my own observations of the plaintiff together with the psychiatric reports and I am satisfied that he is able to turn his emotions on and off at will. On that morning, this obsessed man who had a legitimate grievance against a former employer, unfortunately took out his frustrations on employees of the second defendant, including Mr Brown and Mr Wynne who were not personally responsible for his grievances. My findings in this regard are confirmed by the evidence of Mr Cannon whose evidence Mr de Plater does not challenge. He described the plaintiff as having a raised voice and being stressed and excited and bombastic, prior to the incident on the stairs. The plaintiff asks me to accept that his agitation was provoked by the actions particularly of Mr Wynne and Mr Brown, but on all the evidence I am satisfied that it was the plaintiff by his own actions who provoked anger in Mr Wynne and in the first defendant.

9. [9]
   I find that the first defendant did become angry with the plaintiff; indeed the witness Shane Dowling who was working outside Mr Wynne’s office had them shaping up to each other in the loading area. There are some discrepancies between his evidence and that of Wynne and Brown which are explicable on the basis that the situation became highly charged. Brown demanded the plaintiff leave the factory, he continually refused to do so; and Wynne had called the police. I am satisfied that the plaintiff unreasonably refused to leave the factory and continued to walk through the factory floor until finally he did exit followed by the second defendant. It may well be that momentarily the plaintiff had come to his senses, having caused a disturbance sufficient to provoke Mr Wynne into calling the police, he then decided to leave. I accept Brown’s evidence that he followed the plaintiff along the side of the factory towards the car park where the plaintiff’s car was parked. I also accept Mr Brown’s evidence that he was relieved as he thought the plaintiff was indeed leaving. It appears that at that point, the plaintiff decided again to enter the premises through the front door. As to what occurred in the reception area on this second occasion, I prefer the evidence of Mr Brown and the witnesses Mr Mustenberg and Ms Pearce to the evidence of the plaintiff. Consistently with his earlier attitude the plaintiff was belligerent and obnoxious and despite his protestations to the contrary, I am satisfied he did swear on occasions during that morning. Mr Cannon heard him say “Bunch of fuckwits” earlier on, Ms Pearce heard him say “Bugger the customers” and Mr Mustenberg recalls him using obscenities. The plaintiff’s evidence is that the reason he returned to the office was to get his “paperwork”. It is common ground that Mr Mustenberg was attending to two elderly customers in the reception area. The plaintiff accepts that Mr Brown asked him to be quiet because of the customers and he accepts he said something like “Bugger the customers”. His evidence is that Mr Brown then said “Come upstairs I’ll give you your paperwork” to which he replied “About bloody time”. The first defendant’s evidence is that indeed he did invite the plaintiff upstairs but not to retrieve paperwork which he did not have, but to avoid any further unpleasantness with the customers. His evidence on this point is supported by Karen Pearce. She was a careful witness who I accept. The claim relates to what the plaintiff says occurred next. The plaintiff says he followed the first defendant up the stairs which are depicted in photograph 4 Exhibit 10. At the landing, he says the first defendant blocked his way, grabbed both arms and placed his face close to his and said “You’ll get fuck all out of me”. The plaintiff says he said “I’ll chin you”, at which the first defendant pushed the plaintiff backwards down the stairs. The plaintiff says he fell down the stairs backwards, and his next recollection is of a police officer (Senior Constable Antill) leaning over him and telling him to get outside. Initially in his evidence, he was positive that he did not reach the landing when the confrontation took place; that he was still on the stairs at the top near the landing when he was grabbed by the first defendant. He was cross-examined on what he told Dr Todman. Dr Todman sets out the history in his report dated the 20^th May 1999; and records that he was told:

“He was asked to go up some stairs to retrieve paper work but approximately half way up on a landing his assailant grabbed him and forced him down the stairs.”

10. [10]
    Mr Kelly returned to the topic at page 123 and I set out in full the questions and answers.

“No. Okay. No, you’ve given evidence earlier about where you say you were standing on the stairs when Mr Brown grabbed you and, you say, thrust you down the stairs?—Mmm.

Now, you say that – and correct me if I’m wrong Mr Braund, I’m trying to be fair to you here – you say that you hadn’t even made it to the first landing when Mr Brown turned around, grabbed you and pushed you back?—I’m – that I cannot honestly say whether I was on the step below or actually on the landing. I know that I was brought up short and it was either there or there. It was – you’re talking one step, but then the height, I would have then been at his head height but he came forward and say what he said, and at the same time that wall that’s on the side there that in your pictures looks like it’s small, in my recollection, went higher up. You know, I felt that there was the wall here. Whether they changed that design in the building in their restructure, I don’t know.

Mr Braund, when I cross-examined you previously, you said you were a couple of steps down from the -----?—No.

-----the landing?—No, not a couple of steps down.

Right. So you now say that you were one step down or on the landing?—Yea, one – I was – you know, but he’s grabbed me here. So if he was on the landing then he would have gone down-----

I don’t want you to – I don’t want you to manufacture-----?—I’m not manufacturing-----

-----in your mind what occurred. What I want you to do is answer the question. Were you, at the time that Mr Brown seized hold of your arms, on the landing dividing the two flights of stairs, or on one of the stairs?—Definitely one of the  steps because the wall is on my side here, that wall. And so - yeah, must have been on the step because if you look at the photo, I think the wall finishes and there’s the landing, so therefore the wall couldn’t have been at my side.

And you recollect-----?—Yea.

-----how – how many steps below the landing-----?—One.

-----you were? Only one?—Just one.

So-----?—He was standing on the landing.

So when you went to see Dr Todman in May 1999 and he notes that you told him “Approximately halfway up on a landing his assailant grabbed him and forced him down the stairs.”?—He was on the landing, yes.

So you’re saying – in that respect you say Mr Brown was on the landing and you weren’t?—Yes.

That’s your explanation for that?—Yes.

11. [11]
    This passage indicates uncertainty which merges into certainty in the plaintiff’s mind as to where he was. He finally says he was on the top step before the landing and Mr Brown was on the landing when the grabbing took place. I will return to this evidence shortly.

12. [12]
    The first defendant’s account as to what occurred on the stairs and landing is completely different. He says that he felt relieved when he thought the plaintiff was leaving as he walked to his car; however he turned back and went in through the front doors of the office area. I accept his evidence that the plaintiff was aggressive and demanding. His evidence in this regard is supported by the evidence of Mr Wynne, Ms Pearce and Mr Mustenberg. I prefer his evidence as to what was said at that time. I find that he finally invited the plaintiff to his upstairs office because of his concern for the customers who, on the evidence, were aware of the plaintiff and concerned about his behaviour.

13. [13]
    The first defendant says that the plaintiff lead the way up the stairs. I prefer this evidence. It is consistent with the plaintiff’s behaviour throughout. He was determined to have his demands met, and he had behaved as if he had an unfettered right to enter the premises of the second defendant without invitation. The first defendant says that at a point around the middle of the landing, as (I infer) he came up to the plaintiff, their shoulders touched and the plaintiff turned and grabbed his shirt and he, in turn, grabbed the plaintiff’s shirt. He says they were both on the landing at this point and he was in a position to the left of the landing near the wall as depicted by his initials in Exhibit 10. He says that they each let go and the plaintiff then turned and appeared to take two steps down the stairs. Mr Brown could only see the plaintiff from the waist up because his view was blocked by the balustrade. He says the plaintiff then placed his hands behind his head, leant forward and rolled down the stairs to his right. In other words, the first defendant’s evidence is that the plaintiff deliberately threw himself down the stairs. In his written submission, Mr Kelly for both defendants observed: “In most cases, it would be difficult for a Defendant’s counsel to convince a Court that on the balance of probabilities, accepting that reasonable people were involved, that the more believable story was that the Plaintiff had deliberately thrown himself down the stairs rather than being pushed by Mr Brown. Such a conclusion is so far removed from what ordinary people, including Judges, would expect, that it would require significant persuasion to discharge the onus.” There is some force in that observation, although the onus is upon the plaintiff, and not the defendant. Mr Kelly goes on to submit that in this case the defendant’s version of what occurred should nevertheless be accepted. The plaintiff’s case is and has always been that he was deliberately pushed by the second defendant. The first defendant’s version of what occurred on the stairs has not always accorded with the evidence he gave before me.

14. [14]
    He was interrogated by the plaintiff’s solicitors and provided answers on oath, and the relevant interrogatories and answers are contained in Exhibit 16. He was questioned closely by Mr de Plater about his acknowledgment in (e) and (f) that he “did touch” the plaintiff whilst the plaintiff was standing on “the flight of stairs”. The interrogatories use the term “flight of stairs”, and make no distinction between the stairs and the landing, and it is obvious that the first defendant has merely responded to the form of the questions. In answer (g) he specifically refers to the grabbing actions occurring on the landing. In my view the first defendant’s answers in Exhibit 16, insofar as they seem to suggest support for the plaintiff’s evidence that he was still on the steps and not the landing when he was grabbed, do not assist either way because of the form of the questions. For that reason, the answers are equivocal. However, there are more significant differences between his account in evidence, and his account in answer (g) in Exhibit 16, in which he makes no reference to the plaintiff placing his hands behind the back neck; and he describes the plaintiff falling with both arms in the air. The only other witness who was able to give any direct evidence about what occurred on the stairs is Mr Cannon. Mr de Plater does not challenge his evidence, indeed I find him to be a reliable witness who was careful and honest. After initially seeing the plaintiff in the factory, Mr Cannon went about his duties. He was called to the phone, and was on the phone upstairs when he heard Mr Brown’s voice. Mr Cannon came to the corner depicted on the left hand side of the top photograph in Exhibit 15 and looked around the corner and down the stairs. He had a view similar to the view depicted in the bottom photograph in Exhibit 15. He saw Mr Brown and the plaintiff on the landing. The plaintiff’s evidence is that he never actually got onto the landing. Mr Cannon observed the plaintiff backing away from Brown who was in the position marked “RB” in Exhibit 10 (top photograph). His evidence is therefore more consistent with the first defendant’s account than that of the plaintiff. He saw the plaintiff appeared to be backing away from the defendant. There was no contact between them. I am satisfied therefore that Mr Cannon looked just as the parties parted. Mr Cannon only glanced around the corner; he did not want to get involved, and he immediately pulled back and did not see the plaintiff fall. He thought the plaintiff was backing away ready to go. The problem for the plaintiff is that on his evidence there could be no occasion when he and the first defendant were separate and apart on the landing. His evidence is that at the outset of the altercation on the top step of the flight of stairs leading up to the landing, the first defendant took hold of his arms and after the verbal exchange, he was immediately pushed backwards down the stairs. If that is what occurred, Mr Cannon could not have seen what he says he saw. On all the evidence, I am unable to finally conclude as to what actually occurred on the stairs and landing; however on the basis of my overall unfavourable assessment of the plaintiff’s reliability; and on the basis of Mr Cannon’s evidence which I accept, the plaintiff has not satisfied me on the balance of probabilities that he was deliberately or even negligently pushed down the stairs by the first defendant. I do not accept the implied suggestion in Mr de Plater’s submission that the first defendant “may well have motive, and possibly good reason” to push the plaintiff down the stairs. There is no evidence to suggest that Mr Brown was angry and upset as he follows the plaintiff up the stairs. Certainly, on the evidence there was aggression between them both on the landing, but I am satisfied that it was caused by the plaintiff’s initial grabbing of Mr Brown’s shirt. On all the evidence, I am satisfied that the first defendant was probably well in control at that moment because of his concern to ensure that the customers were not upset.

15. [15]
    I have referred on a number of occasions to the evidence of Drs Alcorn and Grant, the psychiatrists who examined the plaintiff. I have got no doubt that the plaintiff is convinced of the truth of his own version of events; indeed he agreed he had been over the events “a thousand times” in his mind. As I have found, he had a strong sense of grievance leading up to the incident as a result of the second defendant’s failure to pay him the money I have found he was legitimately owed. When he felt the police were not on his side, his sense of injustice was compounded, and he developed an anxiety disorder with mixed emotional features (Dr Grant) or an adjustment disorder with depressed and anxious mood (Dr Alcorn). My own observations of the plaintiff in the witness box over a lengthy period have lead me to prefer Dr Alcorn’s overall assessment as being particularly perceptive of the plaintiff’s personality and psychological make-up. I have already noted the plaintiff’s consistent attempts to state his grievances about the second defendant in not responding to direct questions. He was also very quick to justify his own actions; often expressing opinions which were self-serving and often unresponsive. On occasions, he reconstructed the events to paint himself in a better light. In conducting various personality tests, Dr Alcorn described the plaintiff as indicating “defensiveness and an unwillingness to acknowledge commonplace minor moral faults” and of a personality type who “look for simplistic, concrete solutions to their problems, solutions that do not require self-examination”. Dr Alcorn raised the possibility that the plaintiff is a man with an obsessive-compulsive personality disorder, but ultimately rejected this diagnosis.

16. [16]
    In my opinion, the plaintiff’s dealings with the police after the incident tend to confirm Dr Alcorn’s opinions which were based on tests and a lengthy single interview. Both police officers describe odd behaviour which was clearly manipulative. Quite contrary to his behaviour leading up to the incident, when the Police Officer first saw him on the floor in the office, the plaintiff was initially very calm. When he was taken outside by Senior Constable Kelly he became agitated and walked up and down. She asked him on numerous occasions if he required an ambulance, which he refused. When near the police he would appear to be in some discomfort; when he moved away to wave and wink at other employees he seemed to move freely and easily. After Senior Constable Antill had made initial inquiries with Mr Brown inside the building, he came out and told the plaintiff what Mr Brown had said. He then became irate and Senior Constable Antill advised him to come in the next day. I am satisfied that the plaintiff felt that the police were not on his side – he was not justified in so reacting as the police were acting properly and carefully in the execution of their duties. I am also satisfied that Senior Constable Antill fully investigated the matter. For his troubles, he was the subject of a complaint made to the Criminal Justice Commission by the plaintiff. I accept the evidence of the police officers. The plaintiff describes a bizarre incident which he says occurred as he attempted to drive away. He says he had not realised his left radius was fractured until he disengaged the hand brake and felt a severe pain in his arm which caused him to fall out of the car. Both police were there and watched him drive away. Neither recalls such an incident. Senior Constable Kelly’s memory of events was not good, but Senior Constable Antill had a good memory and was a very careful and fair witness. I am satisfied that this event just did not happen.

17. [17]
    The plaintiff has failed to discharge the onus upon him and for that reason his claim for damages for personal injury against both defendants must fail.

Assessment of damages

18. [18]
    As a result of the fall, the plaintiff suffered a number of injuries which are set out in Exhibit 12 as:

“01. A 7cm laceration deep to the scalp, this required suturing. Skull x ray showed no fracture.

2. Bruising with abrasion 2cm diameter left shoulder.

3.  Tender left elbow. X ray revealed fracture to radial head with depression of the bone fragment, a back slab was applied until the swelling subsided. A full plaster was applied after the swelling had subsided.”

19. [19]
    His left arm was in a cast for 6-8 weeks and gave him some minor discomfort. He suffers no permanent residual disability to his elbow. There are no neurological sequelae which were caused by the fall. In this regard I prefer the uncontested evidence of Dr Bradshaw to that of Dr Todman. By far the most significant injury is the psychological injury discussed in the reports of Drs Alcorn and Grant. The plaintiff’s sense of injustice and grievance, and obsessional personality traits coupled with the events of the 21^st April 1998 caused him to become withdrawn and emotionally labile. He ruminated constantly on the events and his sense of grievance, to the extent that to relieve the stress he was causing within his family, he moved into a room in the garage. He took no medication for his psychological stress, but took some pain killers for his injuries. He had some counselling sessions with Dr Tinsley which helped. Dr Tinsley could not be located at the time of trial, so the only evidence on this point comes from the plaintiff. Eventually he pulled out of his mood and was able to return to some work in November 1998. It follows that for seven months he was not able to work because of his emotional state although any award has to be discounted for two factors. Firstly, I accept the opinion of Dr Alcorn that some of his psychological stress was due to his long term grievance with the second defendant, although clearly this had not catapulted him into a major emotional decline until the incident. The incident is thus the main contributing factor to his distress, but not the only factor. Secondly, the evidence establishes that after accepting a voluntary redundancy in 1995 the plaintiff had difficulty in obtaining work as an aluminium fitter. To that extent, his claim for economic loss in the period between April and November 1998 should be discounted. No claim for future economic loss is pursued; nor could it given the plaintiff’s own evidence.

20. [20]
    I assess damages as follows:

21. [21]
    I give judgment for the plaintiff against the second defendant for $6,297.93.

22. [22]
    I dismiss the claim for damages for personal injury.

23. [23]
    Before referring to the issue of costs, I will refer to some of the authorities, as there is an argument that in the event of my findings of fact (and of credibility and reliability) being overturned; the plaintiff may nevertheless still fail against the second defendant if it was found that he was deliberately pushed by the first defendant. There is no doubt that, on the plaintiff’s version of events, he was deliberately pushed down the stairs. There is really no room at all – on his version – to find that he was negligently pushed down the stairs. A deliberate push in those circumstances would constitute an assault in terms of s. 245 of the Criminal Code. It would therefore amount to an intentional tort. In Howard v. State of Queensland [2000] QCA 223, Thomas JA (with whom McMurdo P and Ambrose J agreed) said (at para 14):

“The difficulty of implying vicarious liability in cases of intentional torts was recognised by Murray J in Hart-Roach v. Public Trustee [1998] WASC 34, 11.2.98. His Honour stated:

“A difficulty which may emerge is that the tort of public misfeasance is one of those intentional torts to which I referred earlier. It requires an act which is in fact and in law unauthorised, and which is done with the mental element that there was an actual intention to cause injury, or that it was known that there was a lack of power and injury might well result, or that there was reckless indifference to the existence of power and likelihood of injury. That being so, it is difficult to conceive that the ordinary rules about vicarious liability could apply.”

24. [24]
    In Howard, the Court of Appeal upheld a demurrer to a Statement of Claim on the basis that the intentional tort (in that case pursuant to s. 43 of the Whistleblowers Protection Act 1994 (Qld)) “is such that it may be committed only by the direct acts of a person or corporation and that vicarious liability for the acts of others is excluded”: per Thomas JA (at para 17). Although, as Mr de Plater submits, Howard is factually distinguishable, it is difficult to see how the plaintiff here could avoid the application of the general principles stated in the judgment. On the evidence, it is difficult to see how the plaintiff could succeed against the second defendant on the basis of the more confined tests that emerge in cases such as Deatons Pty Ltd v. Flew (1949) 79 CLR 370. Mr de Plater submits that if it was found that the first defendant deliberately pushed the plaintiff, the proper test is that governed by what was accepted by the New South Wales Court of Appeal in Commonwealth of Australia v. Connell (1986) 5 NSWLR 218. Glass JA (at 221) said:

“I would conclude that conduct by an apprentice sailor is within the scope of his service or duty or authority if it is authorised expressly or impliedly or is incidental to what he is authorised to do, even though it may be performed in an unauthorised way. If, whoever, it is not authorised expressly or impliedly and is not so connected with authorised conduct as to be an improper mode of performing it, it is an independent unauthorised act and is outside the scope of his service.”

25. [25]
    I accept that approach to be correct as a matter of law. I do not accept (as Mr de Plater submits) that the factual situation here is analogous to a security firm being held vicariously liable for the conduct, namely an unlawful assault, by one of its employed hotel bouncers as was the case in Kirwood v. Bishop & Ors. (Unreported judgment of the District Court, No. 4695 of 1988, 2.6.92 per Robin DCJ). In the same way it is distinguishable from the facts in Canterbury Bankstown Rugby League Club Pty Ltd v. Rodgers (1993) Aust Tort R 81-246 in which the employer was held vicariously liable for the headhigh tackle outside the rules of the game perpetrated by its employee on the plaintiff. The defendant was held so liable on the basis that it had encouraged its employee to go outside the rules.

26. [26]
    What all of the cases demonstrate is that whether or not the conduct constituting the intentional tort is expressly or impliedly or incidental to what the employee is authorised to do, is a question of fact. Given the uncontested evidence of the second defendant as to the scope of his authority and duties as Branch Manager at the second defendant’s Maroochydore office (T.226 - ll.7-51); it is difficult to conclude that an intentional pushing of the plaintiff down the stairs of the office in all the circumstances, was within the scope of his duties, such as would render the second defendant vicariously liable for the results of its employee’s intentional acts.

27. [27]
    In light of my findings, it is not necessary to reach any final conclusion.

Costs

28. [28]
    I will hear submissions on costs. In my view, the second defendant by its unfair actions in not honouring the legitimate claims of the plaintiff, has substantially contributed to the circumstances which lead to the unfortunate incident in April 1998. The plaintiff has failed in his claim substantially, but I would particularly like to hear submissions as to the exercise of my discretion (r. 689.1) in the light of Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748. The plaintiff has succeeded in part of its claim which occupied I estimate about 10% of the time taken in the trial, and I have found that but for the actions of the second defendant, it is highly unlikely that the plaintiff would have entered the premises on the 21^st April 1998. I am satisfied that the first defendant was not personally responsible at all for the attitude taken by the head office of the second defendant in Brisbane. I invite submissions, therefore, as to whether I should be aware of any agreement or understanding between the defendants as to their costs of the proceedings. If the second defendant has indemnified Mr Brown for any costs he may occur, that may be a relevant factor for me to consider, as may the case be if he is to be personally liable for any costs. I direct the parties to provide written submissions on the question of costs within seven days of today’s date, and I will adjourn the matter to a date to be fixed at which time I will make orders as to costs.