O'Connell v 1st Class Security P/L
[2012] QDC 100
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- Unreported Judgment
- O'Connell v 1st Class Security P/L[2012] QDC 100
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O'Connell v 1st Class Security P/L[2012] QDC 100
O'Connell v 1st Class Security P/L[2012] QDC 100
DISTRICT COURT OF QUEENSLAND
CITATION: | O'Connell v 1st Class Security P/L [2012] QDC 100 |
PARTIES: | JOSEPH DANIEL O'CONNELL (Plaintiff) V 1ST CLASS SECURITY PTY LTD (ACN 122 240 251) (Defendant) |
FILE NO/S: | BD 3003/10 |
DIVISION: | Civil Trial |
PROCEEDING: | Claim |
ORIGINATING COURT: | District Court Brisbane |
DELIVERED ON: | 18 May 2012 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 7, 8, 9 December 2011 and written submissions to 15 May 2012 |
JUDGE: | Andrews SC, DCJ |
ORDER: | Judgment for the plaintiff against the defendant in the sum of $ 44,318.54. Costs reserved |
CATCHWORDS: | TORTS – NEGLIGENCE – where bouncer tried to assist police as they were performing an arrest - whether bouncer breached duty to exercise reasonable care in the performance of duties as a security officer. TORTS – NEGLIGENCE - BATTERY – STATUTORY DEFENCES FOR INJURING OTHERS WHILE ASSISTING POLICE – whether plaintiff was committing an indictable offence at the time the bouncer intervened – whether bouncer assisted police at time of arrest – whether force used by bouncer reasonably necessary – whether force used by defendant’s employee likely to cause grievous bodily harm. TORTS – NEGLIGENCE – VICARIOUS LIABILITY – whether employer vicariously liable for bouncer’s acts - whether bouncer’s intervention was so connected with his authorised acts that it may rightly be regarded as a way of doing those acts – whether intervention in the ostensible pursuit of defendant’s business. TORTS – BATTERY – whether bouncer committed a battery upon the plaintiff. TORTS – BATTERY – STATUTORY DEFENCES – whether Civil Liability Act s 45(1) applies to battery. TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – where plaintiff committed a breach of the peace and was resisting arrest - whether plaintiff’s injuries were caused or contributed to by his own conduct. Civil Liability Act 2003 (Qld) s 45, s 47, s 52, s 72A. Criminal Code 1899 (Qld) s 6, s 254, s 260, s 340(b). Police Powers and Responsibilities Act 2000 (Qld) s 615. Corliss v Gibbings-Johns [2010] QCA 233, applied. New South Wales v Lepore (2003) 195 ALR 412, applied. Ferguson v Calnan [2002] QSC 342, considered. |
COUNSEL: | Morgan for the plaintiff Atkinson for the defendant |
SOLICITORS: | Shine Lawyers for the plaintiff Barry Nilsson for the defendant |
Issues
- [1]The plaintiff was a 24 years old backpacker, drunk and angry about being evicted from his hostel late at night. Police directed the plaintiff to stay 100 metres away from the hostel and its adjoining bar. He walked off but returned behaving aggressively towards the bouncer who guarded the entrances to the hostel and bar. Two constables also returned. One constable told the plaintiff that he was under arrest. Easier said than done. The constables took hold of the plaintiff. The bouncer watched. The constables took a little time to move the restive plaintiff to the bonnet of their car but eventually bent him over it face down. One constable took his hands off the plaintiff to reach for handcuffs. The other constable had not let go. The bouncer stepped in, bumped the officers aside and took the plaintiff to the ground. The plaintiff’s leg broke.
- [2]Statutory defences exist for people who injure others while helping police. The bouncer claimed he was helping. The defences depend on the facts and primarily on the resolution of the following issues.
- [3]Was the plaintiff still committing an indictable offence when the bouncer intervened? Was the bouncer helping the constables? Was the force the bouncer used reasonably necessary to help the constables or to overcome the plaintiff’s resistance? Was the bouncer’s employer vicariously liable for the acts of the bouncer? Was this a battery? Did the plaintiff cause his injury through his drunken, criminal, aggressive behaviour? Do the statutory defences apply to the tort of battery?
- [4]Quantum of damage is also disputed.
Other Liability Facts
- [5]The plaintiff had been staying as a paying guest at Cloud 9 Backpackers, a hostel. It was 9 June 2009. The hostel was at 350 Upper Roma Street, Brisbane. The hostel had licensed premises adjoining and called The Beetle Bar.
- [6]The licensee and operator of Cloud 9 Backpackers[1] had engaged a company in the security business to provide security personnel and security services at The Beetle Bar. That security company was the defendant, 1st Class Security Pty Ltd. That evening the defendant had supplied Mr Simi to the licensee as a security officer. Mr Simi was a servant or agent of the defendant and performed the duties of a security officer at the bar that evening.
- [7]The plaintiff was drinking alcohol at the bar from about 5.30pm for five hours. He had gone to the bar at “happy hour” to drink with other patrons he might meet. In the course of the evening, he became intoxicated. At 10.00pm, the bouncer, Mr Simi, started his security work. The bar staff identified the plaintiff to Mr Simi as a person causing problems for other patrons. For safety, Mr Simi decided it was preferable to wait for the plaintiff to step outside for a cigarette and to then prohibit the plaintiff’s return. The plaintiff’s height at trial was approximately 5ft 11in. His weight at the time of the incident was approximately 75 kilograms.
- [8]At about 10.30pm the plaintiff stepped out of the bar to smoke a cigarette. When he tried to return he was refused entry on the basis that he was intoxicated and had abused hostel staff. The person who refused him entry was Mr Simi.
- [9]After he was refused entry to the bar the plaintiff entered his hostel next door. He was told by one or more of the staff members of the hostel that he would not be permitted to stay at the hostel because he was intoxicated and disorderly. When the plaintiff protested that he did not wish to leave Simi put him to the hostel floor. Simi then took the plaintiff to his room, obtained his luggage and ejected the plaintiff with his luggage from the premises. However, he left behind the plaintiff’s camera and the plaintiff had no way of recovering it. The plaintiff remained outside and upset.
- [10]At about 11.50pm the plaintiff was outside Cloud 9 Backpackers. Four officers of the Queensland Police Service: Constable La Presle, Constable Donovan, Senior Constable Braithwaite and Constable Avenell, attended and issued a direction to the plaintiff to move on and to leave the vicinity of the hostel. The plaintiff had no alternative accommodation arranged. The plaintiff asked to be arrested to emphasise to the police the point that he had nowhere else to stay. However, he soon walked off in compliance with the direction. He walked to a nearby hostel called Chill Backpackers at 328 Upper Roma Street, Brisbane to ask whether there was accommodation available that night. A concerned young woman who had met him earlier at Cloud 9 Backpackers offered to pay for accommodation for him at Chill Backpackers. He declined to accept her charity. The plaintiff did not secure accommodation there so he walked back towards Cloud 9 Backpackers and The Beetle Bar.
- [11]When he returned he was on the footpath alongside Upper Roma Street and a short distance from Cloud 9 Backpackers and The Beetle Bar. Mr Simi stood guarding the door to the bar. The plaintiff maintained a distance between himself and the bouncer but shadow-boxed at the bouncer. He also struck a post box, and displayed aggressive agitation. He spoke angrily at Simi. The plaintiff could not recall in cross-examination whether he had said to Simi “I’ll kill you” or “I’ll burn the place down”. He did not answer that such intemperate threats would have been out of character. If he made those threats, it was before the police returned, while he was drunk, physically outmatched by Simi and keeping his distance. In short, if he made those threats, he was sound and fury, signifying nothing. He was no immediate danger to Simi or the premises. He had no apparent means to carry out either threat. If he made those threats, the threats did not provoke Simi to act on them when they were made.
- [12]Constables La Presle and Donovan presciently returned to the scene and saw the plaintiff there and misbehaving. They determined to arrest him for contravening the earlier direction to move on.
- [13]Constable La Presle became a police officer in 2006. He was about 85 kilograms and 175 cm tall. Prior to this night he would have made 100 arrests. He said that at the time of the accident he was about 6ft 3in tall and weighed approximately 85 kilograms. Prior to 9 June 2009 he had performed about 25 arrests as a police officer. Three involved violence. Each police officer outweighed the plaintiff by about 10 kilograms. The plaintiff and the two constables each appeared to be a healthy weight.
- [14]Constable La Presle took hold of the plaintiff’s right arm and put his left hand between the Plaintiff’s shoulder blades. Constable Donovan grabbed his left arm. It was a combined restraint and they were trained to apply it: the “come along” hold.
- [15]The plaintiff began to tense his arms. He briefly broke free of Constable La Presle’s hold, but Constable La Presle grabbed him again. The constables’ training was to subdue offenders as quickly as possible to minimise risk. The constables successfully marched the plaintiff several two or three metres to the police car to place him against its bonnet to exert more control. He was struggling during this time. Whatever he sought to achieve by struggling is unknown. The constables’ plan was to place the upper front half of his body down on the bonnet of the police vehicle. Constable La Presle, on the right hand side of the plaintiff, successfully used his left hand to press the plaintiff’s torso face down on the bonnet of the police vehicle while Constable Donovan held the plaintiff on the left side. Both officers gave evidence that the plaintiff was still resisting while on the bonnet.
- [16]Constable La Presle decided to handcuff the plaintiff as he lay upon the bonnet. Ordinarily Constable La Presle would have maintained one hand on him while reaching with another hand to take handcuffs from the back of his belt. He reached around with his right hand to grab his handcuffs. He had some trouble with them so he released his left hand from the plaintiff’s back, knowing Constable Donovan still had a hand on him on the bonnet.
- [17]This arrest was taking longer than it should because of the plaintiff’s resistance. Constable Donovan accepted cross-examining counsel’s suggestion that it took two minutes. That acceptance was not given as if the constable was making an accurate estimate of the time and I find that it took less time than that before Mr Simi intervened. Even allowing for the plaintiff’s briefly breaking free of one constable’s hold, even allowing for the inconvenience caused by his continuous resistance by flexing and tensing, the trained constables moved him only two to three metres before bending him over the bonnet. Two minutes for the episode is not plausible. If either of the constables had been a third police officer observing the struggle on that evening, they would have intervened to give assistance. However, their implied opinion that three officers may have been more useful than two during the arrest does not lead to a finding that on the evening they did not have adequate control of the arrest process or that it was reasonable for Mr Simi to intervene as he did. Each of the constables was trained in arrest technique. Each was trained in techniques which lessened the risk of injury to the person being arrested. Neither would have put the plaintiff to ground. I infer they would know the procedure that other officers were likely to follow and infer they would have been able to work cooperatively because of this. On the hypothesis that the constables were watching two other constables trying to arrest the resistant plaintiff, their opinion that they would have assisted was obviously based on the reasonable assumption that there was something to be gained from their help and nothing to lose. This could not be said of Mr Simi who did not have similar training or the same priority to minimise risk to the person he subdued.
- [18]The constables were armed with pistols and had other accoutrements on their belts.
- [19]The bouncer claimed it was a dangerous situation, that the plaintiff had earlier made threats to kill and stab him and to burn the place. The bouncer claimed the plaintiff’s hands were dangerously close to the constables’ holstered pistols and appeared to brush a pistol.
- [20]Mr Simi weighed 105 kgs at the time, was sober and was impressively athletic. Simi involved himself in the arrest. He was not invited nor welcomed. The bouncer reached for the plaintiff bumping aside Constable Donovan who, until then, had at least one hand on the plaintiff. The intervention caused Constable Donovan to lose grip of the plaintiff. Because of the bouncer neither constable then had a hand on the plaintiff. Mr Simi was not acting in cooperation with the police. He physically caused the police to lose control. Simi got between the plaintiff and Constable Donovan. The bouncer grabbed the plaintiff. Constable La Presle asked the bouncer to desist. The bouncer put the plaintiff in a headlock and La Presle again told him to desist. When the bouncer had the plaintiff in a headlock against the bonnet this prevented La Presle from putting handcuffs on the plaintiff. Constable Donovan then had no opportunity to grab the plaintiff. There were at least two requests by La Presle to desist before the bouncer threw the plaintiff to the ground. He claimed he did not hear La Presle. The bouncer probably heard the instruction. The bouncer deliberately put the plaintiff on the ground with a “take down” manoeuvre he had been taught. Constable La Presle described it as a hip throw or Judo type throw. Constable Donovan could not remember how the bouncer put the plaintiff on the ground. I accept La Presle’s evidence on this aspect. Putting the plaintiff on the ground or throwing him were not things either constable would have done or needed done by Simi. They regarded it as sufficient to subdue the plaintiff against the bonnet. The defendant pleaded that Mr Simi lost his balance and fell on the plaintiff. Simi did not give this evidence. It seems probable that Simi’s “take down” manoeuvre involved more than forcefully throwing the plaintiff on the ground. It included falling on the plaintiff so as to be able to restrain the plaintiff on the ground. I find that Mr Simi deliberately fell on the plaintiff as part of the manoeuvre. The plaintiff did not consent to any application of force by Simi.
- [21]During these events, neither Constable La Presle, nor Constable Donovan had fallen to the ground. Constable Donovan’s opinion was that the plaintiff’s resistance was in an attempt to break free but not to strike, kick or harm either constable. Constable La Presle’s opinion was that the plaintiff was immobilised on the bonnet, and Constable La Presle did not feel threatened. His evidence, somewhat inconsistently, was of movements by the plaintiff when La Presle had released his hold on the plaintiff. His opinion was that the constables did not require the bouncer’s assistance. Constable Donovan’s opinions were: that while he and La Presle had hold of the plaintiff on the bonnet, they were in complete control, despite the plaintiff’s struggles, that until the bouncer intervened this was a routine arrest, that by pushing Donovan out of the way the bouncer interfered with and delayed the arrest, that Simi caused the police to lose control of the plaintiff and that prior to Simi’s intervention the police needed no help.
- [22]I accept those opinions of each constable as honest and correct.
- [23]The bouncer fell upon the plaintiff as he threw him to the ground. The plaintiff’s leg was fractured and displaced into a grotesque position by Simi from the “take down”. In going to ground the plaintiff and Simi went from the footpath into the kerb and roadway.
- [24]Out of the conflicting versions of the four persons who gave evidence of the events on the footpath when the plaintiff was injured, two contentious factual issues emerged which, if accepted, would each favour the defence.
- [25]One was that after the plaintiff had been face down on the bonnet of the police car and Constable La Presle removed his hand from the plaintiff the plaintiff rolled onto his back with his legs cocked and the plaintiff was then in a position where he could kick out at police officers. Such a finding would be open on the evidence of Constable Donovan. It did not emerge in Constable Donovan’s evidence-in-chief but was suggested to him in cross-examination when he accepted it. There was an arguable corroboration of legs in the air in the evidence of the bouncer. I found the bouncer’s evidence of seeing the plaintiff’s legs in the air unconvincing. He made no mention of the plaintiff rolling over. A finding that the plaintiff rolled onto his back with his legs cocked and that he was in position where he could kick out at police officers would be relevant to whether the bouncer’s intervention was necessary at that time and would be relevant to the reasonableness of the bouncer’s force. I do not make that finding. Despite the unreliability of the plaintiff’s intoxicated memories, on this aspect I accept his recollection that the attack upon him came from behind and this corroborates the evidence of Constable La Presle that the plaintiff was face down on the bonnet when the bouncer intervened. The evidence of La Presle was that he did not remember the plaintiff’s rollover and leg cocking. It would have been a dangerous repositioning by the plaintiff while La Presle voluntarily kept both hands off him. It is difficult to accept that La Presle would forget a suddenly dangerous situation which arose. It is more difficult to accept that he would forget because he would have been partly responsible for the dangerous rollover as it would have occurred because La Presle removed his restraining hand. La Presle accepted seeing that the plaintiff made a movement of some kind for which “wriggle” was the wrong descriptor. It seems to me more likely that La Presle allowed his hands to be off the plaintiff because the process of arresting the plaintiff was then under control. La Presle’s evidence was delivered with an obvious scepticism about the contrary recollection by Constable Donovan. I prefer the evidence of La Presle and the plaintiff on this contentious issue. To accept La Presle is to reject the evidence of Donovan on this aspect. My impression of Constable Donovan as he gave evidence was that he tended to unhesitatingly accept propositions of cross-examining counsel notwithstanding their occasional inconsistency with his earlier answers. I doubted the accuracy of some of his recollections. He had no reliable recollection of the “takedown” though it must have occurred within seconds of the leg cocking he accepted that he saw. The plaintiff’s rollover and leg cocking were not described by Constable Donovan. Had they been described by him the description may have created a more convincing impression that he remembered it. Instead, the evidence of the rollover and leg cocking arose when Constable Donovan accepted the defendant’s counsel’s leading propositions that these two events occurred. If the constable had such a memory of the plaintiff’s rolling onto his back and cocking his legs it would have meant that before Simi intervened the constables had lost control and the plaintiff’s body position would have created an obvious danger to their safety because he would have been able to kick. Such a loss of control by the constables and such a danger was starkly inconsistent with Constable Donovan’s opinions set out above and with the evidence, opinions and actions of La Presle.
- [26]The other contentious issue was whether the plaintiff’s hands touched a police officer’s side arm. Neither police officer gave evidence of this. I would have expected them to have been vigilant about such a risk and to have remembered it if it happened. I reject the bouncer’s evidence that it occurred. Another basis to reject it is that it emerged first in the bouncer’s evidence. It was not in the comprehensive pleading for the defendant. It was not put to the plaintiff or the police. My rejection of the bouncer’s evidence about this is also based on my impression that his evidence about how he injured the plaintiff was incredible. The bouncer’s confident evidence was essentially that after he had taken the plaintiff to ground, the plaintiff jumped up requiring the bouncer to bring him down again with a tackle to the ground. If that recollection was accurate it would follow that the plaintiff’s femur was not broken until the tackle felled him for the second time. Only the bouncer recalls two occasions when the plaintiff was felled in front of the police. I reject the bouncer in this respect. His enthusiastic recollections of his tackle and his courtroom memory of the hand brushing the pistol cause me to doubt his evidence on any issue which was obviously contentious.
- [27]The defendant admits that Simi owed the plaintiff a duty to exercise reasonable care in the performance of Simi’s duties as a security officer.
- [28]Was there a breach of duty by Simi? Having found that the plaintiff did not roll onto his back on the bonnet, that he did not cock his legs in the air, that the plaintiff’s leg movements did not give an impression that he could kick a police officer, that the plaintiff did not brush his hand against a pistol and that the constables were in control of the plaintiff during a routine though prolonged arrest, I am not satisfied that it was reasonable for Simi to intervene by taking hold of the plaintiff as he did. It assists to recall that Mr Simi knew the plaintiff was intoxicated and knew that he had easily grounded and controlled the plaintiff earlier in the hostel. After intervening, I am satisfied that Mr Simi was told twice to stop before the “take down”. I am not satisfied that it was reasonable for Mr Simi to continue with a view to deliberately performing a “take down” manoeuvre on the plaintiff. I am not satisfied that Mr Simi acted with reasonable care by deliberately and forcefully throwing the plaintiff onto the ground and falling on him. It was foreseeable that the “take down” would injure the plaintiff. Subject to statutory defences, Mr Simi’s conduct would breach his duty to exercise reasonable care in the performance of his duties as a security officer.
- [29]Was there a battery by Simi? The defendant did not submit otherwise.
- [30]"Battery" is committed by a physical act of a defendant which directly interferes with the person of a plaintiff, and the defendant either intended the act or should have foreseen the result of it. It is sufficient that Mr Simi intended to do the act that results in the battery. It is not necessary that he intended any injury.[2]
- [31]I find that a battery has occurred.
- [32]Was the plaintiff committing an indictable offence when the bouncer intervened? If the plaintiff was committing an indictable offence, for example by resisting arrest, at the time that the bouncer injured him it would be critically relevant to the application of the defence at s 45 of the Civil Liability Act. Section 45 (1) makes a condition for the operation of the section’s defence that the breach of duty from which civil liability would arise, apart from the section, happened while the person who suffered harm was engaged in conduct that is an indictable offence.
- [33]Plaintiff’s counsel submitted in writing:
it could not be said that the breach of duty, ie. maintaining the Plaintiff in a headlock and forcing him to the ground and falling on him and breaking his leg “happened while the person who suffered harm was engaged in conduct that is an indictable offence”, because the Plaintiff had already been arrested and immobilised by the two police officers.
- [34]The plaintiff’s pleaded Reply[3] to the Amended Defence of the Defendant pleaded two possibly contradictory allegations. At paragraph 6 (j) (ii) of that pleading the plaintiff denied that he was breaching the peace at the time that Simi intervened. At paragraph 11 the plaintiff admitted that “the breach of duty on the part of Simi happened while the plaintiff was engaged in conduct that constituted an indictable offence”. The possibility of conflict passed unremarked by counsel for each party. The defendant’s counsel argued that the facts supported a finding of a continuing breach of the peace and that the plaintiff’s struggles exacerbated the breach of the peace. Plaintiff’s counsel argued that the facts supported a finding that the breach of the peace had finished when Simi intervened as “the Plaintiff had already been arrested and immobilised”. Neither counsel addressed the issue of the crime of resisting arrest. There is no contradiction between those two paragraphs of the Reply if they are read as denying that the breach of peace continued when Simi intervened but admitting that some other offence which was an indictable offence was constituted by the plaintiff’s conduct at the time when Simi breached his duty to the plaintiff.
- [35]It is a crime to resist a police officer while the officer is acting in the execution of the officer’s duty.[4] In the circumstances of the admission on the pleadings, I proceed on the basis that the plaintiff admitted that the plaintiff was committing an indictable offence when Simi breached his duty to the plaintiff but the plaintiff denies that he was also then breaching the peace. It seems appropriate to read the Reply as implying that the plaintiff’s physical resistance continued as Simi intervened and the plaintiff’s resistance to arrest amounted to an indictable offence. In case that was not the proper interpretation of the Reply I will consider the evidence. Constable Donovan’s evidence was that while the officers were in control of the plaintiff on the car’s bonnet, the plaintiff was still struggling. Constable La Presle’s evidence, though not properly elaborated, was consistent with the plaintiff continuing to move while on the bonnet. Constable La Presle’s evidence, again though not properly elaborated, was to accept the proposition that from the moment he touched the plaintiff until Simi intervened, the plaintiff resisted. There was no objection to that opinion evidence and no challenge to that opinion in cross-examination. The plaintiff, while denying that he was kicking and screaming during the arrest, did not suggest that he was compliant.[5] I find that when Simi intervened to “take down” the plaintiff, the plaintiff was committing the indictable offence of resisting arrest.
- [36]What is the effect of Civil Liability Act 2003 (Qld) section 45? That section provides, so far as is relevant:
45Criminals not to be awarded damages
- (1)A person does not incur civil liability if the court is satisfied on the balance of probabilities that—
- (a)the breach of duty from which civil liability would arise, apart from this section, happened while the person who suffered harm was engaged in conduct that is an indictable offence; and
- (b)the person’s conduct contributed materially to the risk of the harm.
- (2)Despite subsection (1), the court may award damages in a particular case if satisfied that in the circumstances of the case, subsection (1) would operate harshly and unjustly.
- (3)If the court decides to award damages under subsection (2), the court must assess damages on the basis that the damages to which the injured person would be entitled, apart from this section, are to be reduced, on account of the injured person’s conduct, by 25% or a greater percentage decided by the court to be appropriate in the circumstances of the case.
- (4)It does not matter whether the person whose conduct is alleged to constitute an indictable offence has been, will be or is or was capable of being proceeded against or convicted of an indictable offence.
- (5)If the person has been dealt with for the offence, it does not matter whether the person was dealt with on indictment or summarily.
- [37]Neither party made submissions on the application of s 45 (1) (b) or s 45 (2) or s 45 (3). The parties were probably concerned more by the consequences upon the operation of s 45 if Simi committed a battery upon the plaintiff. I interpret the word “conduct” in s 45 (2) as referring to the “conduct that is an indictable offence” in s 45 (1) and do not interpret it as a reference to the plaintiff’s conduct generally. This interpretation means that in considering s 45 I can ignore the plaintiff’s earlier conduct in drinking alcohol until he made himself insensible and his earlier behaviours which were designed to infuriate the generally patient bouncer. The plaintiff’s indictable offence was resisting arrest and it is only his conduct in resisting arrest which the section permits to be examined for considering the defence.
- [38]The reference in s 45 (1) (b) is to “the harm” as distinct from a reference to unspecified “harm”. The difference is significant. It will more often be that a person’s conduct will materially contribute to the risk of the harm the person suffers if that harm is a reasonably foreseeable consequence of the conduct. By resisting arrest when he did the plaintiff contributed materially to the risk of suffering some harm but not “the harm” which he actually suffered. His conduct in resisting arrest contributed materially to the risk of suffering at least the physical injuries which were reasonably foreseeable from having his arms forcefully held and from being restrained over a car bonnet despite his struggles. Shoulder or muscle strain and bruises, had they been caused by the forces created by the actions of the police and the plaintiff, would have been reasonably foreseeable as harm which might be suffered by the plaintiff while he committed the offence of resisting arrest, in the way he did. The actual harm he suffered was not a reasonably foreseeable consequence of the actual resistance to arrest which the plaintiff was then displaying. The circumstances of the offence at the time the plaintiff suffered “the harm” were that the two constables were in control of the plaintiff who was bent over the bonnet but continuing to resist arrest by moving. I have not been persuaded that his resistance at that stage was more than of a minimal physical kind as he lay face down while one officer had a hand on him. He was picked up from the bonnet and thrown to the ground and Simi fell onto him. The force involved in that “throw down” was sufficient to cause a grotesque fracture of the right femur such that when Simi got off the plaintiff, the plaintiff’s kneecap was turned to face backwards and his right foot ended up beside his face. The fracture required “a reasonably significant degree of violence” or “quite considerable force” in the words of the orthopaedic expert. Such force and such an injury were not reasonably foreseeable at the stage of the arrest when Simi intervened.
- [39]I am not satisfied on the balance of probability that the plaintiff’s conduct when Simi intervened was contributing materially to the risk of “the harm” which he suffered from Simi’s intervention. It follows that the plaintiff’s cause of action based upon negligence is not defeated or affected by the defence in s 45(1) of the Civil Liability Act.
- [40]The plaintiff’s counsel submits that for a further reason the defendant fails to make good a defence under s 45(1) of the Civil Liability Act. He submits that Simi’s act was a battery and, if so, that the subsection does not create a defence to the cause of action of battery. He submitted, in effect, that s 45(1) (a) relates to only the civil liabilities which arise from a “breach of duty”. He submitted, in effect, that the section does not apply to a tort whose elements do not include a breach of duty. Battery is an intentional tort and it is not necessary to prove a duty or its breach to establish that a battery occurs. Its elements do not include as a necessary element a “breach of duty”. The plaintiff’s counsel relied upon the judgment in Corliss v Gibbings-Johns [2010] QCA 233. The observations relevant to this issue in the judgment of Applegarth J were obiter dicta.[6] However his Honour expressed the view that the section does not apply to a case in which civil liability arises from an intentional tort such as an assault.[7] Holmes JA and Chesterman JA agreed with his Honour’s reasons. I respectfully agree with their Honours reasons, obiter though they were. The same reasoning would apply to the tort of battery.
- [41]Counsel for the defendant submitted that the Civil Liability Act does leave some scope for a contrary argument. Counsel for the defendant referred to the Civil Liability Act at s 52 and s 72A to support an argument that s 45 applies to intentional torts and to urge that the obiter in Corliss be treated as unpersuasive. In Civil Liability Act s 52 a prohibition is created against awarding exemplary, punitive or aggravated damages in relation to a claim for personal injury damages. The prohibition was not given universal application. There were exceptions. One of the exceptions allows claims for exemplary, punitive or aggravated damages if the act that caused the personal injury was an unlawful intentional act done with intent to cause personal injury. Section 52 does not refer to intentional torts. Its reference to “intent to cause personal injury” is not to be read as a clumsy way of referring to an intentional tort. The reference does not justify interpreting s 45 as if s 45 refers to any instance of civil liability whether arising from a breach of duty or an intentional tort which does not involve a breach of duty. Section 52 has a discrete purpose. The words of s 52 do not provide a relevant context to affect the interpretation of s 45.
- [42]The Civil Liability Act s 72A is in Part 1A of the Act. Its purpose is to allow a person to make an apology about a matter without the apology being construed or used as an admission of liability in relation to the matter. Part 1A applies to civil liability of any kind but with certain exceptions. One relevant exception is civil liability of a person for an unlawful intentional act done by the person with intent to cause personal injury. A battery could, in some cases, fall within that exception, though a battery can occur without intent to cause personal injury. The point of the argument, I infer, is that the reach of Part 1A extends to the intentional tort of battery and it follows that the Civil Liability Act has application to battery at s 72A and that should cause one to interpret Civil Liability Act s 45 where it reads “the breach of duty from which civil liability would arise” as if it read “the intentional act from which civil liability would arise or the breach of duty from which civil liability would arise”. I reject the argument. S 72A has a discrete purpose and its words do not provide a relevant context to affect the interpretation of s 45. I do not interpret it as revealing an intent that s 45 should be interpreted to apply to a battery.
- [43]The defence created by s 45(1) of the Civil Liability Act is not applicable to the plaintiff’s cause of action in battery.
- [44]The defendant relies also on the Criminal Code 1899 (Qld) ss 254 and 260. They provide so far as is relevant:
254 Force used in executing process or in arrest It is lawful for a person who is engaged … in making any arrest, and for any person lawfully assisting the person, to use such force as may be reasonably necessary to overcome any force used in resisting such execution or arrest.
260 Preventing a breach of the peace It is lawful for any person who witnesses a breach of the peace to interfere to prevent the continuance or renewal of it , and to use such force as is reasonably necessary for such prevention and is reasonably proportioned to the danger to be apprehended from such continuance or renewal, and to detain any person who is committing or who is about to join in or to renew the breach of the peace for such time as may be reasonably necessary in order to give the person into the custody of a police officer. (bold added for emphasis)
- [45]What is the consequence for the defendant if the bouncer’s act was “lawful” because it complied with the conditions in Criminal Code s 254 or s 260? The answer appears in the Criminal Code Act 1899 at section 6 (1) and would appear to protect the bouncer from any civil proceeding for loss caused by his use of force if that use of force falls within the condition described by either section. The Criminal Code Act 1899 s 6 provides:
6Civil remedies
- (1)When by the Code any act is declared to be lawful, no action can be brought in respect thereof.
- [46]The defendant’s counsel submitted with respect to the Criminal Code s 260 that the breach of the peace by the plaintiff continued until Mr Simi intervened. It was common ground between counsel for each party that there had been a breach of the peace. Counsel for the defendant submitted that the plaintiff’s struggles against Constable La Presle while the Constable was trying to subdue and arrest the plaintiff continued the breach of the peace. Counsel for the plaintiff did not meet that submission. Instead, he submitted that the breach of the peace had ended because the police officers were in control of and had immobilised the plaintiff when Mr Simi intervened. It is a nice question whether the minimal physical movements made by the plaintiff as he lay face down on the bonnet resisting arrest were also a breach of the peace or a continuation of the breach of the peace. There is no evidence that the plaintiff was speaking at this stage. For my assistance the defendant’s counsel referred to several cases as to the meaning of a breach of the peace. I regard it as unnecessary for me to determine whether the breach of the peace was continuing.
- [47]It is unnecessary because of two factual matters. Firstly, I am not satisfied that the force used by Mr Simi was “reasonably necessary” to “prevent the continuance or renewal of” the breach of the peace by the plaintiff. Secondly I am not satisfied that the force used was “reasonably proportioned to the danger to be apprehended” from such continuance or renewal of a breach of the peace. The force which Mr Simi used when he performed his “takedown” was not such force as was reasonably necessary to prevent a continuance or renewal of a breach of the peace. A hand on the back may have been reasonably necessary but the “takedown” was not. The force used by Mr Simi was also not “reasonably proportioned to the danger to be apprehended” from a continuance or renewal of the plaintiff’s breach of the peace. Objectively: the constables were in control, the danger to be apprehended was minimal, the plaintiff’s final resistance was minimal, the only effect of the resistance was to delay the application of handcuffs. The force applied was much more than was reasonably necessary and was not reasonably proportioned to the danger to be apprehended.
- [48]If the Criminal Code s 260 involves a subjective test of “the danger to be apprehended” then Mr Simi’s belief becomes relevant. I do not accept that Mr Simi apprehended the danger to be greater than was objectively obvious.
- [49]When considering s 254 one sees that the force to be used must be “such force as may be reasonably necessary to overcome any force used in resisting … arrest”. The force used by Mr Simi was more than was reasonably necessary. For that reason the section does not apply. Further, for the section to apply the person must be “assisting” the person engaged in making an arrest. It is unnecessary for me to decide the nice question of whether Mr Simi’s interference which caused the Constables to lose control and delayed the arrest could still have been conduct which was “assisting the person” who was making the arrest. The question appears to require an objective assessment. It appears that intent to assist would be insufficient as would a mistaken belief that he was assisting. The facts found suggest that Mr Simi was not “assisting” the person engaged in making the arrest.
- [50]The defendant relied also on the Police Powers and Responsibilities Act 2000 s 615. It provides so far as is relevant:
615Power to use force against individuals
- (1)It is lawful for a police officer exercising or attempting to exercise a power under this or any other Act against an individual, and anyone helping the police officer, to use reasonably necessary force to exercise the power.
Example—
A police officer may use reasonable force to prevent a person evading arrest.
- (2)Also, it is lawful for a police officer to use reasonably necessary force to prevent a person from escaping from lawful custody.
- (3)The force a police officer may use under this section does not include force likely to cause grievous bodily harm to a person or the person’s death.
(bold emphasis added)
- [51]The force used by Mr Simi was more than “reasonably necessary force” to exercise the power of arrest. For that reason the section does not apply. Because of that finding it is unnecessary to determine whether Mr Simi was “helping the police officer” within the meaning of those words in s 615. The question appears to require an objective assessment. It appears that intent to help would be insufficient as would a mistaken belief that he was helping. The facts found suggest that Mr Simi was not “helping the police officer”.
- [52]The Police Powers and Responsibilities Act 2000 s 615 does not apply to create a defence in this case.
- [53]Mr Montgomery, Orthopaedic Surgeon, confirmed, the injury if left untreated, would cause or be likely to cause permanent injury to health. Thus, it was grievous bodily harm. If s 615 did apply both counsel regarded it as relevant to determine whether the force used by Mr Simi was likely to cause grievous bodily harm. The fact that it caused grievous bodily harm is not determinative. Mr Simi was fit, strong and would have been 25 to 30 kilograms heavier than the 75 kg plaintiff when he lifted the plaintiff off the bonnet and threw him over his hip onto the ground before dropping on top of the plaintiff. The manoeuvre involved force sufficient to cause the fracture. The orthopaedic specialist found the injury unusual for an altercation because of the strength of the human femur. For such a fracture he would ordinarily have expected the cause to have been a fall from a building or the result of a motor vehicle accident. I am satisfied that grievous bodily harm was foreseeable, but not that it was likely.
- [54]However, the finding has no significance as s 615 does not apply to this case. Further, Counsel did not make submissions about the fact that s 615 (3) does not seem to govern the degree of force used by a person who is not a police officer. The subsection seems to proscribe the degree of force used by police officers rather than the degree of force used by their helpers.
- [55]Was there contributory negligence? The defendant pleaded that the plaintiff’s injuries were caused or contributed to by his own negligence. Five particulars were pleaded apart from a reference to the Civil Liability Act s 47. Essentially the particulars were: failing to comply with the direction to move on, behaving violently, abusively and aggressively and becoming so intoxicated that it was reasonably foreseeable that the plaintiff’s capacity to exercise reasonable care for his own safety would become impaired. The defendant has satisfied me of all of those facts. However, I accept the submission of the plaintiff that the chain of causation between the plaintiff’s conduct and his sustaining of injury was broken. The police officers intervened to put an end to his breach of the peace. They were in control of the situation. They did not require nor request assistance and while the police officers had the plaintiff in custody there was no reasonably foreseeable risk of his suffering the injuries which he ultimately suffered. I do not find that the plaintiff was a cause of his own injuries.
- [56]The plaintiff submitted that contributory negligence has no application to the plaintiff’s case in battery. The defendant made no submission. I need not make a finding about the application of contributory negligence to the tort of battery as I have found that the plaintiff did not contribute to the injury for which he claims damage.
- [57]Was the defendant vicariously liable for the acts of the bouncer? The defendant denied that it was vicariously liable for the acts of its servant or agent insofar as those acts were performed in the course of, or in connection with the service or agency. The denial was pleaded to be on the basis that the “allegations…are untrue or cannot be admitted because the issue of vicarious liability is a question of law.”[8] The Uniform Civil Procedure Rules expressly permit a party to plead a conclusion of law. The defendant was at liberty to admit the conclusion of law. The defendant’s pleaded basis for not admitting it is embarrassing. But there is no obligation in the rules to plead a basis for denying a conclusion of law. I infer from reading the pleadings that vicarious liability remained in issue. Yet, the defendant made no submission about vicarious liability despite a comprehensive address about issues of law. Despite the omission of the topic from the defendant’s counsel’s address, vicarious liability for the bouncer seems to remain an issue.
- [58]I find that the bouncer was authorised by the defendant to use force when dealing with disorderly persons, was authorised to guard the entrance against disorderly intrusion and was authorised to concern himself with persons in the area immediately outside the entrance who evidenced an intention to enter. The bouncer was standing guard at the door watching the plaintiff’s antics before police moved to arrest the plaintiff. The antics were an aggressive display sometimes directed at the bouncer and when not directed at him performed for the bouncer’s intimidation. The plaintiff’s conduct was disorderly until police began the process of arresting him. The bouncer moved directly from where he stood guard to intervene as police subdued the plaintiff. There was no submission for the defendant that the bouncer’s intervention was not an authorised act.
- [59]
For present purposes, it is enough to conclude that when an employer is alleged to be vicariously liable for the intentional tort of an employee, recovery against the employer on that basis should not be extended beyond the two kinds of case identified by Dixon J in Deatons: first, where the conduct of which complaint is made was done in the intended pursuit of the employer's interests or in the intended performance of the contract of employment or, secondly, where the conduct of which complaint is made was done in the ostensible pursuit of the employer's business or the apparent execution of the authority which the employer held out the employee as having.
- [60]A test for vicarious liability was applied in the Supreme Court of Queensland in the year before that decision. Though expressed in different words it does not place any lesser burden on the plaintiff to establish vicarious liability. According to that test, if the bouncer’s acts amount to a tort the defendant is vicariously liable for the damage suffered by the plaintiff even for acts the defendant did not authorise provided they were so connected with the acts it did authorise that they may rightly be regarded as modes, though improper modes, of doing them.[10]
- [61]The bouncer’s intervention was so connected with his authorised acts that his intervention may rightly be regarded as a way of doing his authorised acts. Alternatively, I am satisfied that the bouncer’s intervention was in the ostensible pursuit of the defendant’s business. If the intervention was a tort I find that the defendant is vicariously liable for it.
Other Facts Relevant to Quantum
- [62]At the time of the accident the plaintiff was visiting Australia from England, backpacking. He had been doing so for about nine months. After the injury the plaintiff returned to England. At the time of the trial he had retained an immigration agent to obtain a visa to allow him to remain permanently in Australia. The plaintiff was born on 22 April 1985.
- [63]He finished high school in England aged 16. For some years before his injury the plaintiff lived alone in England and his parents and brothers were living in Australia. He was working in 2005 and 2006 in England in a telephone call centre. At material times in England: the plaintiff was living in his grandmother’s home whilst she lived in a nursing home, he paid no rent and his parents paid the gas and electricity bills. His earnings were enough to pay his other bills.
- [64]From the ages of 16 to 18 he was arrested three times in England for conduct related to his regular weekend binge drinking.
- [65]Medical records effectively record that the plaintiff advised on 31 October 2006, when he was about 22½ years of age, that he was then in the habit of drinking all day Saturday and all day Sunday and occasionally Thursdays and Fridays, that he had episodes of amnesia for up to the whole weekend and that he had been binge drinking for the past three years.
- [66]In 2007 he enrolled in a one year bricklaying course which he completed. He did some work for bricklayer friends. Most of his friends were tradesmen. His medical records show that on 8 November 2007 he reported that he was still binge drinking at weekends but that he had cut down his intake. I accept that his drinking habits showed some improvement in 2007.
- [67]In 2008 he enrolled at another college to do another year long course in construction. He was doing work at a call centre at weekends and some weekday evenings. He was contracted to do 20 hours work per week but sometimes exceeded this with weekend work. He did occasional work on building sites for friends. In February 2008 aged almost 23, he was faced with travelling time to the new college of about an hour. He believed he was increasing his knowledge sufficiently without attending college but instead by learning on work sites. He was doing infrequent casual work for a friend as a labourer who sometimes also laid brick. He dropped out of this college course in February 2008. He regarded this as the labouring stage of becoming a bricklayer.
- [68]He gave evidence that he stopped the weekend drinking binges and was working two part time jobs and attending college. If it was so that he stopped the weekend drinking binges, it must have been after November 2007. In 2008 he worked up to 30 hours per week and focussed on saving for his trip to Australia. I accept that in 2008 he was drinking less as he worked and saved for his October departure to Australia. His earnings show a modest increase in the six months prior to his departure, from a modest earnings base.
- [69]The plaintiff’s income tax history in the United Kingdom for the tax year 2006-07 shows that he earned £9,361 and incurred £692 income tax. In the 2007-08 tax year he earned £9,709 and paid £718 income tax. In the 2008-09 tax year he earned £5,419 and paid £379 income tax. The tax year in the UK, which applies to income tax and other personal taxes, runs from 6 April in one year to 5 April the next.
- [70]He arrived in Australia in October 2008 about 23 years and six months old with a twelve month working visitor’s visa, landing in Adelaide. His father, mother and two of his brothers lived in Adelaide then and at trial. The brothers living there are plasterers. He had some money saved. He did a couple of weeks of labouring work for bricklayers in Adelaide. After holidaying with one brother on the Gold Coast, he obtained a sales job there before going back to Adelaide. He came back to Brisbane in the beginning of 2009 and did some sales work at the Gold Coast selling Foxtel packages. He came to Brisbane in about March or April 2009. He worked from 4 to 24 May for Event Construction Specialists, setting up marquees and stalls for the Gold Coast Boat Show. Then he went to Toowoomba to do the same type of work setting up for the Ag Fest in May. At the time of the accident he was intending to go to Townsville four days later on 13 June to do similar set up work in preparation for the V8 Supercars event. He gave evidence that the Townsville work was guaranteed. I accept that as evidence only that he had been told by the employer that he would be given that work. I find that he probably would have gone to Townsville and done about three weeks set up work. He tentatively hoped to find other work to follow the Townsville job for a further three months. If a young overseas traveller in the plaintiff’s situation worked for three months in a regional or rural area, or in farming, the traveller could obtain an extra 12 months extension on a working holiday visa. The plans were tentative because of a flight booking.
- [71]He had a flight booked back to England for 20 July 2009. The flight allowed a stopover in Thailand. He did not have enough money to use the stopover for a holiday in Thailand. He would have preferred to holiday in Thailand whenever he returned to England. He would have preferred to earn enough to fund that holiday and wanted to explore any realistic work option to do that. His experience was that either by working several nights as a kitchen hand or by labouring or sales work, he could earn $150.00 to $200.00 per week. He could earn $700.00 per week with Event Construction Specialists. The Townsville work would thus have been relatively well paid for three weeks.
- [72]He also was attracted to the idea of finding sufficient work after the Townsville job for the balance of the 3 months remaining of his visa entitlement so that he could qualify for a 12 months extension to his holiday visa. As a footloose backpacker with family in Australia, I accept that his hope on 9 June 2009 was to defer his flight booked for 20 July and to keep his options open.
- [73]Because of his injury he lost the chance to do work for Event Construction Specialists in Townsville and after the Townsville job, to do any other odd work he could find until his visa expired in October 2009.
- [74]The plaintiff was admitted to the Royal Brisbane and Women’s Hospital on 10 June 2009. A closed fracture at the mid-shaft of the right femur was fixed with an intramedullary rod and fixation screws. On route to hospital he was given pain killing drugs. He was hospitalised for two weeks. His hospitalisation was in Brisbane and in Adelaide. He had no complications following his surgery and no infection. The plaintiff left hospital on crutches after about two weeks. He had a course of physiotherapy and hydrotherapy following his discharge. Apart from the injury to his leg, the plaintiff sustained no other significant injuries. The plaintiff was seen as an outpatient at the Flinders Hospital in Adelaide. He was looked after in Adelaide by his mother. He returned to England in October 2009.
- [75]Mr Montgomery, orthopaedic surgeon, opined that the plaintiff’s level of impairment was less than 5%, that it was 2% to 3% and minimal. He regarded the impairment as likely to be due to irritation or dull ache but said that it would not stop any function. Those percentages relate to the whole person.
- [76]Mr Montgomery believed that the plaintiff had a pre-existing relevant condition which meant that he would suffer minor symptoms of osteoarthritis in the hip during his life. The fracture did not cause the osteoarthritic problem. When pressed in cross-examination, Mr Montgomery accepted the pre-existing degenerative change in the hip was probably affected by the injury and opined that the injury might accelerate symptoms by a year. The plaintiff had a very good outcome from his surgery. A person of his age with a broken femur is ordinarily expected to make a full recovery. The metal work was in an excellent position and the fracture has united solidly. Mr Montgomery opined that physiotherapy would be of no benefit after six months although some exercises in the gymnasium to strengthen the leg would have been beneficial. I accept his opinions.
- [77]Mr Montgomery considered that the plaintiff could have returned to sedentary employment three months after the accident and to any kind of employment six months after the accident. It was his opinion that the plaintiff should be able to lead a completely normal life and that the sequelae were likely to consist of twinges from time to time and some difficulties with sleeping on his right side.
- [78]The plaintiff expressed a different opinion about the consequences of his fracture. He said that bricklaying work is too physical for him. I do not accept his evidence about that. I accept his evidence: that he tried to do bricklayer’s labourer’s work for a friend on two days but he was slow, that did not continue with that job, that he has difficulties with moving, bending, twisting and turning, that he worries that bricklaying activities could irritate his injury, that there is some heavy lifting involved in bricklaying work, that he worries about dislodging the pins or needing another operation, that a bricklayer would be required to climb up ladders and to carry buckets of mortar or bricks, that he was not confident that his leg could do these things, that another task for a bricklayer or a bricklayer’s assistant is to shovel cement out of a mixer and into a trough, that this involves twisting sideways, that he felt a twinge at the site of the screws when he did this in April 2010, that a bricklayer or the bricklayer’s labourer is required to lift bags of cement up to 23kgs in weight and can be required to carry them up steps or ladders, that in northern England there is often ice on the ground on building sites in winter, that sites can be wet and slippery and that he was not confident that he was suited to pursue the trade of a bricklayer. Notwithstanding those things, I accept the opinion of Mr Montgomery that the plaintiff is and after six months was physically capable of bricklaying. The plaintiff’s concerns do not reflect the reality that his leg would have supported him in bricklaying.
- [79]At the time of trial the plaintiff was unemployed and in receipt of social security payments when in England.
- [80]I accept Mr Montgomery’s evidence that the plaintiff should have been able to obtain sedentary employment three months after the injury and that he was physically able to perform any work for which he was suited by January 2010.
- [81]From October 2009 to January 2010 the plaintiff worked in tele-sales for a call centre in England. From January 2010 until March or April 2010 he was unemployed. In March or April 2010 he did two days work for a friend who was a bricklaying contractor. The plaintiff was required to place pieces of broken concrete in a wheelbarrow and walk them to an industrial bin. He was required to transfer the concrete piece by piece from the wheelbarrow to the bin. He believed that he was better able to do such work before he was injured. He was also required to shovel cement and sand into a mixer to keep several bricklayers busy. He was not fast enough to keep up the supply. I infer that he was not offered more time on that job than the two days and that the plaintiff attributes that to his speed. The lack of evidence from his employer means that it is difficult for the plaintiff to prove that he suffered loss at that job and what amount of loss he suffered. The plaintiff’s lack of confidence, especially on the first two days of work done for his bricklayer friend was understandable.
- [82]The work was to build a garden wall at a domestic residence. There is no evidence as to the period during which the plaintiff would have been able to retain work at that site beyond two days. The domestic nature of the job suggests that it would have been brief. There was no evidence as to how much work, if any, might have followed if he had performed that job more quickly. There was no satisfactory evidence to suggest that employment conditions in England in 2010 and since have been such that the plaintiff could have obtained employment in construction related activities if he had sought it.
- [83]The plaintiff’s pre accident work history evidenced: a poor work ethic, only part time employment and predominantly call centre work. I am not persuaded that the plaintiff’s failure to obtain bricklayer’s labouring employment or bricklaying work after May 2010 was as a result of his fracture or a false belief that he was incapable of performing it. His lack of confidence would reasonably have inhibited him on his first job in April 2010 and reasonably inhibited him from applying for such work for a short time thereafter. I am not persuaded that a fear of injuring his femur or a fear of injuring himself due to some weakness in the femur has caused the plaintiff more than the loss of a month’s income in the UK.
- [84]Past economic loss is claimed on two bases by the plaintiff. It is submitted that in Australia he would have earned for three weeks $2,100 from Event Construction Specialists and then for a further 14 weeks at $300 per week. It was submitted that upon his return to the United Kingdom in October he could have worked as a bricklayer until the present at about $500 per week. The evidence of his earnings history in Australia was more modest.
- [85]In assessing past economic loss it is probable that the plaintiff would have earned $2,100 in Townsville and another $150 per week for twelve weeks while in Australia before departing for Thailand. He would have had a vacation there. From October 2009 to January 2010 when the plaintiff was actually working in tele-sales in England he was performing the kind of work which he mostly performed before his trip to Australia. I am not satisfied that, but for the injury, he would have returned to work only as a bricklayer’s labourer. I bear in mind that prior to his departure to Australia, the plaintiff, when trying to save for his trip, was not able to obtain fulltime work and was mostly working in the call centre.
- [86]The plaintiff’s counsel submitted that it would be reasonable to allow for about three months inability to perform labouring or bricklaying work at $500 per week in the United Kingdom. I reject that as an appropriate basis. The loss of about one month’s work in the UK is reasonable. I assess past economic loss at $6,000. Interest for two years on the whole of that sum is appropriate as the losses were mostly incurred by 18 May 2010.
- [87]Interest on past economic loss is assessed at $1,200.00.
- [88]Future economic loss is claimed on the basis that there should be a global allowance for the plaintiff’s lost opportunity on the open labour market. It is submitted that he has lost the opportunity to pursue bricklaying work for which he was suited. I reject the submission that he has lost that opportunity. It was submitted for the plaintiff that a proper award would be made on a global basis in the sum of $60,000. Accepting the evidence of Mr Montgomery, as I do, I am not satisfied that the plaintiff’s earning capacity is impaired. I assess that no damages are appropriate under this heading.
- [89]Loss of future superannuation benefits is claimed by the plaintiff. It is submitted for the plaintiff that he is entitled to an award at 9% of the assessment for future economic loss. The defendant submits that there is no evidence to suggest that there is a compulsory superannuation scheme in the United Kingdom. The defendant’s counsel submits that this is one reason for refusing to assess damages under this heading. He submits that the other reason is that there was no basis for an award of future economic loss. I accept that latter submission. There is no need for me to rule on the former.
- [90]Special damages of $28,460.59 are claimed. They are not disputed by the defendant. I assess special damages as claimed. A claim for interest of $57.95 was made. The basis was not explained. The defendant did not make a submission. I infer that it is not in issue.
- [91]General damages are submitted by both counsel to require assessment per Item 136 of Schedule 4 of the Civil Liability Regulation. That item provides for an ISV of between 0 and 10. It is submitted for the plaintiff that having regard to the gross nature of the injury, the insertion of a pin with a possible later removal of the screws and the contribution towards osteoarthritis and other symptomatology, there should be an ISV of 10. I find the appropriate ISV to be 8. I am impressed by the excellent result but concerned by the very minor acceleration of the congenital osteoarthritis. On that basis and applying Schedule 6A, s 1(b) of the Civil Liability Regulation 2003, I calculate general damages at $8,600.
- [92]A summary of damages assessed is:
General damages$ 8,600.00
Past economic loss$ 6,000.00
Interest on past economic loss$ 1,200.00
Special damages$ 28,460.59
Interest on special damages$ 57.95
TOTAL$ 44,318.54
- [93]I will hear the parties as to costs.
Footnotes
[1] Australian Tourism and Leisure Corporation Pty Ltd
[2] TLA [33.8.360]
[3] Filed by leave on 7 December 2011
[4]Criminal Code 1899 s 340(b)
[5] T1-25 l50
[6] Corliss at [35]
[7] Corliss at [36] to [40]
[8] FAD par 2
[9] (2003) 195 ALR 412 at [239]
[10] See Ferguson v Calnan [2002] QSC 342 [13] per Helman J referring to Daniels v Whetstone Entertainments Ltd [1962] 1 Lloyd’s Rep 1 at p5