Supreme Court New South Wales Medium Neutral Citation: Chadwick v Bondi Beach Food Pty Ltd; Bondi Beach Food Pty Ltd v Crossguard Group Pty Ltd [2023] NSWSC 197 Hearing dates: 13 February 2023 to 1 March 2023 Date of orders: 9 March 2023 Decision date: 09 March 2023 Jurisdiction: Common Law Before: Elkaim AJ Decision: (1) Verdict for the plaintiff against the first and second defendants for $200,706.40. (2) The defendants are to pay the plaintiff's costs of the proceedings. (3) On the cross-claims, verdict for each cross claimant for contribution or indemnity to the extent of 50% of the damages and costs payable to the plaintiff. (4) Each of the defendants is to pay its own costs of their respective cross-claim. (5) The parties have leave to make further submissions in relation to alternate costs orders. Catchwords: NEGLIGENCE – duty of care – duty of licensee and security guards of licensed premises to patrons of licensed premises NEGLIGENCE – breach – whether defendants had knowledge of aggressive character of plaintiffs – whether failure to evict plaintiff caused harm NEGLIGENCE – contributory negligence – whether plaintiff's actions contributed to harm suffered DAMAGES – viability of business – valuation of economic prospects of an influencer – estimate of medical expenses Legislation Cited: Civil Liability Act 2002 (NSW) s 5A Cases Cited: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 Collingwood Hotel Pty Ltd v O'Reilly [2007] NSWCA 155 Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 QBE v Orcher [2013] NSWCA 478 Quintano v BW Rose Pty Ltd [2009] NSWSC 446 Wagstaff v Haslam [2007] NSWCA 28 Category: Principal judgment Parties: Clinton Chadwick (Plaintiff) Bondi Beach Food Pty Ltd (First Defendant) Crossguard Group Pty Ltd (Second Defendant) Representation: Counsel: Mr D Lloyd SC (Plaintiff) Mr M Kalyk (Plaintiff) Mr P M Morris SC (First Defendant) Mr N Polin SC (Second Defendant) Solicitors: Salerno Law (Plaintiff) McCabe Curwood (First Defendant) Hall & Wilcox (Second Defendant) File Number(s): 2019/00307732 JUDGMENT Introduction 1. On 22 December 2017, the plaintiff, Clinton Chadwick visited an establishment owned and operated by the first defendant, Bondi Beach Food Pty Ltd. The name of the establishment was The Bucket List Bondi. It no longer exists. I will generally refer to it as "the premises", or the "venue". 2. The second defendant, Crossguard Group Pty Ltd, is a company that provides security services. It was contracted by the first defendant to provide these services at the premises. 3. According to the plaintiff, an argument occurred between the plaintiff and another patron, while he was at the premises with two friends. This patron, Stephen Martin, assaulted the plaintiff so viciously that he became unconscious. Notwithstanding the plaintiff's state, lying on the ground, the assault upon him continued. 4. Although his injuries were initially fairly widespread, the plaintiff is now mostly troubled by psychiatric and psychological impairments. He also has stiffness in his neck from time to time and remains with some scarring. 5. The plaintiff says his injuries were caused by the breach of the duty owed to him by the two defendants. He claims that had they not been negligent, the attack would not have occurred. 6. The defendants' breach of duty is said to have arisen in the following ways: 1. The defendants should have taken precautions to ensure that Mr Martin and his friends (the Martin group) were controlled or evicted from the premises before the assault took place. 2. The defendants should have intervened in the altercation between the plaintiff and Mr Martin to prevent the violence. 1. Mr Martin pleaded guilty to the assault and so whilst Mr Martin is not a defendant, liability against him would have been easily established. 2. The plaintiff claims damages under the following heads: non-economic loss, past and future economic loss and past and future medical expenses. A pleaded claim for domestic assistance was not pressed. 3. The two defendants have denied liability and have filed cross claims against each other. They rely on various sections of the Civil Liability Act 2002 (NSW), which governs the proceedings. They both allege contributory negligence on the part of the plaintiff. 4. In relation to damages, the defendants made a concerted attack on the plaintiff's claim, primarily by attacking his credit and the viability of the business he was operating when he was injured. In addition, the defendants challenge the claims of psychiatric and psychological impairments, asserting that the plaintiff quickly returned to full economic capacity. 5. As a general introductory statement, the common law duty of care owed to a patron in a public bar is the same as that of an occupier to a lawful entrant. However, there is an added element arising from the sale of alcohol on the premises. 6. This element was described by the High Court in Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, at [20]: "it is next important to recognise that the particular provisions made in the Liquor Act for controlling violent, quarrelsome or disorderly conduct on licensed premises take their place in a context set by two considerations. First, sale of liquor is controlled because it is well recognised that misuse and abuse of liquor causes harm, including what the Liquor Act refers to as "violent, quarrelsome or disorderly" conduct. Section 2A of the Liquor Act provided: Liquor harm minimisation is a primary object of this Act A primary object of this Act is liquor harm minimisation, that is, the minimisation of harm associated with misuse and abuse of liquor (such as harm arising from violence and other anti-social behaviour). The court, the Board, the Director, the Commissioner of Police and all other persons having functions under this Act are required to have due regard to the need for liquor harm minimisation when exercising functions under this Act. In particular, due regard is to be had to the need for liquor harm minimisation when considering for the purposes of this Act what is or is not in the public interest. The second and related point to make is that the duties cast upon those responsible for the service of liquor on licensed premises can be understood as a part of the price that is exacted for the statutory permission granted under the Liquor Act. The permission granted is to do what otherwise the Act forbids - sell liquor - and to do that on premises to which members of the public may resort only in accordance with the conditions on which the licence is granted." 1. The plaintiff was born in 1989. The plaintiff's evidence in chief was mostly constituted by two evidentiary statements tendered on his behalf. Without repeating the contents of the statements, they endeavoured to paint a picture to the following effect: 1. He had a largely supportive upbringing although he did witness "some physical violence between my stepfather and my mother…". 2. He left school after Year 10, in 2004. After leaving school he was in juvenile detention for about 15 months. This was because he had been using and supplying illicit drugs, in particular 'ecstasy'. He says he learned from this experience and resolved to live a law-abiding life. He enrolled in, and completed, a Certificate III in mechanical engineering and worked as a fitter and turner. 3. In 2014, the plaintiff started a business called Rig Fit Activewear Pty Ltd (Rig Fit). This enterprise was a purveyor of activewear. 4. Initially the plaintiff ran the business on a part-time basis. The business used influencers to market its products. The plaintiff was the primary influencer. To facilitate the use of influencers the plaintiff began another company, Indigital Media Group. 5. By 22 December 2017, Rig Fit was doing well and was on its way to becoming a highly successful enterprise. At this time, the plaintiff had 426,000 followers on Instagram. 6. Before the assault the plaintiff was fit, happy and had a bright future. Using his words, he was: "in the prime of my life, physically and mentally. I had the energy of an Energizer Bunny and worked long hours each week to build up my business, attended the gym, and had many friends that I socialised with when I had time to do so." 1. As already noted, the defendants mounted a strident attack on the plaintiff's credit, highlighting the following: 1. The plaintiff's upbringing was not as uneventful as he suggested. His father left the home when the plaintiff was two years old leading to "separation anxiety". 2. The plaintiff had been "subjected to a great deal of domestic violence perpetrated by his two stepfathers throughout his childhood. This included violence directed towards him and witnessing violence towards his mother." 3. The plaintiff was often suspended from primary school. 4. The plaintiff's involvement with drugs as a young man included a very significant use of MDMA, amphetamines and cocaine. Specifically, leading up to the assault he was consuming up to 20 'lines' of cocaine a week. The plaintiff also used anabolic steroids and testosterone replacement therapy to enhance his appearance. 5. He became a supplier of drugs and frequently gambled. 6. Similarly, the plaintiff's dealings with the criminal justice system after the assault were significantly more complex than the impression given from the evidentiary statements. The incident on 23 September 2020, when he was arrested and then scheduled for mental health problems, was preceded by other significant contact with the police. 7. The plaintiff's suggestion that his business collapsed as a result of the assault, while perhaps having a degree of connection, may also have been subject to other factors. In any event, the business itself was probably not viable, although there may have been some value in its brand and intellectual property. 8. The plaintiff's asserted incapacity to work, and to earn an income, was contradicted by his continuing business interests. For example, he was able to earn in the order of USD $70,000 over an almost two-year period by posting images of himself on a site called 'OnlyFans'. While he said that 75% of the images had been taken before the assault, he was nevertheless able to arrange the posting of the images and derive a financial benefit. 9. The plaintiff's assertion that his income from OnlyFans had been declared is not evident from his tax returns. 10. Perhaps most importantly, the overall impression given by the plaintiff of becoming a recluse following the assault was contradicted by his continued involvement in social media, his self-promotion and his activities, for example, participating in a bodybuilding contest and making plans to visit Mykonos in the near future. 11. The plaintiff's description of himself as being at his peak fitness before the assault and then declining was inconsistent with the images posted after the assault. 1. Notwithstanding the just made observations, I did not consider the plaintiff to be an overtly dishonest witness. Rather, I thought him to be a man somewhat deluded by his own image, his capacity to be a successful businessman and his perception of what his future might have been but for the injury. 2. The plaintiff is certainly a very competent influencer. This extended to not only influencing the sale of his activewear products, but also to influencing various persons to invest in his businesses or proposed businesses. Unfortunately, his capacity to attract funds was not matched by a capacity to astutely use those funds. 3. Overall, the cross-examination of the plaintiff revealed a lack of reliability, to the extent that a good deal of caution was needed before the plaintiff's evidence was accepted. 4. The plaintiff's mother, Ms Gail Chadwick, gave 'before and after' evidence which, to some extent understandably, minimised the plaintiff's problems during his youth and maximised his difficulties since the assault. 5. Ms Chadwick still supports the plaintiff. She says that she works two jobs, over seven days a week, to help him. She contributes to his rent and over the years has provided him with substantial funds. 6. Her cross-examination, like that of the plaintiff, was rigorous and designed to show that she was not giving truthful evidence. Rather, the effect of her evidence was that she genuinely believed that her son was disabled as a result of the assault and that he deserved her support, financial and otherwise. However, there were several matters of which she was unaware, for example, the forthcoming trip to Mykonos, which led me to believe that the plaintiff had not been entirely frank with her. 7. Ms Chadwick's belief in her son was highlighted by her description of him: "He's attractive. He's beautiful. He's good to look at, in my opinion" (Tcpt 20 February 2023, p 440 (1)). Liability for the assault on the plaintiff 1. There is little doubt that the plaintiff was assaulted by Mr Martin. Given that Mr Martin is not a defendant, the question arises as to the liability of the defendants for the assault. 2. Starting with the Civil Liability Act provisions, and in particular s 5B, it is uncontroversial that intoxicated persons can be dangerous and can cause harm. The harm, as in this case, is injury to another person. It is foreseeable that a person who becomes intoxicated may attack another person. When one person does attack another person, whether with fists or some implement, the risk of harm is not insignificant. 3. A licensee at a venue dispensing alcohol, and security guards employed to monitor the sale of alcohol and maintain the peacefulness of the premises, would, acting reasonably, take precautions to prevent harm. 4. As far as the first defendant is concerned, the mere engagement of the second defendant, is an acknowledgement of the risk and the need to take precautions, as the second defendant was specifically engaged to give effect to the precautions. 5. The plaintiff's case against the second defendant included the allegation that the first defendant's obligation to patrons had been delegated to the second defendant. As Brereton J said in Quintano v BW Rose Pty Ltd [2009] NSWSC 446 (Quintano) at [9]: "This duty is a delegable one, in that a licensee/operator who engages a competent security firm to undertake the provision of security will be a sufficient discharge of the duty [see Perkins v Redmond Co Pty Ltd (2007) 5 DCLR(NSW) 21; [2007] NSWDC 147, [141] (Rein DCJ, as his Honour then was); and the cases there cited]. However, the extent to which delegation will discharge the licensee/operator depends on the extent of the delegation, and if it is the licensee/operator who determines the number of security staff and level of security to be provided, there is no delegation of the responsibility to ensure an adequate level of security, and no discharge from that duty [cf Perkins v Redmond, [144]]. 10 A security firm contracted to provide security services to give effect to the licensee's obligation owes a duty of care to patrons, not to ensure their safety, but to take reasonable measures to protect them from foreseeable harm, including but not limited to taking steps to turn out patrons from whom violent conduct ought reasonably have been anticipated [Collingwood v O'Reilly, [23]]. If a guard employed by such a firm neglects his duties, that is generally the responsibility of the security firm that employs the guard, not of the licensee/operator [Perkins v Redmond, [143]]. However, the duty of a security firm retained by the licensee/operator is influenced by the contract: if there is a complete delegation, then the security firm's duty will be similar to that of the proprietor; but if the firm is retained only to provide specific services, its duty is not enlarged beyond the prudent performance of those services." 1. There is nothing in s 5B that prevents a finding of negligence against either defendant. 2. The defendants put it to the plaintiff that the fight with Mr Martin was his fault; that he had been the aggressor and Mr Martin was effectively passive until attacked. 3. Viewing the CCTV gives some credence to the defendants' approach, but only if the viewing is restricted to the actual assault and the moments before it. The first physical contact with Mr Martin is a push by the plaintiff. A little later it is the plaintiff who attempts to punch Mr Martin, generating a response in which Mr Martin strikes the plaintiff with a stool. As will be seen below there is nevertheless good reason to treat the CCTV footage with caution. It does not permit an assessment of various angles of sight and has no sound. Consequently, a conclusion that the plaintiff initiated the physical contact with Mr Martin must be seen in the context of any verbal altercation that had preceded that contact. 4. In addition, liability does not depend only on what happened in the fight, but also on what happened before the fight. This extends both to the actions of Mr Martin and of his group. There were a number of persons in the group and if they had individually or collectively behaved inappropriately, at least to a degree that suggested a possible resort to violence, then the failure of the defendants to remove the group could give rise to liability on their part. The plaintiff's pleadings encompass the removal of patrons generally, not just Mr Martin. 5. The defendants made almost no concessions in relation to liability. Ultimately however, the main thrust of their submissions was that no matter how intoxicated Mr Martin and his group might have been, they were never on notice that Mr Martin displayed any propensity towards violence. This approach was derived from a number of authorities, but summarised Brereton J at [8] in Quintano: "The relevant duty to exercise reasonable care for the safety of patrons depends upon proof that the manager or licensee knew or ought to have known facts requiring intervention to protect patrons and in those circumstances failed to take reasonable steps to safeguard the plaintiff from a foreseeable risk of harm. A duty to take immediate steps to remove an affected person in order to protect others is not triggered by the mere fact of a degree of intoxication, but requires an additional element – either actual or constructive knowledge of the aggressive character of the person while intoxicated, based on known characteristics, or conduct on the occasion in question [Chordas v Bryant (Wellington) Pty Ltd; TAB Limited v Atlis; Wagstaff v Haslam, [28]-[37]; Collingwood Hotel Pty Ltd v O'Reilly; Rooty Hill RSL Club Ltd v Karimi [2009] NSWCA 2, [34]". 1. I think there was ample warning based on "conduct on the occasion in question" to raise "actual or constructive knowledge of the aggressive character of the person while intoxicated". This conclusion is derived primarily from the evidence of Mr Garrow (including the admissions made to him by the first defendant's owner) and, to a lesser extent, from the evidence of Mr Kovacevic. I will return to the evidence of these two persons below. 2. One of the cases referred to by Brereton J in Quintano was Wagstaff v Haslam [2007] NSWCA 28. In Wagstaff, Basten JA at [50] stated: "On the reasoning of the Full Court of the Federal Court in Chordas and of this Court in TAB Limited v Atlis, the mere fact of a degree of intoxication will not give rise to a duty to take immediate steps to remove the affected person, in order to protect other patrons. An additional element is required. That element is knowledge, either actual or constructive, of the aggressive character of the person, when intoxicated, based either on known characteristics or conduct on the occasion in question. There being no prior knowledge of the men, or their characters, and there being no evidence of disruptive or aggressive conduct on an earlier occasion on the night in question, the conduct of the bar manager, prior to the commencement of the altercation, did not constitute a breach of duty to Mrs Wagstaff." 1. The critical duty was again emphasised by Basten JA in Collingwood Hotel Pty Ltd v O'Reilly [2007] NSWCA 155 at [21]: "Rather, the relevant duty to exercise reasonable care for the safety of patrons, depends upon proof that the hotel manager or licensee knew or ought to have known facts requiring intervention to protect patrons and, in those circumstances, failed to take reasonable steps to safeguard the plaintiff from a foreseeable risk of harm: see, generally, Wagstaff [2007] NSWCA 28 at [28]-[37]." 1. In the present matter there was evidence of "disruptive or aggressive conduct on an earlier occasion on the night (or evening here) in question" and of "known facts requiring intervention to protect patrons". 2. The defendants said the plaintiff had ample opportunity to simply walk away from the confrontation. This is what his friend Mr Brewster did and there was no reason why the plaintiff could not have done the same. His answer was that it would have been dangerous to turn his back upon Mr Martin. 3. If liability was established through Mr Martin and his colleagues not having been asked to leave or evicted, then the plaintiff's actions, in initiating physical contact with Mr Martin and not walking away, might give rise to contributory negligence. However, such a finding would not affect primary liability in this case. 4. When questioned about the CCTV footage, the plaintiff added some detail which is not present in his evidentiary statement. In his statement the only recollection he has of a conversation with Mr Martin is of an invitation from Mr Martin to "go outside and fight", to which he responded "[w]hat?" 5. The plaintiff, in his oral evidence, said there had also been the following conversation: "Martin: Oh, you think you look good, do you? Plaintiff: Pull your head in. There's families around." 1. It was suggested to the plaintiff that the above conversation was a product of recent invention because it was not included in any of his evidentiary statements. I had the impression that the suggestion was correct and was probably the plaintiff's reaction to being taken through the CCTV when it showed him as the possible aggressor. 2. This is a convenient point to record my opinion about the nature of the venue. The premises had a restaurant licence. Relevantly, this meant that patrons could not consume alcohol other than while seated. The plaintiff's reference to "families" is not supported by the CCTV footage. The first defendant submitted that the premises were more in the nature of a restaurant than a bar. There was evidence of one child being present. As will be seen below, the presentation of the venue as a restaurant was persistently advocated by David Champ, the licensee. 3. The CCTV footage, although depicting only a part of the premises, paints a different picture. The venue may well have presented as a restaurant at various times, for example at around lunchtime compared to the evening. However, at the time of the current events, the venue presents as a public bar. Food is occasionally being served, but the scene is dominated by young adults drinking alcohol. 4. While I accept that the plaintiff did perform the first physical act of aggression (shoving Mr Martin) I do not think this necessarily places him as the instigator of the incident. Clearly Mr Martin had initially verbally antagonised the plaintiff and his colleagues. 5. Repeating what I have concluded above, I think the real question in this case is whether the defendants were on notice that Mr Martin was a danger to other patrons. Was he a person who should have either been controlled or evicted or had he given no reason to suspect he might become violent (as required by the test in Quintano) prior to the assault? There is a good deal of evidence about the security plans and operational procedures of the premises, which were designed to identify and manage (including evict) intoxicated persons. If the defendants failed to identify such persons in the first place, then plans, no matter how well-crafted and documented, are of little relevance. 6. In my view the answer is that Mr Martin and his group should have come to the attention of the defendants who should have acted to control, restrain or evict the group, including Mr Martin. There is no doubt that they were noticed by the defendants, certainly Mr Ruwald and Mr Izmiritlian. The latter, on his own admission, simply failed to deal with them appropriately. 7. Mr Martin gave evidence for the plaintiff. His statement in Exhibit B is unsigned. At the commencement of his evidence, he was asked whether the statement was correct. He made some amendments, for example to paragraph 11, saying that he was a more regular heavy drinker than depicted by the paragraph. One paragraph he did not wish to change was paragraph 10: "On a scale of one to ten with one being sober and ten being as drunk as I ever have been in my life, at the time of the incident I was very drunk, maybe an eight or nine, too drunk to be there really." 1. The last words of the above quote (too drunk to be there really) were not the subject of any cross-examination. The defendants made the bold submission that there was no need to cross-examine Mr Martin because his evidence was obviously unreliable. The submission seems to have been derived from the evidence of the pharmacology experts, that an intoxicated person cannot reliably estimate their consumption. 2. However, Mr Martin was clearly a regular drinker and as such he may well have had an increased capacity to estimate his personal consumption. Further, he was part of a group and may have gained some information from his colleagues after the event. Clearly, if the extent of his consumption was to be challenged, then he should have been asked questions about it. 3. I do however accept that Mr Martin's memory is probably clouded by the alcohol he drank on the day and perhaps by his continuing use of alcohol and, maybe, other substances. 4. Mr Martin clearly had little detailed memory of the incident. He agreed with suggestions put to him under cross-examination as he was taken through the CCTV footage, but this agreement was little more than an acknowledgement of what was evident on the footage. 5. He did however give three important pieces of evidence: 1. He regularly consumed large amounts of alcohol. 2. More importantly, when he and his friends were at the German pub opposite the premises, before coming to the premises, they had been evicted. 3. He had a clear recollection of the conversation that had taken place between him and the plaintiff. 1. The importance of the second piece of evidence, upon which there was absolutely no cross-examination, is that it raises a suggestion of misconduct on the part of the group, even before they had arrived at the premises. Mr Martin's evidence about the German pub was this: Q. Do you remember roughly how long you were there, or is it‑‑ A. Yeah, I can remember we were there ‑ we were only there for a couple of hours, I think, because I think we got kicked out of there, or, you know, someone was playing up or something. We were asked to leave maybe. (T 478.36) 1. Although there is a degree of uncertainty (derived from "I think") in Mr Martin's answer, there is enough to require some challenge by the defendants to avoid an inference of misbehaviour at the German pub. 2. There was also no cross-examination about the third piece of evidence. I accept that there may have been issues as to its reliability, however, I would still have expected some exploration as to his memory. The result is that credence is given to the evidence of Mr Garrow, who, as will be seen below, said that provocative comments emanated from Mr Martin's group as soon as he (Mr Garrow) and the plaintiff arrived. Thus, although the plaintiff did perform the first physical act of aggression, I do not think this places him as the instigator of the incident. 3. I thought Mr Garrow was a very good witness. He freely admitted what he did not see and he expressed surprise at activities undertaken by the plaintiff which he had thought were beyond the capacity of the plaintiff. 4. Mr Garrow was set in his memory that Mr Martin had been causing trouble from the moment he and his colleagues entered the premises. CCTV footage was said to not allow for a line of sight from him to Mr Martin. This is a classic example of the care that needs to be taken with CCTV. As stated by Tobias AJA in QBE v Orcher [2013] NSWCA 478 at [23]: "The problem of a judge "construing" photographs has been the subject of comment in this Court: Blacktown City Council v Hocking [2008] NSWCA 144 at [7] - [13] per Spigelman CJ and at [167] - [171] per Tobias JA; Angel v Hawkesbury City Council [2008] NSWCA 130 at [71] - [72] per Beazley and Tobias JJA. Of course photographs, if otherwise relevant, are admissible but the weight to be attached to them and, in my view, the CCTV footage, is very much dependant on the quality and clarity of the images they depict as well as the context in which they are taken. In my view they can be quite misleading particularly as in the present case where the situation the subject of the footage was very dynamic." 1. The CCTV footage in this matter does not, in my view, permit a reliable assessment of whether or not there was a line of sight from Mr Garrow to Mr Martin when Mr Garrow entered the premises. Consistent with my opinion of Mr Garrow's evidence I accept that he was able to see Mr Martin at an early stage. 2. Mr Garrow remembered Mr Martin's leg shaking and he remembered him slurring his words. At a later stage, after the assault, he distinctly remembered the state of Mr Martin's teeth and his imperfect hygiene. 3. I also accept Mr Garrow in his description of the "elderly" male person who identified himself as the owner and expressed concerns about the failure to not deal with Mr Martin before the fight. Mr Garrow described this person as wearing a collared shirt, shorts and white shoes. Although he doesn't seem to have a collared shirt, the person identified as Mr Ruwald in the CCTV footage is wearing shorts and has white shoes. 4. In addition, Mr Garrow's evidence about what the owner said was consistent with my conclusions about the level of monitoring that was actually occurring at the venue. 5. I think it worth quoting part of the owner's conversation with Mr Garrow: "The owner said words to the effect of "yeah, it's no good. I did ask security to keep an eye on those guys as they had already said a few things to other people."" 1. Mr Garrow's evidence about the owner was only relied upon against the first defendant. I therefore do not take it into account against the second defendant. It is, however, consistent with my findings about the staff's state of knowledge, whether employed by the first or the second defendant, as to the behaviour of the Martin group. 2. Another witness who impressed me was Mr Kovacevic. He made a statement in December last year but also annexed a statement that he had made to the police five days after the event. 3. The cross-examination of Mr Kovacevic endeavoured to obtain his agreement that not much untoward had emanated from Mr Martin's group but rather that they were well behaved, even to the extent that Mr Martin politely sought permission to occupy, and later move from, a reserved table and that Mr Kovacevic happily took photographs of the group at its request. 4. The impression that I had from Mr Kovacevic was that, perhaps due to some sensitivity to dangerous situations, he was at pains to stay on good terms with the rowdy group sitting alongside his birthday party guests, one of whom was a child. This is confirmed by his statement to the police where he said, at [10]: I was trying to be as simple as I could around this group as I knew they would be trouble. I felt uncomfortable, they were very intoxicated, some of them had bruised noses and strapped up hands. I just (sic) uneasy and like something was going to happen with this group as if they wanted to fight. 1. The difficulty with the cross-examination is that it did not impact upon, let alone challenge, the very strong opinions expressed by Mr Kovacevic in his statement. For example, at [6] of the 2022 statement he says: "At various stages….., I believed that the males at the table were "very intoxicated". I recall forming that belief because of the way they were speaking and acting, including being very loud, swearing and carrying on, chairs and buckets were falling over, and they were at times being rude and obnoxious to people around them." 1. The defendants made much of Mr Martin's dealings with Mr Kovacevic and the polite exchanges between them concerning the reserved tables. However, as Mr Martin emphasised in his oral evidence, politely dealing with other persons in order to utilise reserved tables was a well-practised strategy on his part. "Q. Do you recall, just in a general sense, that when you arrived, there was a table that you and your friends occupied? A. I'll put it plainly. The only reason why I recall that is because that is something that I often try my luck with. If the tables are all full, I just go, "Hey, can we sit here until your friends come?" But I don't remember it" (Tcpt 20 February 2023, p 481 (5)). 1. It was submitted in respect of Mr Kovacevic, and to some extent Mr Garrow, that the plaintiff could not draw inferences from their evidence in the absence of specific questions to them. The submission was derived from this passage in the judgment of Handley JA in Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418: "In my opinion the Court should not draw inferences favourable to the insured on these matters when no attempt was made to prove them by direct evidence and in particular when no relevant questions were asked of Mr Ferrarese. Rather it seems appropriate to apply the principles of Jones v Dunkel (1959) 101 CLR 298. There appears to be no Australian authority which extends the principles of Jones v Dunkel to a case where a party fails to ask questions of a witness in chief. However I can see no reason why those principles should not apply where a party by failing to examine a witness in chief on some topic, indicates "as the most natural inference that the party fears to do so". This fear is then "some evidence" that such examination in chief "would have exposed facts unfavourable to the party": see Jones v Dunkel (at 320-321) per Windeyer J. Moreover in Ex parte Harper; Re Rosenfield [1964-5] NSWR 58 at 62, Asprey J, citing Marks v Thompson 1 NYS 2d 215 (1937) at 218, held that inferences could not be drawn in favour of a party that called a witness who could have given direct evidence when that party refrained from asking the crucial questions." 1. It was primarily submitted that Mr Kovacevic and Mr Garrow did not specifically identify Mr Martin as the source of any disruption and that, based on Ferrcom, no inference could be drawn to this effect. 2. However, in his statement, at [14], Mr Garrow said: "I noticed that Martin was being very loud with all his mates, who were also being rowdy and yelling at other patrons. We could hear them yelling when we walked into premises, when we were inside, and from the top of the stairs." 1. Mr Kovacevic, in his statement to police, said at [7] and [8]: "This male was Caucasian, about 30 years old, about 180 cm tall, lean solid build, wearing a white baseball cap, blue track pants and a white t-shirt, he had tattoos on his neck region, he had only one arm completely tattooed including his hand. He was wearing a silver or gold chain around his neck. This male that I describe is the male that later use the barstool to assault another male. Over the following night I continued with my birthday and enjoying my guess. I took notice of the group seated next to me as they were quickly becoming heavily intoxicated. They had a constant flow of buckets of beers at their table. The other males that were with the mail with the white baseball cap, were very intoxicated." 1. The evidence of Mr Garrow and Mr Kovacevic about the conduct of the Martin group is the evidence that amounts to the "disruptive or aggressive conduct" referred to in Wagstaff. 2. Ms Ida Axelsson gave evidence for the first defendant. Ms Axelsson had been working for the first defendant for some years. She usually worked the shift ending at about 5pm. She gave the clear impression that this was because, as a female, she would have been less able to cope with behaviour that occurred later in the evenings. 3. Ms Axelsson ended her evidentiary statement by stating: "I had never witnessed any incident like this before at the premises. The venue operated principally as a restaurant and patrons were generally peaceful and compliant with directions." 1. By the end of her evidence the above picture of tranquillity had been somewhat tarnished. This is not to say that Ms Axelsson was a dishonest witness. To the contrary, she gave her evidence in a straightforward manner, accepting that behaviour at the premises was somewhat less peaceful than the quoted paragraph suggests. 2. Ms Axelsson was taken to various guidelines for assessing intoxicated patrons. Ms Axelsson accepted that had the behaviour of the Martin group, as seen in the CCTV footage, been made known to her she would have expected, at the very least, that security would have intervened, and evicted the group. 3. Ms Axelsson was able to identify herself at various parts of the CCTV footage. The intent seemed to be to show that she was out and about on the premises and from time to time walked past the Martin group without concern. My viewing of the footage shows Ms Axelsson moving directly about the premises, on one occasion delivering drinks, on another occasion heading for the entrance, but always seemingly intent on reaching a destination. There is no point at which Ms Axelsson seems to be monitoring any patron whom she walks past. 4. Ultimately, I think Ms Axelsson provided important evidence in favour of the plaintiff's case. Her evidence about other incidents and the basis upon which patrons would be spoken to, or evicted, suggested that the Martin group should have been asked to leave long before the incident. 5. It also seemed to me that any check on Mr Martin and his colleague when they re-entered the premises at 5:38pm was cursory at best, but probably non-existent. Ms Axelsson was concerned with bookings and the security guard does not seem to have engaged with Mr Martin. 6. Ms Axelsson conceeded that by October 2017 the premises were suffering a problem with alcohol-related violence. 7. In my view the evidence of Ms Axelsson gave significant weight to the proposition that the premises were operated to maximise the sale of alcohol regardless of the impact on security. 8. Another witness who gave weight to the plaintiff's case was Mr Champ, the licensee, even though he had left the premises before the incident. Mr Champ's obvious desire to avoid a perception that any violent conduct occurred at the premises was so patent as to render some of his evidence almost unbelievable. 9. Mr Champ insisted that the venue was more of a restaurant than a bar. This was highlighted when I asked him to identify in one of the still photographs (Ex 2D17), any person consuming food. He managed to pick out one table with food and perhaps some hot chips at one or two other tables. Clearly the establishment, at least when the relevant events took place, was far from operating as a restaurant. 10. Mr Champ suggested that almost no violence took place at the premises. He did this by trivialising many acts of violence and intoxication to which he was taken, referring to them as normal conduct in an establishment of this sort. He had no valid explanation for why some events were considered serious and others were not. He put forward as an explanation for his assessment of the general tranquillity of the restaurant, that events such as 'all-in brawls' were a common occurrence across Sydney. 11. At one stage Mr Champ said there was no dancefloor at the venue but had to retreat from this evidence when taken to an entry in the daily diary referring to an incident on the "dancefloor". 12. Mr Andrew Ruwald gave evidence from a hospital bed in Bali where he was suffering from hepatitis. He certainly seemed unwell but did his best to answer questions that were put to him. 13. Notwithstanding his efforts, he was not a convincing witness, probably because of a limited memory and perhaps because he was unwell. As already noted, I do not accept that he did not have a conversation with Mr Garrow. I also do not accept that he had not observed the Martin group or had any conversation about them prior to the incident. 14. Ms McKenzie Lewino was one of the second defendant's employees on duty during the evening. She pointed out a number of occasions where she walked past the Martin group but like Ms Axelsson she did not notice anything untoward about the group. She agreed that if the group had behaved in the manner suggested to her by the plaintiff, that would have called for action, in particular for the group to be evicted. 15. Mr Izmiritlian was the supervisor of the second defendant's employees on the evening. He has a good deal of experience in the security industry although, at the time was not a licensed security guard. He said that only a guard, or the manager of a premises, could physically intervene to placate antagonists or to escort intoxicated persons from a premises. 16. He identified himself approaching the group after being notified that something was amiss. He also identified the other employee, Ben, who he spoke to before the fight but had not met previously. It emerged that there were three Crossguard employees on duty at the time, all of them being RSA marshals. There were, therefore, no security guards available if needed. 17. Mr Izmiritlian agreed that a licensed guard or a manager could probably have successfully de-escalated the disagreement. He further agreed that if there was any suspicion of an impending fight a licensed security guard would investigate. 18. It was suggested that there was a fourth Crossguard employee, Mr Sean Broelman, present at some time in the hour before the assault. There is no evidence that he was a licensed guard, and he does not seem to have been present when the fight occurred. 19. Mr Izmiritlian said he remembered Mr Martin and another person leaving the venue and crossing the road to have a cigarette. He did not think it necessary to assess him when he returned. This was because he had not noticed anything untoward about him, nor was he on notice of any intoxication issues concerning Mr Martin. 20. On the facts, I prefer the evidence of Ms Axelsson that Mr Martin simply walked straight in without any notice being taken of him. 21. Mr Izmiritlian was pressed on whether the conduct displayed by one of the Martin group, dancing, should have engendered further enquiry, both in relation to this person and to Mr Martin, who was responding with his own short dance. Initially Mr Izmiritlian said the dancing was no more than an indication of high spirits. It did not rise to the level of even a suspicion of intoxication. However, as more of the CCTV footage was shown to him, he ultimately said "I see your point". 22. Mr Izmiritlian agreed that certain signs displayed by a person might be innocent, but nevertheless required monitoring and assessment. Such signs might include spilling a drink or bumping into an umbrella. 23. Mr Izmiritlian was shown excerpts on the CCTV footage in which Mr Ruwald appears. They contradict Mr Ruwald's evidence about his whereabouts and observations (or lack of observations) while he was on the premises. 24. I think that Mr Izmiritlian's evidence, like that of Ms Axelsson, was highly detrimental to the defendants' respective cases. As a result of their evidence, I am satisfied that: 1. The first defendant was content to allow the establishment to operate without licensed security guards on duty. 2. Properly staffed, there was a real possibility that the fight could have been avoided. Licensed security guards, even one of them, could have physically intervened to separate the combatants and lead, at least one of them, from the scene. 3. The second defendant, knowing the nature of the premises and knowing that it was a very busy period, supplied an inadequate contingent of security personnel, both as to numbers and as to their capacity. 4. Members of the Martin group variously behaved in a manner that ought to have generated an assessment of their intoxication levels. As already noted, the plaintiff's pleadings specifically attack the defendants' dealing with patrons, including, but not limited to Mr Martin. 5. There was a distinct inadequacy in the monitoring of persons entering the premises. 6. The manager of the premises, Mr Andrea Finchera, does not seem to have become involved in a manner in which he could have assumed the effective role of a licensed security guard. 7. The movements of Mr Ruwald give added credence to the evidence about him given by Mr Garrow. 1. I think this is an appropriate time to deal with the experts who provided reports on liability. The pharmacology experts gave concurrent evidence. The security experts did not give oral evidence. 2. The respective opinions of the pharmacology experts centred on the extent of Mr Martin's intoxication. Their opinions were dependent on a number of factors, almost all of them the subject of speculation. For example, how many drinks had Mr Martin actually consumed, over what period of time had it occurred and how reliable was Mr Martin's own opinion about his intoxication. 3. The experts calculated Mr Martin's possible blood-alcohol reading at the time of the incident. However, because of all the unknown factors, the assessments can only be described as a "best guess". 4. Dr Dauncey thought any assessment of Mr Martin's degree of intoxication, measured as a scientific calculation, was effectively impossible. 5. Dr Robinson thought that assumptions could be applied and a rough calculation made. Applying the amendments made to Mr Martin's statement, derived from his oral evidence, Dr Robinson assessed Mr Martin's blood alcohol content at either side of 0.2. He did, however, acknowledge that his calculations were based on the accuracy of the assumptions. 6. Both experts agreed that memory loss occurred, and was not regained, with the continuing consumption of alcohol. Thus, a person drinking alcohol may not have a reliable memory of what they had consumed. This lack of memory could result in either a minimisation or exaggeration of any estimate given by the person after the event. 7. Ultimately, I was not assisted by either expert. Firstly, while Mr Martin's personal assessment of his consumption is fraught with unreliability, there is no doubt that he drank a great deal. Secondly, his conduct before the fight as described by Mr Garrow in particular, suggests he was already intoxicated when the plaintiff first arrived at the premises. The other descriptions of the group's conduct confirm this impression. The blood-alcohol reading he may have registered is probably irrelevant. The important point is that he was intoxicated to an extent that his, and his group's behaviour, required intervention from the defendants. 8. Turning now to the security experts, the plaintiff relied on Mr Fullerton. He had seen the history of incidents at the premises that had occurred prior to 22 December 2017. These are contained in Exhibit D. They indicate that unruly conduct, often violence, were common occurrences at the venue. 9. Accordingly, stated Mr Fullerton, the level of security staffing at the venue was inadequate. This opinion was made even more relevant during the evidence of Mr Izmiritlian when it became apparent that, at the time of the incident, there was not even one licensed security guard in a position to intervene. As Mr Izmiritlian himself said, a licensed security guard would have had the capacity to physically intervene in the developing friction between the plaintiff and Mr Martin. 10. In his summary, Mr Zalewski, who was retained by the first defendant, concluded: "In my opinion, the system of security in place at the time was reasonable and aligned with common industry practice. Elements of the system included physical, personnel and protocol protections and there were 15 staff working/monitoring patrons at the time of the incident. The premises were low risk, held a restaurant liquor licence, was never listed in the Violent Venues Register and was not a vertical drinking environment. Further, the incident occurred just before 6pm, a time not considered high risk for any licensed premises." 1. The above summary is rife with inaccuracies: 1. There may have been a number of staff working at the premises, and even frequently walking amongst the patrons. However, to say they were monitoring intoxication is unfounded speculation. I have mentioned above that the staff seemed intent on pursuing their destinations by going from A to B without apparent attention to the various patrons they passed on their journeys. 2. The premises may have held a restaurant liquor licence, but it was far from a placid restaurant environment. It was full of young people drinking alcohol, with scant evidence of eating. 3. The requirement for vertical drinking was not applied to the Martin group who are seen, on the CCTV footage, to be drinking and dancing near the bar. 4. The incident occurred after 6pm on the final Friday before Christmas. The assumption that 5pm onwards was not a high-risk period is untenable. 1. Mr Smith was retained by the second defendant. His viewing of the CCTV footage did not raise any concern that the plaintiff or his associates, were either "intoxicated or engaging in disorderly or quarrelsome behaviour". This of course is incorrect. The dancing alone, and in particular while drinking, contradicts Mr Smith. Further, Mr Smith did not have the benefit of the evidence of Mr Kovacevic or Mr Garrow. Their evidence makes it quite clear that there was "disorderly or quarrelsome behaviour" on the part of the Martin group. 2. In relation to the cross-claim, Mr Smith took issue with Mr Zalewski's opinion that the security staff "failed to adopt immediate control of the incident by assertively intervening and separating the parties". This, in the light of Mr Izmiritlian's evidence, was caused by there being no security personnel present who had the authority to intervene. This fact affects the liability of both defendants. 3. Mr Smith raised the question of the use of barstools as weapons. He said: The ease at which the assailant was able to wield the small barstool as a weapon, executing multiple successive and rapid blows to the Plaintiff highlights both the danger and necessity for 'bar furniture' to be factored into a venues weapon reduction strategy. Bar furniture that is either heavy based, or of a design that makes it unwieldy to pick up and use as a weapon, is frequently used as a means of mitigating the potential for barstools and other seating being used as an improvised weapon." (Ex B, p 495) 1. Mr Champ said that heavier barstools would have made stacking and other practicalities more difficult. Mr Zalewski made the point that "elimination of all potential weapons is impossible considering drinking vessels are potentially the most common hazard on licensed premises" (Ex B, p 502). 2. He also indicated, as had Mr Champ, that glasses were equally dangerous. Mr Zalewski continued: "Fixed or heavy based furniture have certain limitations. For example, fixed furniture provides no flexibility for patron/seat positioning but prevents throwing or propelling. "Heavy based" stools or similar can impact upon weapon usage that can also result in manual handling or trip, slip or fall injuries for staff and patrons" (Ex B, 502). 1. I am not satisfied that the furniture allegation helps either the plaintiff or the second defendant. I do not think I could reach a conclusion that but for the presence of the lightweight stools an injury would not have occurred. Mr Martin, may well have inflicted greater damage with a heavier chair or whatever other implement came to hand. An attack with a glass could have had horrific consequences for the plaintiff. 2. I do not think the security experts have greatly assisted on the issue of liability. Once I became satisfied that Mr Martin and his group had been rowdy and intoxicated, essentially since their arrival, and certainly since the arrival of the plaintiff, liability flowed with little difficulty. 3. In addition, the absence of proper security staff, both as to numbers and capacity, made the liability of the defendants plain. As to the sharing of liability between the defendants, I think they are equally liable. 4. It was the responsibility of both defendants to monitor and, if necessary, evict Mr Martin and his group. The second defendant provided inadequately qualified staff; the first defendant permitted the centre to function with inadequate security. I am satisfied that both defendants were aware that the Martin group were misbehaving. The staff of both defendants would, or ought to, have seen the Martin group being offensive, standing up and drinking and generally misbehaving. Other than a brief sign of interest by Mr Izmiritlian, no member of either staff acted appropriately to monitor, assess, or take any action in respect of the Martin group. 5. The second defendant submitted that, as a labour hire company, doing no more than supplying the personnel requested by the first defendant, its liability could not be derived from any obligation delegated to it by the first defendant. I agree, however, as the second defendant conceded, besides any possible liability through delegation, it also owed the plaintiff a duty of care through the actions of its employees. 6. As I have said, both the Crossguard staff and the first defendant's staff were aware of the misbehaviour and intoxication of the Martin group. The second defendant submitted that as there were only three or four of its employees on duty at the time that, when compared to the 40 members of the first defendant's staff, its liability should be correspondingly lower. 7. But as pointed out by the first defendant, its staff had a range of duties including service of alcohol, beverages and food, whereas the Crossguard employees had the specific task of monitoring alcohol consumption. Although an equal split may be a little favourable to the first defendant, I think the split is nevertheless appropriate having regard to the specific duties imposed on Crossguard. 8. I am equally satisfied that had appropriate action been taken, for instance eviction, the fight and subsequent injury to the plaintiff would not have occurred. I make the same finding in respect of intervention once the argument had started. In other words, I am satisfied that the plaintiff's injuries were caused by the breach of duty of the defendants. Put yet another way, but for the failure to control or evict Mr Martin and his friends, or to have intervened in the altercation, the plaintiff would not have been injured. Contributory negligence 1. Sections 5R and 5S of the Civil Liability Act are applicable to the claim for contributory negligence. The defendants submitted that the plaintiff initiated the physical altercation with Mr Martin in a situation where he had the option to simply leave the scene. 2. I think it important to reaffirm that Mr Martin had loudly expressed an adverse view of the plaintiff's group well before the fight, in particular about Mr Bradshaw's tattoos. This conduct is precisely the type of conduct that should have led the defendants' staff to take action against the Martin group. 3. I do also accept however, that when the plaintiff was conversing with Mr Martin the conversation obviously reached a point of substantial antagonism. Like Mr Bradshaw, I think the plaintiff had the option to walk away from the Martin group. In addition, the plaintiff pushed Mr Martin, perhaps justifiably, in his view, because of what was being said to him, but there is no suggestion that he was acting in self-defence. The same applies to the punch that he aimed at Mr Martin. 4. The plaintiff told Dr Samuell that Mr Martin had "got into his face", causing the plaintiff to push Mr Martin away (Ex B, p 433). The CCTV footage clearly shows Mr Martin pointing to the street, presumably to engage in physical combat with the plaintiff. 5. I think there was contributory negligence on the part of the plaintiff, but I think it is far exceeded by that of the defendants in allowing abusive, aggressive and obviously intoxicated persons to be on the premises. Had the Martin group been evicted or controlled no incident would have occurred. But they were permitted to be there, enabling the altercation to commence. The plaintiff should have ignored whatever taunting was aimed at him, but he chose to remain and take part. In doing so he failed to take care for his own safety. 6. In my view, the presence of the Martin group was by far the major factor in the altercation. I assess contributory negligence at 20%. Damages 1. The starting point is to decide the nature and extent of the plaintiff's injuries both immediately after the assault and continuing to the present time. Although the plaintiff accepts that there has been substantial improvement in his condition, he nevertheless asserts continuing physical (occasional neck pain and scarring) and significant mental incapacity. 2. The plaintiff was transported by ambulance to the St Vincent's Hospital Emergency Department. He arrived just after 7pm. The triage notes referred to a brief loss of consciousness, a headache, a broken tooth and a tender upper chest wall. On examination no "focal neurological deficit" was identified and after being given some pain-relief medication, the plaintiff was sent for CT scans. These included his head, neck and facial bones. No fractures or intracerebral injury were noticed. A chest x-ray also detected no abnormality. 3. The plaintiff's lacerations were sutured. He was discharged later in the evening. 4. The plaintiff returned to the Emergency Department on 3 January 2018, complaining of a persistent headache. He also told the staff that he found it difficult to concentrate and was "unable to perform his daily duties at work. He is stressed about the current situation, added to his recent relationship breakdown." He said that he was "concerned about meeting financial overheads". He also complained about flashbacks. 5. The plaintiff was sent for a CT scan of his brain, which like the scan on 22 December 2017, revealed no relevant abnormality. 6. The plaintiff was back at the hospital on 11 January 2018, where he was seen by a rehabilitation specialist, Dr Mosalski. He complained of a depressed mood, difficulties with his speech and an inability to enjoy food. His headache was "unrelenting". He reported that he had been using cannabis as an analgesic and "to put his mind at rest". Dr Mosalski wrote a letter to the Emergency Department in which he said: "He has significant cognitive and also physical fatigue, giving multiple examples of overstimulation and when stressed with complex situations he becomes more short tempered and also unable to cope. He was previously 'a happy-go-lucky kind of guy' as reported by his mother but is now more short tempered and also angry… Throughout the consultation Clinton was very teary and very distressed, avoiding eye contact, walking into the room with a broad-based gait and wearing sunglasses. We spent a significant amount of time building rapport….. He reports no neurological deficits and the gross neurological exam of his limbs including power, tone and sensation revealed no deficits. Visual acuity and visual fields appeared normal on examination at the bedside today, there were no other reports of cranial nerve changes." As mentioned, Clinton was very upset and I believe him to be suffering from post-concussive syndrome. I explained that despite there being no bleed or fractures on his CT brain, this does not mean he has not had a head injury and we do believe the fact he is suffering at this stage. (Ex D, page 704) 1. The doctor recommended pain-relief medication, refraining from working and driving and advised rest. The plaintiff was told to avoid alcohol and not to take cannabis or any other drugs. He was told not to go back to the gym, and to only perform "low-level activities, such as reading or playing with his dog whilst his brain has time to recover". 2. The plaintiff returned to St Vincent's Hospital on 15 February 2018, and again saw Dr Mosalski. He said that he had been living in Bathurst, driving but not working, fasting intermittently and only eating vegetables and nuts. He told the doctor that "he trains for 4 to 6 hours which involves walking, running and also gym work, something which I advised against previously". 3. The plaintiff told Dr Mosalski that he was not having headaches and had stopped taking the pain-relief medication. He said that he was "no longer working for his business which is being run by an associate". He said that he was not drinking alcohol and not using illicit drugs, steroids or testosterone. 4. Dr Mosalski thought there were psychological issues to be explored and recommended that the plaintiff see a clinical psychologist. He thought the post concussive symptoms were improving and would carry on improving. 5. The doctor thought that "most of his post-concussive symptoms have indeed settled, he still complains of fatigue and also difficulty sleeping." The doctor told him that "psychological recovery could be a long process" 6. On 16 February 2018, Dr Mosalski wrote to the plaintiff. He advised him against intermittent fasting and "high level of exercise". He discharged him from the Day Hospital and again recommended a referral to a clinical psychologist. 7. I have spent some time on this initial period because it effectively represents all of the treatment that the plaintiff has had since the assault. At the same time, however, when the plaintiff was discharged from Dr Mosalski's care, the doctor was still recommending on-going psychological treatment. As will be seen below, the plaintiff's background may well have made him more vulnerable to psychological injury following the assault. 8. I was reminded by the plaintiff that the defendants must take the plaintiff as they find him. The fact that he, perhaps foolishly, although no failure to mitigate was pleaded, has had no further treatment does not mean that he has not continued to suffer some psychological injury. 9. The plaintiff's assertion was that while he had periods when he could function, there were also long periods during which he was effectively incapable of doing any work, he would need to stay at home, he was anxious and depressed. The activities that were revealed during cross-examination did not cover every day of the last five years, but they paint a very different picture to that presented by the plaintiff. 10. These activities included the following in the two years following the assault: 1. Attending a city nightclub for a New Year's Eve party, on 31 December 2017. 2. Flying to Cairns to collect stock and then assisting in the drive back to Sydney, in March 2018. 3. Gambling at the Star Casino and later dining at a restaurant in Palm Beach, at the end of March 2018. 4. Taking part in a fitness expo including performing a work demonstration, in April 2018. 5. Also in April 2018, taking part in a podcast where he says "I feel better than ever" after commencing a vegan diet. 6. In May 2018, travelling to Hong Kong for business. 7. Competing in a bodybuilding competition in July 2018. 8. Posting videos of himself doing various exercises. 9. Travelling to Hong Kong again, and mainland China, in September 2018. The plaintiff's apparently calm attitude to a typhoon seems inconsistent with his alleged anxiety. 10. Attending a bodybuilding and fitness expo on the Gold Coast in October 2018 and taking part in a television program called "Muscle-Bound Gangsters". 11. Commencing his posts on the OnlyFans website in October 2018. 12. Travelling to Thailand to a fitness retreat and training camp in November 2018. 13. Travelling to Greece in June 2019 to do promotional work. 1. I think the plaintiff's injuries are best reflected in the summary given by Dr Walker, a neurologist, on 16 September 2020: "Mr Chadwick was struck on the head several times in an assault on 22 December 2017. Whilst he was rendered unconscious there was no evidence of a significant traumatic brain injury. Specifically, there was only momentary loss of consciousness (if at all), no post-traumatic amnesia, a normal glass go Coma Scale at the scene and subsequently, and normal imaging. Post injury he had some neck pain and headaches which would be entirely understandable however within a number of weeks he had developed significant mental health issues which has been the main problem since. Fortunately in recent months there has been a significant improvement in his symptoms and his prognosis looks good." 1. Dr Klug (retained by the plaintiff) and Dr Samuell (retained by the first defendant) gave concurrent evidence. They are psychiatrists. Unfortunately, the usual benefits of concurrent evidence were not entirely gained because the questioning of the doctors was conducted more in the nature of a cross-examination based on putting assumptions favourable to the respective parties position and then endeavouring to have the doctor agree with an opposing view. 2. Both doctors essentially maintained their positions; Dr Samuell thought that there is not much mentally wrong with the plaintiff and Dr Klug that there is a lot wrong with him. My initial thought was that when the assumptions about the various activities and business ventures, which had occurred after the incident, were put to Dr Klug that he would have little choice but to modify his opinion. His response was effectively not to accept them and therefore, not concede any change to his diagnosis. 3. After further questioning I understood Dr Klug's position as being based on his assessment of the seriousness of the initial injury to the effect that the assumptions could not be easily accepted because of their inconsistency with what had originally occurred. He mentioned the plaintiff being bashed on the head with a metal stool two or three times, suffering three significant lacerations and losing consciousness. An injury of this type was necessarily serious. 4. Dr Samuell regarded the assumptions as proof of his opinion. He went so far as to say that if a patient of his own had conducted himself in the same manner as the plaintiff then he would have discharged that patient from his care. 5. Another area of assumptions put to the doctors concerned the plaintiff's upbringing. Dr Klug, despite not originally having the detail, said the added facts about problems in childhood did not lead to any change of opinion. 6. Both doctors did agree that if a person had problems as a child, but then appeared to have surmounted those problems, then a traumatic event might have a greater effect on the person than might otherwise have been the case. 7. I thought Dr Klug was perhaps too reluctant to admit to a different opinion when certain facts were revealed to him. On the other hand, I found Dr Samuell tended towards the view that the plaintiff, while not being dishonest, was putting his 'best foot forward' by some margin. This is illustrated by the following excerpt from his report: "He was pleasant and cooperative throughout the interview. He was not observed to be distressed or disordered at any stage during the assessment. His speech was normal in form. Frequently, his speech lacked experiential detail, giving the impression of some evasiveness. He presented as articulate and intelligent." (Ex B page 436) 1. The reference to evasiveness seems completely gratuitous and entirely out of the context that was being discussed by the doctor. 2. Dr Samuell, however, did form an opinion not entirely inconsistent with the ultimate approach taken by the plaintiff. In relation to work capacity he said: "In my opinion, he is capable of working for at least 20 hours per week doing some work for which he is qualified" (Ex B, 448). 1. My reading of the just quoted opinion is that there is a concession, on the part of Dr Samuell, that there was, as at the date of the report (8 November 2021) some continuing incapacity to work which is attributable to the assault. 2. Another area of dispute between the experts concerned the cause of the plaintiff's psychotic episode, in September 2020. Dr Klug thought the episode was a product of a substance abuse disorder. The plaintiff's case was that, whatever drugs he was taking before the assault, he did not have a substance abuse disorder. In particular, it was only after the assault that he commenced taking psilocybins (magic mushrooms). The use of this was consistent with the delusions and paranoia associated with the psychotic episode. 3. Dr Samuell had a very different view about the background to the psychotic episode. He attributed a great deal more to the plaintiff's pre-morbid history than Dr Klug. Dr Samuell also referred (in the joint report) to the plaintiff's "lengthy history of polysubstance abuse" stating that "it is likely that he will continue to have issues with polysubstance abuse, irrespective of the subject incident" (Ex B, p 449G). Dr Samuell also referred to the plaintiff's pre-injury history and quoted from the St Vincent's Hospital discharge summary on 2 October 2020, which referred to "extensive physical, emotional and sexual abuse" before the assault. 4. I am not satisfied that the plaintiff has established that the psychotic episode, in September 2020, was caused by the assault in December 2017. The issue takes on an added significance because the plaintiff's Instagram account was suspended following the September 2020 incident. It is not clear exactly why this occurred, but the fact that it did occur meant that the plaintiff's main avenue as an influencer was cut off. 5. Finally, in respect of September 2020, I note that the plaintiff's description of the incident in his evidentiary statement is somewhat more simplistic than the detail of what occurred. This included other incidents in particular concerning allegations of domestic violence against his partner. 6. The neuropsychology experts, Dr Rowe for the plaintiff and Prof Mattick for the first defendant, also gave concurrent evidence. Dr Rowe found a cognitively and psychiatrically impaired plaintiff. Prof Mattick found only some signs of an ever-diminishing post-traumatic stress disorder. He thought the plaintiff had continuing mental health problems in 2017 and was using illicit drugs, including cocaine. 7. Working out the plaintiff's condition before December 2017 is difficult. Dr Rowe points to his functioning in a successful business. However, the business was not perhaps as successful as it may have appeared. As will be discussed in more detail below, the business seemed to have many clients and to be selling a lot of activewear. But it had no cash, it was dependent upon injections of capital from other persons (like the plaintiff's father) and had a good chance of running out of stock. The plaintiff's assertions that the Boxing Day sales would 'cure all' needs to be treated with some scepticism. The heavy discounting at the sales may not have produced the income necessary to continue, even assuming a high level of sales was achieved. The likely use of the profits is also uncertain. 8. An area of significant dispute between the experts related to the assorted tests that had been administered to the plaintiff in order to assess his cognitive impairment. Prof Mattick suggested the tests had no scientific background and lacked the normative data that was behind, for example, the Weschler tests. He went so far as to say that Dr Rowe had misled the court. 9. Dr Rowe responded that his tests were valid and that, at least in one case, the database that existed actually exceeded the base in the Weschler tests. I am not in a position to decide which test is better. The real issue here is whether there is cognitive impairment on the whole of the evidence presented to the court. 10. Another area of some dispute related to the importance of pre-injury history. Prof Mattick thought that the whole of a person's history was relevant. Dr Rowe said that where there had been some years of stability (perhaps five to eight years) before an injury, then pre-accident history, for example in childhood, was less important. 11. There is probably some merit in both approaches. One can well understand that items of history going back many years might continue to play a part in a person's psychological make up. On the other hand, a number of years before an injury in which the person had performed without any sign of mental disturbance, would suggest that any earlier mental issues were either in remission or had been overcome. 12. One issue on which the experts did at least seem to agree, related to the effect of the plaintiff having created a brand of himself which included the creation of a successful business. If the business failed for a reason not related to the injury, then the plaintiff might have, as a means of maintaining the brand, attributed any damage to the brand as resulting from the injury. 13. In addition, if the brand had been damaged by the plaintiff posting images of himself in hospital, then his attempted reconstruction of the brand through a message of a 'return to health', might create a false or exaggerated attribution of the harm to the brand as resulting from the injury. 14. Prof Mattick, having administered a test called the Minnesota Multiphasic Personality Inventory-Second Edition- Restructured Form, found that there had been exaggeration or embellishment on the part of the plaintiff in his description of his symptoms. Prof Mattick was careful to say that there had not been a "frank feigning" of the symptoms, but only an exaggeration. 15. He also found, having administered a different test (the Test of Memory Malingering) that the plaintiff had "performed well, showing no evidence of lack of effort, with an overall score on trial one of 46/50. He also showed no evidence of poor effort on the embedded tests in the WAIS-IV". 16. These results of the 'effort' tests are perhaps inconsistent with the 'exaggeration' to the extent that a person pretending to be more ill than he really was, would likely be reluctant to perform well in a test. 17. Dr Rowe thought there was an organic brain injury. Prof Mattick, disagreed, citing the total absence on the various brain scans of any objective sign of brain injury. I had the impression that Dr Rowe, like Dr Klug, reached his conclusions because the nature of the assault (being repeatedly bashed on the head with a metal stool) suggested an inevitable result of organic brain injury. 18. I prefer Prof Mattick's conclusions on this point, although do not necessarily accept his conclusions about a minimal injury. I think, as did both psychologists (to varying degrees) that the plaintiff did suffer post-traumatic stress disorder and that it continued for some time and perhaps, although to a diminishing extent, continues to the present. I think this conclusion is consistent with Dr Walker's opinion which I have set out above. 19. In relation to the plaintiff's orthopaedic injuries there was a rare agreement between the parties, or at least their experts. Dr Giblin and Prof Shatwell agreed that the plaintiff had suffered a "minor injury to the neck" with "little in the way of continuing disability". They also agreed that "the injuries due to the subject accident should have settled within three months of the incident". 20. In his report of 12 August 2019, Dr Giblin described the plaintiff scoring as follows: "There are three post-traumatic scores, 3 cm over the lateral aspect of his left supraorbital area, 9 cm and 8 cm over his parietal and temporal area and there is a 10 cm surgical scar in the occipital area where he had his hair transplants" (Ex B, 387). 1. It was not suggested that the hair transplants scar was connected to the injury and I was not specifically shown the other scars. However, I was told that they formed part of the claim and no doubt felt by the plaintiff to be a blemish on his body. There was also a broken tooth, which has been repaired. 2. The overall conclusion I have reached about the plaintiff's injuries, in respect of non-economic loss, is that he suffered a very traumatic experience resulting in a post-traumatic stress disorder. There was however no organic brain injury, but there was a minor neck injury as well as some permanent scarring. I think the post-traumatic stress disorder has continued to the present, but as I have said, is gradually resolving. 3. In addition, I do not think the plaintiff has consciously exaggerated his symptoms, but I do think that his perception of his brand and image have been damaged, even if not actually so, to the extent that there has been a psychological impact on his confidence and self-worth. 4. Taking all of the above into account, I assess noneconomic loss at 25% of a most extreme case. This equates to $46,000. 5. Turning to medical expenses, the plaintiff's claim for work on his teeth was $23,445, being 50% of the total invoice of $46,890. The bulk of the expense seems to have arisen from the plaintiff's top teeth being made to match the repaired tooth. It completely escapes me as to why the repaired tooth could not have been made to match the existing teeth. 6. There is also the evidence of the plaintiff posting footage of himself at the dentist, no doubt to encourage patronage of the dentist. It is unclear whether any 'contra' deal was in place. What I can conclude is that even though the bill has been reduced by 50%, the plaintiff has not established, on the balance of probabilities, that the damage to his tooth occasioned the degree of work undertaken by the dentist. 7. I think if I allow $2,000 for the dental work this will be appropriate compensation for the damage to the tooth. 8. As for the other medical expenses, no invoices or receipts were tendered and no concessions were made by the defendants. As already mentioned, the plaintiff has not had any medical treatment since March 2018. The psychiatrists suggested some therapy, but Dr Klug said he thought it unlikely this would be taken up having regard to the plaintiff not having taken up previous suggestions of treatment. 9. In his evidentiary statement the plaintiff does refer to having physiotherapy in late 2018 in early 2019. He also says that he spoke to Dr Rowe about psychological treatment. 10. The plaintiff has said that he takes medicinal cannabis, but I am unaware of the cost. Contrary to the submissions of the defendants, I do not find that there is no evidence of treatment and no evidence of likely treatment. I think the plaintiff is entitled to a global allowance on the basis that he will seek psychological treatment in the future and has had some limited, mostly physiotherapy, expenses in the past. I will allow a global sum of $5000 plus the $2000 for the tooth. 11. Mr Gordon, for the plaintiff, and Mr Ivey, for the first defendant, gave concurrent evidence. They are both forensic accountants. They attempted to analyse the plaintiff's past and future economic loss. They agreed that the exercise required a good deal of speculation. 12. Most of the speculation emanated from their assessment of the viability of the plaintiff's business, Rig Fit. Essentially the question asked was: based on the performance of the business up to the plaintiff's injury, did the business have a viable future? 13. Mr Ivey was firm in his view that it did not. The basis for this view was that the business was running at a loss, all of the plaintiff's accounts were in debt, the business owed other people large sums of money and, absent substantial re-stocking and capital, it had no chance of success. 14. Mr Gordon took a more benign view; acknowledging that while the business figures suggested a grim prognosis, there was always the possibility of an injection of funds or, more likely, the intervention of a third party who would, perhaps using a different approach, achieve better results. 15. Central to the plaintiff's case was his assertion that but for his injury his business, primarily through its Bondi store, would participate in Boxing Day sales which would have generated income in the order of $100,000. 16. An important document, was the "Summary of Monthly Sales Results" of Rig Fit (Ex B, p 236C). Commencing in July 2017 the total sales of the business varied on a monthly basis, but grew to $95,350 in November 2017 (up from $73,585 in October). There is then a sharp decline in December down to $27,914. The December sales presumably all occurred before 22 December. 17. The Black Friday sales in Australia were on 24 November 2017, and were probably responsible for the growth in sales. This is the same type of result that the plaintiff asserts would have occurred on Boxing Day. Had the Boxing Day sale gone ahead the December sales figure would have been in the order of $127,000. 18. The plaintiff, despite a wide-ranging and vigourous cross-examination from both defendants, was never challenged on this estimation. 19. The defendants said there was no need for a specific challenge because they had attacked him on his credit and practically every other aspect of his business so that any estimate of Boxing Day sales would be encompassed within the overall challenge. 20. The assertion of the $100,000 in sales was an important part, and emphasised to be so, in the plaintiff's case. If there was to be a challenge, I think it should have been specifically made. Nevertheless, the power of the possible receipt of the $100,000 is affected by the following matters: 1. Where would the $100,000 have been spent? Having regard to the plaintiff's debts, his use of possibly large and expensive amounts of cocaine and his general use of the business account to pay personal expenses, it is somewhat speculative to assume the money would have gone back into the business. 2. The $100,000 would not have been received immediately. Presumably a large proportion of the money would have taken some time to arrive, the payments having been made through credit cards, PayPal and after pay. 3. Why did the sale not go ahead in any event? The injury was four days before Boxing Day. Presumably a significant amount of preparation had already taken place. In his evidentiary statement, the plaintiff said that December was "structured … [a]round the Boxing Day sale, being the biggest sales day of the year." (Ex B, p 65). Accepting the plaintiff may not have been able to attend the shop himself, could he not have arranged for another person to be there? 1. The result of the above uncertainty is that while I accept that $100,000, or thereabouts, might have been generated by a Boxing Day sale, I cannot take the next step to say that the business would then necessarily have been successful. 2. The plaintiff did go back to work and has done many things to further his business interests. At one stage he attracted $400,000 in investment, but this produced no positive results. Once his Instagram account was closed, in September 2020, his capacity to be a successful influencer was severely impaired. To his credit he has taken up other business interests, including the mentoring of a Mr Nielsen and a Ms Byers. He has mostly operated through Chadwick Media Pty Ltd and he has received funds from the above two persons. 3. A good deal of cross-examination centred on other companies associated with the plaintiff. These include Unlimited Organics, Hermanus Clothing Pty Ltd, and Conscious Creations Group. I accept the plaintiff that most of these ventures were simply expressions of a concept which ultimately were not productive of any income to him. 4. I accept the report of Mr Miller (Ex B, tb 56) as to the possible economic power of influencers and Instagram accounts. The limiting factor upon Mr Miller's views is my prior conclusion that Rig Fit was not a viable business. 5. I am also not satisfied that the plaintiff has, for most of the time since the injury, been incapable of producing an income. The plaintiff does concede a degree of capacity for economic gain but says his claim should be treated through a discount on the loss of the opportunity he had to pursue his business. This approach is precluded by my conclusion that Rig Fit was, at the time of the injury, not a viable business. 6. The plaintiff has plans, such as a future trip to Greece and filming in the United States. The plaintiff clearly has a continuing earning capacity which he is exercising. It is difficult to ascertain precisely what this capacity is in monetary terms. 7. As previously stated, the plaintiff was a competent fitter and turner, a profession to which he could possibly return. In relation to whether he worked for two days or two weeks for Lend Lease, I am unable to reach any positive conclusion. I do however accept that Lend Lease was willing to re-employ him in March 2018, signifying satisfaction by this company of his competence. 8. The plaintiff was paid $1,751.80 per week by Lend Lease. This is about $300 more than average weekly earnings in 2018. Assuming the payment was before tax, it equates to $1,330 after-tax. Gross average weekly earnings of $1,453 is $1,135 net. 9. There have been 272 weeks since the injury. There have been periods when the plaintiff's incapacity was greater and, as I have found, the incapacity is diminishing with time. Doing the best I can to achieve a balance between his capacity and the times when he could not work or produce an income, I think a fair approach would be to allow for half of net average weekly earnings to date. Although this loss is constant, it takes into account fluctuations between a total loss and no loss at all. 10. The calculation is 272 x 567.50 = 154,360. This is the amount I will allow for past economic loss. 11. If the plaintiff had continued in his business, I doubt he would have made, at least in the initial stages, any contribution to superannuation. However, as an employee he would have been entitled to such benefits. As I have assessed him essentially as an employee, I will allow past lost superannuation benefits at an average of 12%. This is $18,523. 12. For the future, I think economic loss is very limited. The plaintiff has plans and his post-traumatic stress disorder and psychological symptoms seem to be resolved or close to resolution. I think a very small buffer of $25,000 is appropriate. 13. A summary of the damages I have allowed is as follows: Non-economic loss $46,000.00 Past and future out of pocket expenses $7,000.00 Past economic loss $154,360.00 Past lost superannuation benefits $18,523.00 Future economic loss $25,000.00 Total $250,883.00 1. After the reduction for contributory negligence of 20%, the total is reduced to $200,706.40. Orders 1. I make the following orders: 1. Verdict for the plaintiff against the first and second defendants for $200,706.40. 2. The defendants are to pay the plaintiff's costs of the proceedings. 3. On the cross-claims, verdict for each cross claimant for contribution or indemnity to the extent of 50% of the damages and costs payable to the plaintiff. 4. Each of the defendants is to pay its own costs of their respective cross-claim. 5. The parties have leave to make further submissions in relation to alternate costs orders. ********** Amendments 20 March 2023 - Incorrect spelling of Salerno Law amended DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 March 2023