Carlyon v Town & Country Pubs No. 2 Pty Ltd T/A Queens Hotel Gladstone [2015] QSC 13

SUPREME COURT OF QUEENSLAND CITATION: Carlyon v Town & Country Pubs No. 2 Pty Ltd T/A Queens Hotel Gladstone [2015] QSC 13 PARTIES: MATHEW JASON CARLYON (Plaintiff) v TOWN & COUNTRY PUBS NO. 2 PTY LTD TRADING AS QUEENS HOTEL GLADSTONE (Defendant) FILE NO/S: 339 of 2011 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: Supreme Court at Rockhampton DELIVERED ON: 3 February 2015 DELIVERED AT: Brisbane HEARING DATE: 11 – 13 November 2014 JUDGE: Ann Lyons J ORDER: Judgment for the Defendant. CATCHWORDS: TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – MISCELLANEOUS CASES – where the defendant argues that it could not owe a duty of care to the plaintiff because any such duty would be incoherent with the defendant’s rights and responsibilities under the Liquor Act 1992 (Qld) – whether the defendant owes a duty of care to the plaintiff TORTS – TRESPASS – TRESPASS TO THE PERSON – ACTION FOR DAMAGES – ONUS OF PROOF – where the plaintiff is claiming damages after sustaining injuries caused by assault – whether the defendant’s employees assaulted the plaintiff – whether the defendant is vicariously liable TORTS - NEGLIGENCE – PROOF OF NEGLIGENCE – ONUS OF PROOF – where the plaintiff is claiming damages after sustaining injuries caused by negligence – whether the defendant was negligent Evidence Act 1977 (Qld) s 92(1)(a) Liability Regulation 2003 (Qld) (Reprint 1A) Liquor Act 1992 (Qld), s 165(1) and (2), s 165(3) -- 1 of 25 -- 2 C.A.L No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390 Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469 Ferguson v Calnan & Anor [2002] QSC 342 Hogno & Anor v Racing Queensland Ltd & Ors [2013] QCA 139 Horkin v North Melbourne Football Club Social Club [1983] 1 VR 153 Lamble v Howl at the Moon Broadbeach Pty Ltd [2013] QSC 244 Sullivan v Moody (2001) 207 CLR 562 Williams v Milotin (1957) 97 CLR 465 COUNSEL: G F Crow QC with J Clarke for the plaintiff R C Morton for the defendant SOLICITORS: Chris Trevor & Associates for the plaintiff Moray & Agnew for the defendant ANN LYONS J: The plaintiff’s claim [1] Mathew Carlyon is a 34 year old mechanical fitter who completed his four year apprenticeship in 2002. He has been working for over a decade on a number of major construction projects in Darwin, Cloncurry, Collinsville, Gladstone, Biloela and Rockhampton. He is currently employed by Santos on Curtis Island as a mechanical fitter and is involved in “shutdown work”. [2] Five and a half years ago, in the early hours of 9 May 2009, he suffered a serious injury and broke his leg as a result of a fall down the front steps of the Queens Hotel in Gladstone as he was being evicted by security staff. He is claiming damages from the hotel owners on the basis that his injuries are the result of the assaults and negligence of the security staff during that eviction and the failure of the defendants to provide a safe system of security. The circumstances surrounding the incident [3] By way of background it would seem uncontentious that around lunchtime on 8 May 2009 the plaintiff finished work at the Callide Power Station and headed into Gladstone for the weekend. He arrived around 1 or 1.30pm and then headed to the Grand Hotel mid afternoon, probably around 3pm, to go drinking. It is clear that he had a number of rum and cokes over the course of the next few hours. He subsequently spent some time at his friend Nathan Smith’s home and then attended a BBQ and watched football at the home of his friend Glenn Whitehouse. The plaintiff told police that he estimated that he had consumed ‘about’ 20 rum and cokes during the course of the afternoon and evening prior to going to the Queens Hotel about 11 or 11.30pm. It would seem therefore that the consumption of that alcohol occurred over an eight to eight and a half hour period. -- 2 of 25 -- 3 [4] The evidence of Glenn Whitehouse and Nathan Smith is that the plaintiff was drinking steadily throughout the evening, but they considered he “was fine” and they cannot recall anything untoward in his behaviour or appearance as he left around 11pm to head into the Queens Hotel. Mr Whitehouse stated that he did not think the plaintiff was drunk but he was in good spirits and was happy. [5] On arrival at the hotel the clear evidence is that the plaintiff had a drink at the front bar and then headed to the back bar looking for people he knew. It is also uncontroversial that as a result of an incident at the back bar, for which the plaintiff maintains he was not responsible, he was asked by the bar attendant to leave. The bar attendant summoned security at approximately 12.13am on the morning of Saturday, 9 May 2009. [6] There are then varying accounts as to what happened after the plaintiff was told to leave. The security guard Shaan Ioane, who physically removed the plaintiff from the premises that evening, was unable to be located and was not called to give evidence. It is believed that he may have returned to New Zealand. The plaintiff, a security guard Adrian O’Dea and the manager Warren Holland gave evidence as to what they saw that night. [7] The incident was also captured on closed circuit television by four separate cameras inside the hotel and on a Gladstone City Council camera located in the street outside the hotel. That evidence indicates that a period of four minutes elapsed between the time the plaintiff was asked to leave and the time at which he fell to the footpath. The footage from two of the hotel cameras was provided to police on 9 May 2009 and the footage from the two remaining hotel cameras was provided a week later on 16 May 2009. Whilst investigating officers viewed that footage it was ultimately lost by police. The evidence of the former manager Warren Holland is that the footage was also saved on the hotel’s hard drive and was still on the hard drive when he left his employment in October 2010. I accept however that none of that footage can currently be located. [8] The television footage however was viewed by the investigating police officer Senior Constable Vicki Schultz (nee Foster) on 9 May 2009 and 16 May 2009. Senior Constable Schultz made notes of what she saw on those dates and entered them into a Report on the QPS computer system. I was satisfied that those notes should be admitted into evidence pursuant to s 92(1)(a) of the Evidence Act 1977 (Qld). I will discuss those notes shortly but I shall turn first to the plaintiff’s account of what happened to him. The plaintiff’s account of the incident [9] Mr Carlyon’s evidence was that after obtaining a drink at the front bar he then moved to the back bar and was waiting to be served when he noticed four or five men in front of him having a drink. He stated that he spoke to one of them as he waited to be served and noticed one of them knock a drink over and then leave. When he then asked the barman for a drink he was accused of knocking the drink over. He stated that as he explained his position he was refused service and when he asked the barman if he could speak to someone to sort it out the barman called one of the bouncers over to speak to him. They initially spoke at the bar and then moved in between two tables away from the bar. He said that they had a bit of a chat and he tried to explain what happened. He indicated that his recollection was that he was -- 3 of 25 -- 4 told by the bouncer that “you either leave on your own terms or we’ll get the police to remove you”. [10] Mr Carlyon stated that he started to walk out towards the entrance with the bouncer but that as he was walking out he thought he saw a group of girls he knew at a table. He then took two steps in their direction to say hello at which point the bouncer patted him on the shoulder and sort of said “bud you’re leaving”. He stated he then took a couple more steps towards the front door and then “for no reason” he was grabbed around the neck in a head lock position. He stated he was held in a “full locked chocker hold where I was restricted, bent down, could not stand up, could not move”. He stated that both arms were extended behind towards the middle. He continued: “I felt very scared because I had two guys physically restraining me. I - I've known in the past that - and I - thoughts went through my head of let's - let's just let this happen and be out of it because in - there's no way that you want to resist against two people that have got you fully restrained. That's - and I tried to just let them take me out instead of resisting for unbeknownst reactions of them. … - since I was bent over I recall throwing my feet out a couple of times because I wasn't allowed - I was pushed from behind and dragged from the head. The only thing I could probably move was my legs. I do recall sort of trying to stand up, but I was not allowed to.”1 [11] He stated also that: “Leading to the stairs I had no control over my - my movements as far as my upper body was concerned, and I was forcibly dragged, pushed, in - in a position that I - I could not do - do anything, have any control over my own actions. I was - I was fully restrained as far as I was aware.” … When we reached the top of the stairs it - it all felt as a fluid motion. When we reached the top of the stairs I felt my arm become loose, but I still had some - the guy around my neck as we went down the stairs. Then I - when I - when I hit the bottom, that's when I felt my neck being released, once I was on the ground, on - on the bottom of the stairs. It was best - biggest hit I've ever - I've never been hit like that in my life. Never felt - hit the ground like that in my life.” 2 [12] The plaintiff stated he weighed around 83 kilograms at the time but that the bouncer who removed him was at least 40 kilograms heavier and was a large New Zealander. That description was also endorsed by other witnesses. [13] Mr Carlyon says that at no time did he try and attack the bouncers. He also stated that after he hit the ground he tried to stand up but he was in a lot of pain. He states 1 Transcript 1-31 ll 2-14 2 Transcript 1-31 l 42 – 1-32 l 7 -- 4 of 25 -- 5 that he ultimately caught a taxi to the Gladstone Hospital and after assessment he was transferred to the Rockhampton Hospital for surgery. [14] In cross-examination the plaintiff was taken through a statement he made to police on the morning of 9 May 2009 at the Gladstone Hospital. He agreed that in his statement he stated that he walked with the bouncer voluntarily but when the bouncer tried to put him a head lock he thought this was excessive and that “he ducked out of the way” but the bouncer grabbed him and dragged him through the bar and out the front. The statement then continued: “The victim has little recollection of getting out the front or going down the stairs.” The plaintiff indicated that as the whole incident occurred very quickly he does not remember the whole incident. He accepted that he did not remember ‘all’ of what had happened before he was grabbed although he stated that he now considers he remembers ‘most’ of it. Subsequent events [15] The plaintiff indicated that on 16 May 2014 he and his mother went to the Gladstone Police Station to see Senior Constable Vicki Schultz and were told that under the legislation the hotel had the right to remove a person as they see fit. They were informed that having viewed the footage the police were not going to pursue the investigation any further. He also stated that he and his mother viewed the CCTV footage during his interview. He agreed that on that occasion he told Senior Constable Schultz that the video showed events differently to the way in which he had alleged. [16] Under cross examination the plaintiff denied making a move at any point to attack the security guard and denies that was the reason why he was put in a headlock. He also denied resisting and fighting security officers. He denied shouting abuse at the security officers. He also denied pushing the security officer with his body weight as they got to the top of the stairs. The plaintiff stated that he recalls his arms being released when he got to the top of the stairs. He considers that the whole time he was being dragged out “even though it seems a little bit vague. I felt that I had to go within – let them take me out because if you try to resist them, they’re going to use more force and they were already using a lot of force.”3 The account of the incident based on Senior Constable Schultz’s notes of the CCTV footage [17] The relevant extracts from the police reports are as follows: Police report 9 May 2009 by Vicki Schultz (nee Foster) “HOLLAND provided CCTV footage of two cameras. The first depicts the victim walking through the central part of the club with a drink in his hand being followed by [Ioane] and other staff. The victim appears to be walking out voluntarily but then stops and turns towards [Ioane]. The victim speaks with [Ioane] for a short time and then begins to walk again. [Ioane] then seen to place the victim into a headlock while the other staff grab the victims arms. The second camera then depicts the group walking out of the front entrance. The 3 Transcript 1-49 ll 29-31 -- 5 of 25 -- 6 victim still in a headlock and his arms being held. The victim is then let go and tumbles down the stairs.” Police report 16 May 2009 by Vicki Schultz (nee Foster) “Veiwing (sic) this footage it depicted the victim standing at the bar of the Liquid Lounge with other unknown male persons. The victim and others have a shot and then slam the glasses to the bar. The bar attendant leans forward and speaks to the victim. The other persons leave the bar and the victim remains. The bar attendant and the victim have a verbal exchange and then the bar attendant is seen to wave over security. At 12.13am the footage depicts the security officer [Ioane] approach the victim and speak with him at the bar. From 12.13 to 12.16 both speak with the security officer gesturing towards the door way. The pair begin to move and then the victim stops and they continue to talk. Footage of the middle dance floor area then depicts at 12.16 the security officer and victim walk through the area with the victim holding a drink. As they walk towards the main bar area the victim begins to walk to the right. [Ioane] places his hand on the victims arm and directs him forwards. The victim resists and [Ioane] applies more force to correct the victims path. The victim then stops to again speak with [Ioane]. They talk for a moment with [Ioane] again gesturing for the victim to walk. The victim takes another step and again stops to talk. [Ioane] takes the victim by the arm to direct him towards the door. In the corner of the footage [Ioane] is seen to spin the victim around and place him into a head lock. Footage from the main bar area depicts the victim in a head lock by [Ioane] with another staff member holding his arm behind. The group walk straight through the bar area. The second main bar area footage depicts the group again and it appears the victim is kicking his legs out. The group stop for a moment before exiting the front door and appear to be struggling. The footage from the entrance then depicts the group walk out the front door at 12.17 and down the steps. The other staff let go of the victims arms on the stairs and [Ioane] goes down with the victim. … On the 16/05/2009 the victim was contacted by R/O and attended Gladstone Station as arranged with ………all investigations were explained to the victim at this time. The victim was also advised that no proceding (sic) would be commenced against [Ioane] in relation to this matter due to their (sic) being insufficient evidence to suggest an offence had been committed. The victim requested to view the CCTV footage available which he was shown. Upon viewing the footage the victim agreed that he had recalled the events differently to what had been depicted. The victim stated he is now aware and agrees that he did not leave the premises when he was asked to do so and that he had opportunity to do so prior to the removal becoming physical. The victim stated he understands the decision to not -- 6 of 25 -- 7 proceed with a charge and is happy with the Police investigation. The …….of the victim re-iterated this statement.” [18] Whilst Senior Constable Schultz has some memory of the CCTV footage now it is clearly not a detailed memory. She accordingly relied on her contemporaneous notes and was adamant that she would only have made a note if that is what she actually saw. She was questioned by Mr Morton as follows: “I want to ask you some things about what’s recorded in the note. You record at the very beginning of it: Viewing this footage, it depicted the victim standing at the bar of the Liquid Lounge with other unknown male persons. Now, by “the victim”, you mean the complainant, Mr Carlyon. You there?---Yes. Yes?---So – yep. That’s correct. Right: The victim and others had a shot and then slammed the glasses to the bar. Now, did you see Mr Carlyon do that on the video?---Yes. Can I take you down a bit further. You say, going down a few more lines: As they walked towards the main bar area, the victim begins to walk to the right. And then – exempt, on our copy – places his hand on the victim’s arm and directs him forwards. The victim resists and – exempt – applies more force. Do you remember what the resistance was?---I recall – I don’t remember the specific details of the resistance. I recall that he was not continuing to move forward as if to leave as he’d been instructed. Right. Now, can I then take you a bit further down to the bottom of page 7 of 12. You say: I recall – I don’t remember the specific details of the resistance. I recall that he was not continuing to move forward as if to leave as he’d been instructed.” -- 7 of 25 -- 8 [19] Senior Constable Schultz continued and stated that “It appeared to me that he was resisting being removed. I couldn’t give you any more detail other than what’s written in the occurrence”. She confirmed to Mr Morton that she got the impression that Mr Carlyon was resisting but could not be more specific. She continued: “And you go on, a bit further: The group stopped for a moment before exiting the front door and appear to be struggling. Can you tell us anything more about the struggling: what was happening?---No more than what’s written here. I don’t have any further recollection of what was in the video footage.”4 Account by solicitor for the plaintiff Margaret Esdale [20] It is clear that on 9 May 2009 the solicitor for the plaintiff also viewed the CCTV footage. It would seem that the CCTV footage covers a period of about four minutes from 12.13am until 12.17am which is the time from when the plaintiff entered the back room until the time the plaintiff was lying injured on the pavement. Ms Esdale’s handwritten account is in the following terms: “DVD 1 12.13 - comes into function room Group of about 5 skulled a drink. Alleged to have slammed glass - bar man speaking to Matt - others took off - 12.14- calls for security - Security appears - Security takes him approx 1 m away from bar DVD 2 12.16.23 – exit function room - Walking through dance room. Matt trying to speak to girls - Dark guy, bushy hair, pushes. Then steps around on way out so Matt not walking forwards DVD 3 12.17 Main Bar – have him by head walking forwards. Second guy with left arm. Black guy and white guy. White guy has left arm – guy with no hair following Main Bar – taking out front door DVD 4 Exit 12.17 1 sec from top to bottom of steps … Walked quite quickly towards the steps - Didn’t give Matt time to take the steps” 4 Transcript 2-71 ll 16 – 2-75 l 8; 2-75 ll 34-44 -- 8 of 25 -- 9 Evidence of Mrs Dianna Carlyon (the plaintiff’s mother) [21] Mrs Carlyon gave evidence that a week or so after the incident she attended the police station with her son to view the DVD and she watched it three or four times. She was asked to recall what she saw on the DVD and although she said her recollection was not “perfect”, she indicated that she could remember it. She stated that it was shot in different sections. The first section was in the bar where it was quite dark. Mathew appeared to be talking to the barman and then two men came up to Mathew and they were talking to him. Mathew went with the two men and “they were just sort of talking”. She said the next scene was in what appeared to be a hallway. She stated she had gone back to the Queens Hotel to see where these things were in her own mind and “it was like down a hallway”.5 [22] She continued: “Matty looked like he had seen somebody. He sort of looked and he veered – started – walked a couple of steps over and the blokes sort of – I don’t know whether they grabbed him then or they sort of pushed him and then the next bit was getting towards – they had Mathew. One of them sort of had him around the neck and the other one had his arm twisted and they were pushing and pulling him quite forcefully and- - -.”6 [23] When asked whether she saw the plaintiff try and strike or kick the security staff she said: “No. He was sort of moving like he was trying to get away but he wasn’t – Mathew’s not a – an aggressive person.”7 [24] When asked what occurred towards the steps, she stated: “They were moving him quite quickly. He was almost getting dragged, I thought. And, I mean, Mathew’s a fairly big person. But they were sort of pulling him – dragging him, and then it looked like they just let him go and one fellow fell on top of him. That was at the top of the steps.”8 The account of the incident by Adrian O’Dea [25] Mr O’Dea is a security guard at the Queens Hotel at Gladstone and has been in that position for six years. He was working at the front door of the hotel on the night in question controlling people going in and out. He gave evidence that he had a good view from the front door of the hotel all the way through to the back bar. His evidence was that Shaan Ioane was the security guard who removed the plaintiff that night. [26] He states that he heard the call over the radio for the plaintiff to be escorted off the premises but he stayed at the front door. He stated that he did however look into the hotel and he saw Ioane bringing the plaintiff through the hotel. Initially, he states that he saw him walking behind the plaintiff without touching him but that about 5 Transcript 1-98 ll 45-46 6 Transcript 1-98 ll 46 – 1-99 l 4 7 Transcript 1-99 ll 30-32 8 Transcript 1-100 ll 17-20 -- 9 of 25 -- 10 half way through the hotel the male being evicted turned around. He stated “it was like he lunged towards Shaan”, and that they then had “a bit of a wrestle until Shaan could sort of restrain him a bit”.9 He stated he restrained him by putting his right arm over the plaintiff’s right shoulder. He said it was more like a bear hug than a headlock and that Shaan seemed to have the plaintiff under control when they walked towards the front door. The man was resisting as he was thrashing about and he could hear the male swearing abuse. He stated that towards the top of the stairs he appeared to try and shake Shaan off “and that’s when they came crashing down. It’s only two stairs, but it’s concrete on the bottom, which is hard”.10 He stated that the plaintiff continued swearing and ranting as they fell down the steps. [27] In cross-examination Mr O'Dea accepted that he had provided a statement to the hotel insurers on 26 May 2011 in which he stated that the plaintiff seemed fine when he arrived at the hotel and did not give the impression he was affected by alcohol. He also indicated that in that statement he stated that he had remained at the front entrance of the hotel and had not gone inside the hotel that evening and accordingly had not seen the plaintiff when inside. In that statement he also referred back to the statement he provided to police at the time of the incident in 2009, some two years earlier. [28] When the footage of the eviction which was captured by the Gladstone City Council camera was played, Mr O'Dea accepted that the footage showed him facing towards people in the street at the time the group fell down the stairs and that he seemed to have spun as they came past him. It was clear that he was not looking into the hotel immediately prior to the group coming down the stairs but rather he was looking out into the street. Counsel agreed that a period of 30 seconds had transpired between the time at which he last looked into the hotel and the time at which the group came down the stairs. [29] In terms of security holds he had learned in his security course, he gave the following response to questions from Mr Morton: “Now, I want to ask you about some practical experience. We’ve heard some evidence about something called the number-1-come- along hold, holding someone’s wrist in a - - -?---Yep. - - - fashion. Have you heard about that?---Yep. That you - - - Been taught to use it?---Yeah. You get taught in your – your security course - - - Yep?--- - - - how to - - - And do – is it always possible to apply that to people who you’re going to evict?---No. It’s not always possible. What sort of things make it difficult?---Them resisting - - - 9 Transcript 2-41 ll 35-38 10 Transcript 2-32 l 34 -- 10 of 25 -- 11 Yep?--- - - - and not wanting you to hurt them or grab them in that hold. Yeah. Do people sometimes resist having that applied to them?---Yes. Nearly every one of them. Yeah. All right. What about when they’re trying to fight with you: can you apply that hold?---It’s – I’d say it’s impossible.11 The CCTV from the Gladstone City Council [30] The footage from the Gladstone City Council security cameras in the street outside the hotel covers a period of about 30 seconds. The security guard Adrian O’Dea can be seen on the footpath outside the hotel checking people entering. Approximately 30 seconds before the fall down the steps he is observed to turn and look into the hotel and then to turn back and face the street and to turn his attention to patrons wishing to enter the hotel. It is clear from the footage that he is not observing the group as they get to the top of the steps of the hotel but rather his attention is drawn to them as they begin to tumble down the steps. I am however satisfied that the footage indicates that he did have a good look into the hotel immediately prior to the eviction. The account of the incident by Warren Holland [31] Warren Holland was the manager of the Queens Hotel at the time in question and made a statement to police in the early hours of 9 May 2009. In his evidence he indicated that he is currently the manager of a hotel in Brisbane and has been involved in hotels for 29 years. Despite the fact he gave the statement he stated that he does not now have any specific recollection of an incident which occurred over five years ago. Mr Holland gave evidence that he employed a number of security staff on the evening in question because they would have several hundred people through the doors in an evening. He stated that hotel businesses are only successful if they are “clean and tidy and safe” and whilst there is always a risk of a verbal or physical altercation given the consumption of alcohol, he considered that hotels are well aware of the risk and in his view “take great duty of care”. [32] He confirmed the contents of his 2009 statement in which he stated that at the time of the incident he had positioned himself at the bottom of the stairs at the front entrance of the hotel. He said he had a clear vision through the bar area to the nightclub and saw the plaintiff being removed with hotel security walking behind him and the plaintiff walking towards the front door with a beer in his hand. He then saw the plaintiff come to a halt and turn towards the security guard, who had one hand on the back of the plaintiff and was gesturing forward with the other clearly indicating to the plaintiff he was to walk forward. [33] Mr Holland’s statement indicated that Mr Carlyon then took another couple of steps forward and came to a halt again, then abruptly turned and made a forward gesture towards the security guard. In his statement he indicated that it looked ‘aggressive’ and at that point the plaintiff was immediately restrained from behind by a person 11 Transcript 2-43 ll 19-40 -- 11 of 25 -- 12 and that the security guard had him around the shoulders and neck. They then walked very quickly towards the front door. The statement continued: “As they got to the front door the patron kicked out and tried to escape from the restraint. He did this just as they came through the two glass doors. As they went forward their feet came entangled and Ioane and the patron rolled to the floor.” [34] He stated that in his view they locked up feet as they came down the stairs. The injuries [35] The evidence of Dr Cook is contained in two reports dated 21 December 2010 and 6 December 2013, as well as a note of a telephone conference between Dr Cook and counsel for the plaintiff dated 4 October 2014. Dr Cook indicated that Mr Carlyon sustained the following injuries as a result of the incident which occurred at the Queens Hotel on 9 May 2009:  A severe longitudinal fracture of the distal left femur displacing the whole of the lateral femoral condyle laterally and upwards with mild comminution treated with open reduction and internal fixation.  He also stated that an X ray conducted on 14 September 2012 of the left knee joint indicates the fracture of the distal left femur was soundly united, but was noted to have five large screws inserted from the lateral side of the distal femur and condyle and that there was some soft tissue calcification. [36] Dr Cook’s Report indicated that Mr Carlyon continues to have aches in the front and outside part of his left knee and he estimates that he still does not have more than 30 per cent of the movement in his left knee joint under load. He also stated that Mr Carlyon has problems with steps or stairs and that whilst he can go up forwards without any problems, when he is coming down stairs he cannot control the lowering of his trunk or body down to the next step with all his weight on the left leg and he tends to lose control of the left knee and leg. Dr Cook indicated that Mr Carlyon has to undergo pre-employment medicals and that whilst he has passed to date he may not be able to pass future pre-employment medicals. [37] Dr Cook stated that examination revealed no detectable limp when walking on a flat surface and that he appeared to have his weight distributed evenly on both his legs. Dr Cook also noted that whilst he was able to go up forwards normally, when coming down he did appear to drop the last 50 to 60 millimetres onto his right foot on the step below. He stated that there is muscle wasting of the left thigh in the order of 1.8 centimetres shorter circumference than the right, the left patella was fully mobile in all directions and there was no detectable effusion in the left knee joint. He continued: “The fracture of the distal left femur has progressed to sound bony union and that the left knee joint appears to be in tact with no loss of joint space and no detectable degenerative changes of osteoarthritis. These films however show that the five fixation screws that were used to hold the reduced fracture in position remain in situ and there is a small amount of soft tissue calcification noted in this region.” -- 12 of 25 -- 13 [38] Dr Cook recommended in his 2010 Report that Mr Carlyon undergo an Arthroscopy of his left knee: “...to ensure that the compartments have “intact articular cartilage and that there is no injury or damage to this aspect of the joint but then needs to combined with the removal of the five screws and excision of as much as possible scar tissue in the region combined with a lateral release of the lateral retinaculum to allow the patella to sit more normally in the intercondylar groove of the distal femur.” [39] He considered the cost of this surgery could be in the region of $10,000 to $12,000 in total for all medical and hospital fees and charges and that there would be a period of total incapacity of some four to six weeks. After that he stated he could return to light duties and then progress to normal duties. In his 2013 Report Dr Cook referred again to the need for such surgery and to the need to remove the screws and scar tissue as he considered that such a procedure would reduce if not remove completely the crepitus and associated pain on the lateral aspect in the previous operation area. It would seem that a further cost of $5,000 to $6,000 would be expended. [40] In terms of impairment, Dr Cook considered that the muscle wasting of the left thigh, using the American Medical Association Guide to the Evaluation of Permanent Impairment, 5th edition, would give an eight per cent level of permanent partial impairment, taken on the left lower limb as a whole, which would convert to a three per cent whole of person impairment. He also considered that the 24 centimetre healed scar would also amount to a three per cent whole of person impairment. He stated that using the combined values chart, the three per cent whole of person for the muscle wastage when added to the three per cent whole of person of the healed surgical scar is a total of six per cent whole of person impairment. [41] The note of the telephone conference with Dr Cook and the barrister for the plaintiff indicated that Dr Cook was asked to consider the report of another orthopaedic surgeon Dr Peter Hewitt12 dated 14 September 2012. Dr Cook noted that Dr Hewitt also considered that there was a whole of person impairment of six per cent. Dr Cook indicated that Dr Hewitt also recommended a total knee replacement at some point in the future, whereas he would recommend the removal of the screws as well as an arthroscopy which would cost between $10,000 and $12,000, in addition to the cost of the surgery to remove the screws. [42] Dr Cook also indicated that if Mr Carlyon’s current employment required him to walk up and down up to 10 flights of stairs then that activity would hasten the rate of progression of the degenerative changes in his left knee and that a left knee replacement would be more likely to be required. Dr Cook therefore recommended that Mr Carlyon look for lighter work where he could avoid stairs or squatting. Findings of Fact in relation to the incident [43] Having considered all of those statements in relation to Mr Carlyon’s removal on 9 May 2009, I am satisfied that the best account of the incident, and in my view the most reliable, comes from the notes made by Senior Constable Schultz on 9 and 16 12 MFI “A” -- 13 of 25 -- 14 May 2009. It is clear that she was able to view the CCTV tapes on a number of occasions. She obviously had to consider the tapes for the purpose of making file notes on 9 May and 16 May 2009 of what she saw on those tapes and in my view she would have looked at them very carefully for that purpose. In particular her notes indicate that she viewed the tapes in order to make a decision as to whether to prosecute the security guard. [44] I consider that Senior Constable Schultz would have approached the question of possible prosecution very seriously and therefore viewed the tapes very carefully. It is also clear that Senior Constable Schultz played the tapes a number of times when Ms Esdale the solicitor attended. It is clear from Ms Esdale’s file note that she spent some 20 minutes with Senior Constable Schultz viewing and discussing the tapes in question. It is also clear that Senior Constable Schultz also showed the tapes to Mr Carlyon and his mother a number of times when they attended. She also used the tapes to explain to them the decision she had taken not to proceed further with a prosecution. I consider that she would have viewed the tapes on more occasions than anyone else and with great care. She also spoke to some of the witnesses or viewed their statements. [45] Furthermore Senior Constable Schultz was very careful to be accurate in the evidence she gave in this proceeding and I am satisfied that she took the same approach in relation to the file notes she made of the recordings she viewed. Ultimately she was not satisfied any offence had occurred. [46] In my view it is relevant that she considers that she saw the plaintiff slam his glass down and that he is spoken to and directed out of the venue. I am satisfied on the basis of that evidence that there was a good reason for him being asked to leave the licensed premises. It is clear that at some point as he is being directed out the Constable reaches the conclusion that Mr Carlyon “resists” and is redirected. It would appear from her notes that the footage reveals that he is redirected at least four times and then there is a point after that where Mr Carlyon is spun around and placed in a headlock. Given the patience that Ioane was exhibiting in removing Mr Carlyon up to that point the inference which is available is that something happened to cause him to place Mr Carlyon in a headlock. In my view the most reasonable inference available on the evidence is that Mr Carlyon was resisting being removed. [47] Mr Carlyon argued however that he was dragged to the front door and essentially thrown down the steps. I do not consider that Mr Carlyon has a good memory of the incident given he had consumed a large amount of alcohol, the fact this occurred five years ago and his acceptance that his recollection of the incident at the time the videos were played was different to that portrayed on the videos. I consider that given those factors his subsequent recollections cannot be considered to be reliable and must be to some extent a reconstruction. I do not consider that there is any independent evidence that supports his contention. Mr O’Dea and Mr Holland gave evidence to the contrary. Furthermore Mr Carlyon’s contention is simply not supported by the decision not to prosecute. That decision is obviously an entirely different issue to the question I must decide, but I have taken into account the methodology which was adopted by Senior Constable Schultz and the analysis of the question which confronted her. . [48] Whilst Mr Holland has no current memory of the incident, it is clear that in his contemporaneous statement he considers that the group tumbled down the steps as -- 14 of 25 -- 15 does Mr O’Dea. I consider that Mr Holland was in a good position to observe the fall down the steps. I also consider that Mr O’Dea would have seen certain aspects of the initial removal as he looked into the hotel, but not the commencement of the fall down the steps, given he had clearly turned around at that stage. It was his view however that the group was falling as they came past him and not that Mr Carlyon was thrown or dragged. There is also evidence that Mr Carlyon was trying to shake off those who were restraining him. Senior Constable Schultz’s clear evidence was that she considered he was resisting and that he appeared “to throw his legs out”. It is also clear that the video footage shows Mr Carlyon’s wrist being released by the person holding his hands behind him. There is a real likelihood in my view that this occurred as Mr Carlyon was trying to shake off the guards and that he was propelling himself forwards. [49] I also note that an examination of all of the contemporaneous witness statements or notes of the videos refer to Mr Carlyon either tumbling, falling, stumbling, tripping or crashing, rather than being “thrown”. Mr Carlyon’s own evidence was that when they reached the top of the stairs “it all felt as a fluid motion” 13 which would not seem to be consistent with being thrown or dragged. [50] Furthermore, the footage from the Gladstone City Council CCTV clearly shows both Mr Carlyon and Mr Ioane falling down the front stairs with Mr Ioane ending up on top of Mr Carlyon. It would seem to me to be illogical for Ioane to throw himself and Mr Carlyon down the stairs which is basically what is alleged. In my view, all of the evidence indicates a stumble or trip down the stairs, most probably due to Mr Carlyon’s resistance to being removed and the likelihood that it was him who was providing the forward momentum. [51] Accordingly, the plaintiff has not established, on the balance of probabilities, that he was thrown, dragged or pushed down the stairs of the Queens Hotel by any deliberate action by any of the staff of the Queens Hotel. The evidence of John William Pettit [52] Security expert John Pettit gave evidence. He was obviously not present on the night in question but he provided two reports for the Court, one dated 30 August 2014 and the other dated 19 October 2014. Those reports set out Mr Pettit’s opinions and his analysis of the procedure used to remove Mr Carlyon from the Queens Hotel. He has a number of tertiary qualifications in security. He has a Masters of Criminology from Bond University obtained in 2011 and a Masters in Occupational Health & Safety from Edith Cowan University in 2013. It would seem clear that Mr Pettit has run a security consulting business for 25 years. He also stated he has conducted a number of investigations into licensed premises particularly in relation to their security operations. [53] The basic thrust of Mr Pettit’s evidence was that in evicting the plaintiff in the way that they did, the defendants did not adopt a safe method of operating. He stated that there were other preferable holds that could have been used, in particular the “come- along hold”. He stated that the wishbone or Y bone method of restraint which was used in this case “is not only risky for the evictee but also the persons performing the eviction as well, as the evictee is inadequately restrained or controlled”. 13 T 1-31 -- 15 of 25 -- 16 [54] Mr Pettit’s evidence however was that he had never worked as a security guard. I consider the following evidence to be particularly relevant. “Mr Pettit, the ability to restrain someone, effectively, depends in part on the resistance they are offering, does it not?---Correct. So when you say on the basis of your experience, well, look, these people should’ve applied a certain hold, the ability of someone – police officer – whatever – crowd controller to do that depends upon cooperation or lack thereof of the subject at the time the hold is sought to be applied, doesn’t it?---That could be right. Correct. yes. So, sometimes, depending upon the particular circumstances, it may not be possible to do those things?---That’s correct. It all depends upon the circumstances?--- Yes.”14 [55] It is clear therefore that Mr Pettit has no practical experience in dealing with the actual removal of clients from a hotel and that the basis of his opinion as to whether a certain hold should have been used is clearly based on the level of cooperation of the client. The evidence of the security guard Adrian O’Dea was that if a person was resisting then the hold he recommended may not be possible. I have previously indicated that I accept the evidence that Mr Carlyon was resisting his removal. Findings of Fact I am satisfied on the basis of the evidence before me of the following matters: (i) That Mr Carlyon had consumed at least 21 drinks at the point he was asked to leave the Queens Hotel. (ii) Mr Carlyon was asked to leave as he was considered by the bar attendant to have slammed his glass down on the bar. (iii) Mr Carlyon clearly refused to leave at that point and the bar attendant requested the assistance of security. (iv) Mr Carlyon was spoken to by a security officer and asked to leave. (v) Mr Carlyon was directed to the front door by Mr Ioane who escorts him. (vi) Mr Carlyon walked towards the front door but deviated to speak to a group of people. (vii) Mr Carlyon was re directed by Mr Ioane at least 4 times and subsequently “resists” such redirection and is placed in a headlock by Mr Ioane. (viii) Mr Carlyon was taken to the steps at the front door of the hotel by a method which involved Mr Ioane holding Mr Carlyon around the neck and shoulders in a headlock with at least one employee holding his arms behind his back. (ix) Mr Carlyon kicks out, swears and continues to resist his removal. (x) At the top of the steps near the front door the employee holding Mr Carlyon’s arms behind his back releases Mr 14 Transcript 2-36 ll 9-24 -- 16 of 25 -- 17 Carlyon’s arms due at least in part to Mr Carlyon’s resistance. (xi) Mr Ioane and Mr Carlyon both fall down the steps together due to a trip, fall or stumble. (xii) Mr Ioane lands on top of Mr Carlyon who sustains a severe longitudinal fracture of the distal left femur. (xiii) There is no evidence to indicate that Mr Carlyon was thrown, propelled or pushed down the stairs due to force applied solely by the staff. The plaintiff’s claim [56] The plaintiff’s claim against the defendant is pleaded on the basis that his injury was caused by the assaults on the plaintiff by the defendant’s bouncers or management, all of whom were acting in the course of their employment for which the defendant is vicariously liable. In the alternative the plaintiff’s claim is pleaded on the basis the injuries were caused by the negligence of the employees, for which the defendants are vicariously liable, by failing to act as competent security officers and by attacking and harming the plaintiff by pushing or throwing him down the stairs. Alternatively it is claimed that the defendants are liable in negligence by failing to put in place a reasonably safe security system, by failing to train its bouncers and put in place operating procedures as to how bouncers should perform their duties. The incoherency argument [57] Before I can turn to a consideration of those issues, the defendant has raised a preliminary legal argument which I need to determine at the outset. Counsel for the defendant argued in closing submissions that the defendant could not owe a duty of care to the plaintiff because any such duty would be incoherent with the defendant’s rights and responsibilities which are outlined in the Liquor Act 1992 (Qld) (“Liquor Act”). In particular it was argued that a duty of care to the plaintiff would be inconsistent with the defendant’s right pursuant to s 165(3) of the Liquor Act for authorised officers to use necessary and reasonable force to remove a person from the premises if the requirements in s 165(1) and (2) are met. [58] The relevant sections are in the following terms: “165 Removal of persons from premises (1) An authorised person for premises to which a licence or permit relates may require a person to leave the premises if— (a) the person is unduly intoxicated; or (b) the person is disorderly; or (c) the person is creating a disturbance; or (d) the person is a minor, other than an exempt minor; or (e) the person has entered the premises despite being refused entry under section 165A; or (f) the person refuses to state particulars, or to produce evidence, as to age when required to do so under section 167. -- 17 of 25 -- 18 (2) A person must immediately leave premises when required to do so under subsection (1). (3) If a person fails to leave when required under subsection (1), the authorised person may use necessary and reasonable force to remove the person.” [59] In support of this proposition, the defendant relied on the decision of the High Court in Sullivan v Moody15 in which the High Court found that the imposition of a common law duty of care does not exist where its imposition may give rise to an incoherency in the law and conflicts with a person’s other rights and obligations. Further reliance was placed on the High Court’s decisions in Cole v South Tweed Heads Rugby League Football Club Ltd16 and C.A.L No 14 Pty Ltd v Motor Accidents Insurance Board17 where the High Court considered the existence of a duty of care owed by a publican to its patrons. In particular, the defendant relied on the decision of Gummow, Heydon and Crennan JJ in C.A.L and their Honours’ discussion of the incoherence in that case in finding a duty of care to stop the deceased riding his motorcycle home in an inebriated state and the torts of assault and battery. Reference was also made to the principle of coherence in cases with other factual scenarios including Hogno & Anor v Racing Queensland Ltd & Ors.18 [60] Having considered those authorities I do not consider there is any factual basis in this case to support an argument that the defendant does not owe a duty of care because such a duty of care would be incoherent with its other rights and obligations. In my view the factual situation in this case quite different to the authorities cited in support of that argument. Unlike C.A.L there is no incoherence between the duty of care owed to the plaintiff not to injure him when removing him from the premises and the duty not to commit an assault against the plaintiff. As the plaintiff submitted, the High Court found in Williams v Milotin19 that a plaintiff is able to sue both in trespass and in negligence arising from one course of conduct. [61] Further, I cannot see that there is an incoherency between the rights and duties of the defendant as outlined in the Liquor Act and a duty of care owed to the plaintiff. The Act allows the removal of patrons using reasonable and necessary force. Under the common law, the defendant also has a right to remove patrons.20 These rights, in and of themselves, do not create an incoherence with a licensee’s duty of care to patrons to ensure that they are not injured on their removal. [62] In addition, the Act does not exclude the right of the plaintiff to seek a common law remedy, nor does it outline any statutory penalty for a breach of s 165(3) of the Liquor Act where the force used was not reasonable or necessary. Whether s 165 allowed for the forcible removal of the plaintiff in the case could go towards the consideration of whether or not there was a breach of any duty owed to the plaintiff and the extent to which the plaintiff contributed to his injuries through intoxication and by resisting removal. 15 (2001) 207 CLR 562. 16 (2004) 217 CLR 469. 17 (2009) 239 CLR 390. 18 [2013] QCA 139. 19 (1957) 97 CLR 465 20 Horkin v North Melbourne Football Club Social Club [1983] 1 VR 153 -- 18 of 25 -- 19 [63] In my view there is no incoherency between a common law duty of care and the rights and duties of the defendant under the Liquor Act. Furthermore the recent Court of Appeal decision in Lamble v Howl at the Moon Broadbeach Pty Ltd21 and Helman J’s decision in Ferguson v Calnan & Anor22 both related to the removal of patrons under similar provision of the Liquor Act and they both proceeded without any issues of incoherency being considered. I am therefore satisfied that the defendant’s argument of incoherency must fail. Did the defendant’s employees assault the plaintiff? [64] Turning then to the plaintiff’s statement of claim which is argued on essentially the three bases that I have outlined. The first basis is that the defendant is vicariously liable essentially in Trespass for the actual and intentional assault by its employees upon the body of the plaintiff. As was the case in Ferguson the plaintiff’s case as pleaded is one of assault but the gravamen of the claim is in fact the ‘striking’. It would seem clear that there has been a deliberate application of force to Mr Carlyon by at least two of the defendant’s employees. Does this constitute an assault for the purposes of the tort of Trespass such that the defendant is vicariously liable? [65] As I have already outlined the provisions of the Liquor Act require that the removal of patrons has to be executed using reasonable and necessary force. I consider that once a striking or touching has been established by the plaintiff then the onus is on the defendant to establish that the force used was reasonable and necessary. [66] Having considered the evidence of all the witnesses, particularly Senior Constable Schultz, I am satisfied that the defendant’s employees had a reasonable basis for asking Mr Carlyon to leave. The bar manager obviously formed the view that Mr Carlyon was being argumentative and aggressive. The plaintiff’s subsequent conduct after being asked to leave was also clearly argumentative in that he refused to accept that there was any basis for his removal and on at least four occasions he persistently failed to comply with reasonable directions to leave. The evidence also indicates that Mr Ioane had touched Mr Carlyon during this period by way of guidance and redirection including patting him on the shoulder and telling him he was “leaving”.23 [67] It is at this point that Mr Carlyon was placed in a grip by Mr Ioane which involved placing his arm around Mr Carlyon’s neck and shoulders whereby on Mr Carlyon’s version he was restricted, bent down and he could not stand up. Was this the application of reasonable and necessary force? [68] There is no doubt that up to that point in time the removal of Mr Carlyon from the hotel by way of words and gestures by Mr Ioane was unsuccessful. How was he to be made to leave? Obviously a different method of removal was required as continued requests to leave accompanied by a directed escort to the door had failed. [69] There is no suggestion by Mr Carlyon that placing him in a headlock was painful or that his breathing was restricted in any way. There is no indication of bruising or any injury whatsoever to his neck or shoulders. I note that the alternative hold recommended by Mr Pettit involves the deliberate application of pain to the wrist of 21 [2013] QSC 244 22 [2002] QSC 342 23 Transcript 1-29- 30 -- 19 of 25 -- 20 a patron to ensure compliance. Compliance by the infliction of pain was not deployed in the circumstances of this case and if that was the alternative to a headlock which did not involve the restriction of the airways, dislocation of the neck or the deliberate infliction of pain then I consider that the use of the headlock here was reasonable in the circumstances where there was a dynamic incident with no real time for reflection and consideration. I also consider that the fact that Mr Carlyon’s arms were held behind him by another staff member would not have been unreasonable in the circumstances which arose. [70] Accordingly I consider on the balance of probabilities that the force used was reasonable and necessary in the circumstances. I am not satisfied therefore that the defendant is vicariously liable to the plaintiff on the basis of an assault. Were the plaintiff’s injuries caused by the negligence of the defendant’s employees? [71] The next basis of the plaintiff’s claim is that the defendant is vicariously liable for the negligence of its employees. Essentially the plaintiff is arguing that the employees were negligent in the way they evicted him and that the employees’ negligence in evicting him in the way that they did caused his injuries. Were the plaintiff’s injuries in fact caused by the defendant’s negligence? As I have indicated I am satisfied that the defendant’s employees used reasonable and necessary force in ensuring that the plaintiff was removed from the premises. That involved placing him in a headlock and restraining his arms behind his back. Those actions did not cause the plaintiff any injury. The plaintiff was injured when he and Mr Ioane fell down the front steps due to a stumble or trip. [72] In my view it is most likely that the fall occurred as Mr Carlyon was resisting being held and was kicking out with his feet causing his feet to become intertwined with Mr Ioane’s feet. That caused them both to stumble. The injury to the plaintiff occurred when Mr Ioane, who was considerably heavier than Mr Carlyon, fell on top of Mr Carlyon as they hit the pavement below the steps. [73] Accordingly I am not satisfied that the plaintiff has established that the stumble, trip or fall was significantly contributed to by the actions of the employees but rather the dominant force was most likely that of the plaintiff. Were the plaintiff’s injuries caused by the defendant’s negligence in failing to provide a safe system and in failing to adequately train its employees? [74] It is clear from Mr O’Dea’s evidence that he had the necessary qualifications to work as a security guard at the Queens Hotel and that he was aware of the requirements of the Liquor Act and the Security Providers Act 1993 (Qld). It was apparent from his evidence however that he was not aware of the Town and Country Pub Groups written House Management Policy. Neither was he given any verbal or documentary instruction by hotel management about what restraints could be used to remove patrons from the Queens Hotel. Mr O’Dea however stated that he was aware of the hotels ‘no hit’ policy and that the use of restraints and holds was only to be used as a last resort. Mr O’Dea also stated that there was no practice in place whereby there was a briefing before each shift. It would seem to me from that evidence that the hotel should have been more proactive in providing instruction to him and other staff about its practices and procedures. -- 20 of 25 -- 21 [75] It is also clear that it was Mr Ioane who was the head of security at the time and not Mr O’Dea. It is also clear that Mr O’Dea was not involved in the assault on Mr Carlyon. Accordingly his knowledge is not necessarily the same as Mr Ioane’s knowledge of the practices and procedures in place at the time. [76] In any event as I have outlined previously, I am not satisfied that the failures which may or may not have existed in the hotel’s security policies in relation to the use of restraints caused or contributed to the fall. In my view, the headlock and arm restraint did not cause the fall or contribute in any significant way to the fall. In my view the most likely cause of the fall was Mr Carlyon’s resistance to being removed. . [77] Accordingly, I am not satisfied that the plaintiff has established on the balance of probabilities that the defendant is in fact liable for the plaintiff’s injuries and I would dismiss the claim. QUANTUM General Damages [1] Despite my conclusion that there should be judgment for the defendant, I am still required to assess the quantum of damages in accordance with the Civil Liability Regulation 2003 (Qld) (Reprint 1A) in relation to the assessment of damages. [2] There is no doubt that Mr Carlyon suffered a significant knee injury. I am satisfied that he has had ongoing pain, discomfort and limitation of movement. It is clear that he does require a knee replacement and probably two during his lifetime but I do not consider that Item 138 or 137 are the appropriate categories given he has been assessed as having a whole person impairment of 6%. Ultimately I agree with the defendant’s submission that overall it can be seen as a serious injury as per Item 139 and that the appropriate ISV is 10. This would give the plaintiff general damages of $11,000. Special damages [3] Special damages in an amount of $10,165.75 have been admitted, which comprises hospital expenses of $7,961.75, and other medical expenses and other expenses of $2,204. It is not disputed that in the period since his return to work after the injury he has not had any time off work due to this injury and he has not consulted a doctor specifically because of this injury. Past Wages [4] Mr Carlyon claims the amount of $42,060.00 in past wages. That is the difference between the amount that he claims that he would have earned in the weeks between 9 May 2009 and 28 September 2009 had he continued at the rate he was being paid at the time. [5] It is necessary however to consider Mr Carlyon’s annual earnings since 2009 in order to assess the appropriate figure for lost wages. The annual earnings are as follows. -- 21 of 25 -- 22 Year Nett/Year Nett/Week 2006 $51,535.90 $1,106.00 2007 $59,884.00 $1,152.00 2008 $60,719.00 $1,168.00 2009 $51,360.00 (over 45 weeks) $1,141.00 2010 $64,711.00 $1,659.00 2011 $94,804.00 $1,823.15 2012 $87,984.00 $1,692.00 2013 $90,052.00 $1,732.00 2014 $111,654.00 $2,147.00 [6] Immediately before the accident the plaintiff was earning $2,103.00 net per week. The plaintiff submits that he would have continued to earn this amount over the next 20 weeks because he would have been recruited as a mechanical fitter on the Carborough Downs Mine project. That may well have been the case but the usual pattern of employment for the plaintiff was to have intervals or breaks between his periods of employment. It would have been unusual for him to have gone straight to another contract. I consider that it is likely he would have had some time off between jobs and therefore consider that he should be compensated for 17 weeks rather than the 20 claimed. What weekly figure should be used to calculate the lost earnings in those 17 weeks? [7] The defendant submits that the plaintiff’s average weekly wage in the year that he was injured was in fact $1,149.94 and that the loss of past wages should be calculated using the plaintiff’s average wage for the year giving a total of $23,000 for the 20 weeks. [8] The evidence of Mr Smith was that had the plaintiff not been injured he would have been employed for substantially more than the yearly average of $1,149.94. There is no evidence before me however that he would in fact have been paid in excess of $2,000 per week in late 2009 and such a conclusion would be speculative in my view and not a fair way to assess the plaintiff’s past loss of wages. Having considered the average weekly wages for the years before the accident and the years after I consider $1,500 per week is the appropriate figure for late 2009. [9] The total figure for loss of past wages for 17 weeks at $1,500 is therefore $25,500. Interest on Past Wages I will allow interest on past wages at 1.9% for 5 years which is $2,422.50. Past Superannuation [10] Past superannuation loss calculated on $25,500 at 9% is $2,295. Future Economic Loss -- 22 of 25 -- 23 [11] Mr Carlyon is currently 34 years of age. As the figures in paragraph [5] indicate, his wages have increased since the accident and he is currently earning in excess of $111,000 per year. I accept that after he returned to work he worked long hours. It is argued that he cannot sustain this into the future given the impact the long hours and heavy work has had on his knee. It is argued that he may only be able to be employed in a workshop role as a mechanical fitter in the future which would mean a loss of $1,074 net per week for 33 years to age 67, with a 5% discount factor and 10% for contingencies this is a figure of $827,409.60. [12] Alternatively, it is argued that the plaintiff’s earning capacity will be at least 50% destroyed with a loss of approximately $1,000 per week for 27 years delayed by 6 years which is $585,000 (33 years 5% discount factor 856 minus 6 years 5% discount factor 271 equals 585 multiplied by $1,000 per week). [13] The defendant however submits a global amount of $50,000 would be appropriate because he has had no time off work to date and he takes no medication for his pain. Furthermore, it is argued that he has significant back degeneration which will have a significant effect on his working life as he is already receiving treatment and experiencing pain in relation to that condition. [14] It is significant in my view that Mr Carlyon returned to work after 20 weeks and resumed normal duties. He has had no time off work in the five years since the accident, he has not received any ongoing treatment and he does not take analgesics on a regular basis. Dr Cook indicates that Mr Carlyon requires surgery for the removal of the screws and scar tissue on the lateral aspect of his distal left femur and lateral aspect of his left knee joint and that this would reduce significantly if not completely overcome the crepitus and associated pain. [15] It is also evident that Dr Cook would appear to agree with Dr Hewitt’s assessment that a total knee replacement will probably be required in the future if he continues the heavy work he is currently undertaking. [16] It would seem to me that Mr Carlyon will continue to undertake his current duties until he is forced to have a knee replacement and in the meantime he can expect to earn the high wages he is currently earning. It is likely then in the coming years and well before the age of 65 he will have a knee replacement which would require some time off work and possible disruption in his employment. In broad terms he may well lose $60,000 if he is affected for six months in the year he has the surgery. After recovery from the surgery it would seem to me that he would be able to return to his normal occupation. He may then require another knee replacement probably fifteen years after that whilst in his mid sixties before he retires. [17] Accordingly it would seem to me that after the first knee replacement he will return to his full earning capacity after six months. However by the time he is in his late fifties or early sixties he may well be seeking lighter work due to a combination of his back degeneration and his need for another knee replacement. It is difficult therefore to accurately estimate his future economic loss due solely to his knee injury. Furthermore it would seem to me that once he recovers from those knee replacements his earning capacity would return fully. I will allow a global figure of $200,000 for future loss of earning capacity. This figure of $200,000 therefore is based solely on the loss to him during the period of the two operations and his -- 23 of 25 -- 24 subsequent recovery. This figure then needs to be discounted by 15% for future contingencies which is $170,000. Future Superannuation [18] I would allow loss of future superannuation benefits at 11% of $170,000, which is $18,700. Future Special Damages (Medical Expenses). [19] I consider that Mr Carlyon will continue to work in a heavy industry in both the short and long term and that two knee replacements will be required to allow him to do so. I accept that the knee replacement costing is currently $80,000 for both operations. [20] I agree with the submission from counsel for the plaintiff that if the first future knee replacement costing $30,000 is delayed by 6 years, using the 5% discount tables of .74, a sum of $22,200 should be allowed. Knee replacements last approximately 15 years. Therefore, using the 5% deferred tables’ rate for 21 years of 0.359 (not 0.39 as submitted) on $50,000, a further sum of $17,950 (not $19,500) should be allowed. [21] It is submitted for the plaintiff that it is unlikely that if the plaintiff continues as he wishes in the industry for a further six years that the future medical expenses could be under $40,000 and taking into account all other treatments, pharmaceuticals, surgery, travel, and costs a reasonable sum would be $50,000. [22] Counsel for the defendant submits that there is no evidence about when any future surgery is likely, but that some allowance should be made. It would seem to me that Dr Cook has made it clear that two operations are really required in the short term namely the surgery to remove the screws and scar tissue which will cost about $6,000 and the arthroscopy which will be about $12,000. I will allow $18,000 as a total figure for these operations discounted at 15% for contingencies which is $15,300. [23] Counsel for the defendant has also submitted that allowance should be made for future medications, medical attendances, physiotherapy and other treatments, together with travel costs which would total $5,600. Given the plaintiff’s reluctance to date to use medication, see a doctor or undertake other treatments I will allow a global minimal figure of $1,600. [24] Taking the above into account, I will allow the sum of $57,050 ($22,200 + $17,950 + $15,300 + $1,600) for future special damages. -- 24 of 25 -- 25 [25] I give judgment for the defendant. [26] I will hear from counsel as to orders as to costs. General Damages $11,000.00 Special Damages $10,165.75 Loss of past wages ($1,500 x 17 weeks) $25,500.00 Interest on past wages ($25,500 x 1.9% x 5 years) $2,422.50 Loss of past Superannuation ($25,500 x 9%) $2,295.00 Future loss of Wages $170,000.00 Future loss of Superannuation ($170,000 x 11%) $18,700.00 Future special damages (medical expenses, medications, treatments, travel) $22,200.00 $17,950.00 $15,300.00 $1,600.00 $57,050.00 TOTAL $297,133.25 -- 25 of 25 --