Brighten v Traino

1. [1]

   BASTEN JA: On the evening of Anzac Day 2014 (25 April 2014) the appellant, Erin Brighten, was drinking at a licensed venue trading as the Sting Bar and Restaurant at Kingsway, Cronulla. She had arrived at approximately 11pm in company with a friend, Luke Provan.

2. [2]

   The licensee, Pasquali John Traino, was drinking at the bar with a friend, Brett William Richardson. Shortly before midnight, Mr Traino formed the view that Mr Provan was intoxicated and becoming troublesome; he asked him to leave and when Provan became aggressive, sought to eject him from the premises. He undertook that task himself, with the assistance of Mr Richardson. As they reached the pavement Mr Provan was struggling and was being restrained by security personnel.

3. [3]

   A number of patrons from the bar followed the three men onto the street. Ms Brighten was amongst those who went out onto the street. At one stage it appeared that Ms Brighten was in the process of leading Mr Provan away. However, something was said which provoked Mr Provan, who turned back towards Mr Traino and Mr Richardson. A melee ensued. In the course of the melee, Ms Brighten was struck on the side of her face by Mr Richardson. She was knocked to the ground and suffered a broken jaw.

4. [4]

   Ms Brighten (the plaintiff) brought proceedings for damages against Mr Traino (first defendant), Mr Richardson (third defendant), and the corporate owner of the business, Sting Bar Pty Ltd (second defendant).

5. [5]

   Following a trial in the District Court before Gibbs DCJ, Ms Brighten’s proceedings were dismissed with costs. Orders were entered on 30 May 2018, from which Ms Brighten appealed to this Court.

Issues on appeal

1. [6]

   The first cause of action pleaded by Ms Brighten was in battery against Mr Richardson for the punch to the side of her face which felled her.

2. [7]

   Mr Richardson did not deny the punch (which was clearly captured on CCTV) but pleaded that he acted in self-defence, relying upon s 52 of the Civil Liability Act 2002 (NSW), which identifies circumstances in which a person acting in self-defence incurs no liability, and s 53, which limits the damages available in circumstances where a person is entitled to take action in self-defence, but the response is excessive. The trial judge upheld the defence under s 52 which protected the third defendant from liability.

3. [8]

   Ms Brighten also brought a claim in negligence against Mr Richardson, particulars of which included “failing to properly assess the risk of injury to the plaintiff before punching her”, “overreacting to the gentle contact of the plaintiff” and “carelessly or recklessly striking the plaintiff”. This cause of action was also dismissed. In this Court, Ms Brighten challenged the rejection of her claim in battery, but not in negligence, against Mr Richardson.

4. [9]

   She made separate claims in negligence against Mr Traino and the company. The trial judge rejected those claims and, for reasons set out below, Ms Brighten’s appeal against those findings should not succeed. Similarly a claim that Mr Traino and the company should have been found vicariously liable for the actions of Mr Richardson, initially pursued but abandoned in the course of the appeal, must be dismissed.

5. [10]

   Against the possibility that she was in error in finding for the defendants on the question of liability, the trial judge undertook a contingent assessment of damages. The assessment came to an amount of approximately $68,000, a figure which Ms Brighten challenged as inadequate.

6. [11]

   For the reasons explained below, the judge was wrong to dismiss Ms Brighten’s claim in battery against Mr Richardson. That conclusion makes it necessary to consider the contingent assessment of damages made by the trial judge. On the appeal, Ms Brighten challenged findings of the trial judge adverse to her credibility which she submitted infected the assessment of her injuries. If that challenge were upheld, it would be difficult to avoid remitting the claim against Mr Richardson to the District Court for a reassessment of damages. However, those questions may touch the refusal to award economic loss, but do not affect issues of aggravated and exemplary damages for the battery.

Background to the assault

1. [12]

   There was conflicting evidence as to what happened inside the bar. Mr Traino’s evidence was that Mr Provan had identified three sailors drinking at the bar as “imposters” and had threatened to bash them if he, Traino, did not get them out of the bar. The trial judge accepted Mr Traino’s account and found that Mr Provan was “forcibly ejected from the premises by Mr Traino with the assistance of a contracted security guard, and the third defendant [Mr Richardson].” [1] She held that there were good grounds to remove Mr Provan as he was intoxicated, quarrelsome and threatening to “bash” other patrons, and Mr Traino, and refused to leave when directed. [2]

2. [13]

   The judge concluded: [3]

3. [14]

   The critical events occurred on the footpath outside the premises. Although with a degree of artificiality, the events, which were completed within two minutes, could be viewed in discrete stages. First, immediately following his ejection, Mr Provan was being held by one of the contracted security guards. Mr Richardson was not involved at that stage and Mr Traino had also ceased to be directly involved. However, as the security guard was moving Mr Provan across the footpath towards the roadway, Mr Provan was struggling and both men fell to the ground.

4. [15]

   The second stage involved Mr Provan regaining his feet, whilst still struggling with the security guard and Mr Traino and Mr Richardson who appear also to have sought to reassert control over Mr Provan. At that point, Ms Brighten intervened and told the security guard she would take Mr Provan away. The guard released Mr Provan who started to move away.

5. [16]

   The third and critical stage involved Mr Provan turning back towards the security guards and Mr Traino. Mr Provan said that he was provoked and “saw red”. At that point it appears that Mr Richardson was standing behind Mr Traino. The judge declined to make a finding as to the provocation (if any) which induced Mr Provan to turn back aggressively, but was satisfied that it was not the result of anything Mr Richardson had said. A security guard ran off, apparently to obtain police assistance. The plaintiff moved momentarily to the kerb, apparently looking for a taxi. Mr Provan unleashed some blows towards Mr Traino, following which Mr Richardson returned to the fray, seeking to kick or “sweep” Mr Provan’s legs from under him. This move was unsuccessful and Mr Richardson quickly backed away from Mr Provan.

6. [17]

   A matter of seconds before Mr Richardson commenced to back away, Ms Brighten had turned back towards the scuffle and taken a number of steps forward, which placed her behind Mr Richardson. Viewing the CCTV footage, as Richardson was moving backwards towards her, Ms Brighten put her hands up and held onto the back of Mr Richardson’s shirt. At that point her feet were also moving backwards. It is clear that Mr Richardson sensed hands holding his shirt from behind and turned immediately, swept backwards with his left arm, hitting Ms Brighten across the neck, and, in the same movement turning and striking her with his closed right fist on the side of her jaw. As Ms Brighten fell to the ground, Mr Richardson turned back to the fray with Mr Provan.

(a) legal principles

1. [18]

   As the trial judge expressly, and correctly, held, the punch was deliberate and constituted an intentional act, namely a battery. Having made those findings, the trial judge turned to consider at some length questions relating to the duty of care owed by Mr Traino and the company, before returning to the third defendant’s liability in battery (at p 57). The judge noted the contention on behalf of Ms Brighten that the battery constituted an “intentional tort” within the meaning of s 3B of the Civil Liability Act. She noted, correctly, that s 3B(1)(a) does not refer to any particular cause of action, but rather speaks of the civil liability of a person “in respect of an intentional act that is done by the person within intent to cause injury …”. However, that provision was irrelevant in the present context.

2. [19]

   Section 3B(1)(a) provides one set of circumstances in which provisions of the Civil Liability Act do not apply. The non-applicable provisions are identified as “the whole Act except … Part 7 (Self-defence and recovery by criminals) …”. Part 7, Div 1, includes ss 51-54A and, of direct relevance for present purposes, ss 52 and 53. Further, s 51(3) states that Pt 7 “does not apply to civil liability that is excluded from the operation of this Part by section 3B.” However, because s 3B(1)(a) does not exclude Pt 7 in relation to intentional acts done with intent to cause injury, the exclusion under s 51(3) is not engaged. (Other exclusions in s 3B may apply.) It is clear, therefore, that s 52, excluding civil liability for acts in self-defence, is engaged. As will be seen, if unreasonable self-defence is engaged, and damages are recoverable, Pt 2 of the Act, dealing with the assessment of personal injury damages, will have effect, “despite section 3B(1)(a)”.

3. [20]

   It is convenient to deal first with the defence under by s 52, which provides as follows:

4. [21]

   The first step in construing this provision is to note its progenitor in this jurisdiction, namely Pt 11, Div 3 of the Crimes Act 1900 (NSW). Section 52(2) is an exact replication of s 418(2) of the Crimes Act; s 58(3) is a replication of s 420. [4] Section 52(1) is an amalgam of s 418(1) and s 422 of the Crimes Act, with a significant variation to the latter. Section 418(1) reads:

5. [22]

   Acknowledging the difference between criminal and civil liability, there is no difference between s 418(1) and the protection from liability in the opening words of s 52(1) appearing before the condition of engagement commencing “but only if”. The words of qualification may be compared with s 422 of the Crimes Act which provides:

6. [23]

   The criminal defence in Pt 11, Div 3 may operate in circumstances where the defendant is responding to conduct which is “lawful”; s 52(1) requires that the conduct to which a defendant is responding be “unlawful”. This departure from the precedent in the Crimes Act is important for the application of the subjective test in s 52(2). Thus, for the purposes of s 418(2), the subjective test may be satisfied if, for example, the defendant perceives the challenge to his property or person as unlawful, even if it is in fact lawful. The objective test (conduct that is a “reasonable response”) may thus be satisfied even where the conduct responded to was lawful, if the defendant perceived it otherwise. However, it is less clear how s 52(1)(a) fits with s 52(2). In its terms, s 52(1) imposes an objective criterion which is a necessary condition for the application of the section. In other words, if the conduct of the plaintiff were lawful, it would not matter how the defendant perceived it, and it would not matter whether the responsive conduct was believed by the defendant to be necessary. In such a case, no question of reasonable response would arise. That would mean that s 53 would have no operation.

7. [24]

   There is authority in this Court as to the meaning of “unlawful” in s 52(1). In State of New South Wales v McMaster [5] the Court held that “unlawful” is “not confined to criminal conduct” and therefore includes “tortious” conduct. The reasoning in favour of that proposition relied upon (i) the ordinary meaning of the word “unlawful” as defined in the Oxford English Dictionary; [6] (ii) the reference to unlawful conduct in pars (b) and (c), which may involve either a civil wrong or a crime; [7] (iii) the reference to “criminal” trespass in par (2)(d), indicating an intention to specify criminal conduct if that alone were intended, [8] and (iv) the use in s 54 of “offence” in contradistinction to the use of “unlawful” in s 52, with the same effect as the references to “criminal trespass”.

8. [25]

   This reasoning based on the imprecision of the dictionary definition is not persuasive; the specific statutory context is a better guide to meaning. It is also significant that the use of the word “unlawful” in s 52(2) derives from the equivalent provision in the Crimes Act. In both provisions it is descriptive of the responder’s state of mind, and in the Crimes Act it does not matter if the conduct responded to was in fact lawful. Further, s 54, as its title indicates (“Criminals not to be awarded damages”) has quite a different function. The critical step in determining the meaning of “unlawful” in s 52(1) is to identify its function in the statutory scheme.

9. [26]

   Although the conclusion in McMaster may be correct, the analysis was obiter, because the actions of the plaintiff had already been found to amount to criminal conduct, namely an assault. It may be preferable to leave open a final consideration of the scope of the term “unlawful” in s 52(1)(a) for a case in which the conduct in question is clearly not criminal, and it is therefore necessary to have regard to the true significance of the conduct being purely tortious. Further, the finding in McMaster that “unlawful” is not “confined to criminal conduct” leaves open the possibility of non-tortious non-criminal conduct satisfying the test, an issue which did not arise in McMaster and does not arise here.

10. [27]

    A question was also raised and tentatively addressed in McMaster as to the interaction between s 52 and the common law test for self-defence. The Court indicated that “[g]iven the provisions of s 3A(1), s 52 does not purport to impinge on the common law and the common law is not to be construed by reference to s 52.” [9] This opinion has, potentially, wider ramifications than may have been recognised in McMaster; there are many provisions in the Civil Liability Act which arguably accord lesser protection from civil liability than that provided by another Act or law, so as to render them otiose on that construction of s 3A. That is not a reading of s 3A(1) which attracts immediate acceptance. [10] Nor does it explain the operation of the phrase “if and only if” in s 52(1), which would appear to exclude an alternative basis for finding immunity from liability based on self-defence.

11. [28]

    Perhaps because limited attention was given to the language and operation of s 52 in the trial court, there is some doubt as to whether the judge addressed herself to the correct question in asking whether Ms Brighten’s conduct at the time she was struck was “unlawful”. For example, in dealing with the legal consequence of the battery, the judge stated: [11]

12. [29]

    This passage suggests a misunderstanding as to the operation of the relevant provisions of the Civil Liability Act: as explained above, s 52 was not excluded by s 3B(1)(a), even where that provision applied to a battery.

(b) application to facts

1. [30]

   The trial judge assessed the punch to Ms Brighten’s face in the following terms: [12]

2. [31]

   This analysis concerned the second in which Mr Richardson ceased moving back and appears to prop before moving forward in order to launch himself into the fray again, as he did moments later. At that stage the plaintiff held on to his shirt, apparently with sufficient determination to lead Mr Richardson to feel resistance and strike out with his left elbow and then turn and hit her in the face with a closed fist. Up until the second in which Mr Richardson ceased to go backward and found himself impeded in moving forward there was no dispute as to the correctness of the plaintiff’s description, although not referred to by the trial judge in her judgment. The following exchange took place in cross-examination of the plaintiff by counsel for Mr Richardson: [14]

3. [32]

   None of this was in issue; the thrust of Mr Richardson’s case was in the following exchange: [15]

4. [33]

   The CCTV footage does show the plaintiff grabbing the back of Mr Richardson’s shirt, although it is by no means clear that she had hold of the collar, let alone lifted it; rather she appears to have hold at or below the shoulder blades. However, the primary judge was dismissive of the plaintiff’s evidence, stating, under a heading “The plaintiff’s deliberate intervention in the fighting”: [16]

5. [34]

   The phrase, “take reasonable care for her own safety” was derived from a negligence case dealing with the duty of care of a council having responsibility for a footpath; it was not concerned with a claim in battery. More will be said about the behaviour of Mr Richardson in relation to the plaintiff shortly.

6. [35]

   The judge considered Mr Richardson’s evidence as follows: [17]

7. [36]

   There is an apparent inconsistency between the proposition that, on the one hand, Mr Richardson “feared” being pulled to the ground by the person behind him and was making a panicked attempt to free himself to avoid the “oncoming Mr Provan” and, on the other hand, within a second was trying to “move towards” Mr Provan so he could again engage with him. The CCTV footage leaves no doubt that Mr Richardson wanted to move toward, not avoid an oncoming Mr Provan. The trial judge accepted that Mr Richardson “was in fear for his own safety”. [18] If Mr Richardson held a subjective fear, as he asserted, [19] of being “thrown to the ground” by the plaintiff into whom had backed and who briefly had hold of his shirt, the fear was unreasonable and possibly irrational. His evidence of such a fear was implausible.

8. [37]

   However, Mr Richardson’s subjective beliefs were irrelevant to the question of whether Ms Brighten’s conduct was unlawful. The judge described her seizure of Mr Richardson’s shirt as “deliberate and intentional” and immediately concluded that because it was deliberate and intentional it constituted a “battery on” Mr Richardson. The reasoning continued: [20]

9. [38]

   The trial judge did not expressly find that Ms Brighten’s conduct was criminal, nor that it was tortious, although the language would be consistent with either. It is convenient to consider whether there was unlawfulness in any relevant sense.

10. [39]

    It is clear from the CCTV footage of the incident that, when Ms Brighten put her hands up into Mr Richardson’s back, he was moving backwards towards her; indeed, he forced her backwards. Her stated explanation for putting her hands up to his back was not challenged in cross-examination; the objective material provided by the CCTV camera was consistent with her holding a fear that he would fall back onto her, if he continued backwards without looking where he was going. Her self-report as to her state of mind should not have been rejected as unreliable. [21] There is no basis in the law for finding that a person who puts up her hands to stop a larger person moving fast backing into her and possibly knocking her over, is acting unlawfully.

11. [40]

    Alternatively, if, as the judge implicitly held, she in fact held on to Mr Richardson’s shirt with the intention of preventing him returning to the fray, the judgment failed to explain why that action would be unlawful. Does seeking by such means (which were likely to be inadequate and ineffectual) to prevent a large man from returning to the fray in order to punch one’s friend, constitute criminal conduct? The answer would require the application of s 418(2) of the Crimes Act, which is set out above. That exercise was not undertaken by the trial judge. If Ms Brighten were seeking to hold Mr Richardson out of the fray to defend another person, within the terms of s 418(2)(a), it should be inferred that that was an instantaneous judgment, which she believed to be necessary. Given the very limited nature of the defensive response, it was undoubtedly a reasonable response in the circumstances as she perceived them. There is no basis to infer that, if that were her intention, she acted with excessive force.

12. [41]

    It does not matter whether Mr Richardson’s conduct towards Mr Provan was lawful; as s 422(a) states, self-defence is not excluded merely because the conduct to which the person is responding is lawful. It should have been concluded that Ms Brighten’s conduct in grabbing Mr Richardson was not criminal. No case to the contrary was relied on by Mr Richardson.

13. [42]

    Applying McMaster, it is then necessary to consider whether Ms Brighten’s conduct in grabbing Mr Richardson for the purpose of restraining him was tortious. No authority was relied upon to support a conclusion that self-defence would not be available with respect to the tort of assault, where it was available to a crime. On the assumption that s 52 only applies in determining civil liability for the purposes of personal injury damages, there was no claim by Mr Richardson for personal injury damages (unsurprisingly) and hence s 52 has no operation.

14. [43]

    No submission was advanced in this court that, if not criminal, Ms Brighten’s conduct in holding Mr Richardson’s shirt was tortious. A man throwing himself into a brawl and stepping back fast cannot be heard to complain of an affront to his personal integrity if he backs into a person who takes reasonable steps to stop him. The circumstances may not closely resemble the “ordinary conduct of daily life”, [22] but the solicitude of the law for the physical integrity of the individual will be muted in such a situation. What constitutes unacceptable conduct “must be considered in the context of the incident in dispute.” [23] The plaintiff’s conduct was not unlawful.

15. [44]

    This is sufficient to dispose of the defences relied on by Mr Richardson under s 52 (and therefore s 53) of the Civil Liability Act.

(c) battery – causation

1. [45]

   Having dealt with the questions arising under ss 52 and 53 of the Civil Liability Act, the judge assessed non-economic loss. [24] She then turned to the allegation of negligence against the third defendant, which she rejected on the basis that the claim was really for battery and that “[t]he analysis for the purposes of the battery allegation equally applies in the context of the plaintiff’s negligence action.” [25] It is now accepted that the sole cause of action relevant to Mr Richardson’s blow is battery.

2. [46]

   The judge, apparently addressing causation, asked whether the plaintiff’s actions were “explicable” by reason of her intoxication. [26] She concluded: [27]

3. [47]

   It is true that the third defendant relied upon s 50(2) of the Act, “in answer to the plaintiff’s claim”, without limit as to the cause of action. However, to the extent that the claim in battery succeeded, there was no reason to suppose that the conduct did not fall within s 3B(1)(a) of the Civil Liability Act, with the result that s 50, which is found in Pt 6 of the Act, had no application. So far as causation is concerned, s 5D also had no application. There was no dispute that the blow caused Ms Brighten’s physical injury to her jaw. [28]

4. [48]

   There was a dispute as to whether it caused a “secondary mechanical straining injury” to her neck. [29] The judge rejected any link between a strain injury to the neck and the attack by Mr Richardson.

5. [49]

   Although the hospital report the day after the incident recorded no neck pain and good range of movement of the neck, on 28 April 2014 Dr Sherring, an oral and maxillofacial surgeon, noted “some discomfort of the cervical muscles but no midline neck tenderness.” In her evidence-in-chief, Ms Brighten spoke about pain and stiffness in her neck for which she was having physiotherapy. She appears to have indicated the back of her neck, moving down to the shoulder blade. [30] Dr Sherring’s report was basically consistent with the description given by the plaintiff in the witness box, although she also described a locking effect and restrictions on movement of a more dramatic kind. The cross-examination of the plaintiff on this topic was limited and inconclusive.

6. [50]

   The plaintiff’s occupational health expert, Dr Gerard Barold provided two reports, referring in each to a complaint of “frequent neck pain with occasional shoulder aching”. [31] In November 2016, he noted “left lateral flexion was restricted to 20 degrees with all other planes of neck movement being essentially unrestricted and to end range”; in January 2018 he noted “right lateral flexion was slight reduced when compared to the left and left neck rotation was restricted to 70 degrees compared to full neck rotation of 90 degrees on the right.” Precisely what that meant was unexplained.

7. [51]

   There was a further aspect of the evidence. As will be noted below, the plaintiff completed two health questionnaires for employment purposes, one in November 2014, some seven months after the incident, when applying to renew her contract of employment; the second in July 2016 when she was applying for her present position. On the first form, she answered “No” to the question whether she had “neck injuries and/or problems”. She gave detail of her broken jaw and PTSD, but not of neck problems. The second questionnaire, completed in July 2016, answered “Yes” to the question about neck injuries, identifying the injury as having occurred on 25 April 2014. The trial judge accepted the negative answer in the first questionnaire as “honest” and, presumably, accurate.

8. [52]

   Given the inconsistencies in the evidence, the judge was entitled to reject the link between any discomfort or injury of the neck and the activities of 25 April 2014, largely based on her assessment of the plaintiff. No error was established in this respect.

(d) battery – assessment of damages

1. [53]

   Damages were to be assessed according to general law principles, without regard to the constraints imposed by Pt 2 of the Civil Liability Act. It is therefore necessary to consider the proper assessment of damages, including the claims for aggravated and exemplary damages, as against the third defendant, Mr Richardson.

2. [54]

   With respect to non-economic loss, the plaintiff claimed $220,000. A slightly smaller amount was claimed under the Civil Liability Act (if applicable) on the basis that her injury should be assessed at 35% of a most extreme case. The trial judge indicated that she would have quantified the plaintiff’s case at 20% of a most extreme case. [32] Applying general law principles, the trial judge would have awarded the sum of $60,000.

3. [55]

   The judge described her condition in the following terms: [33]

4. [56]

   The judge considered a claim of chronic post-traumatic stress disorder in the severe range. She agreed that the plaintiff was “shocked and upset by the events” and sought psychological and psychiatric assistance. The judge had regard to the evidence of her treating psychiatrist and other medical opinion, finding that any post-traumatic stress disorder was entirely resolved by 2018, when she gave evidence. There were three bases for rejecting her claim of serious psychiatric injury. First, she had a pre-accident history of psychological complaints which reduced the significance of any possible exacerbation. Secondly, the judge thought the plaintiff was unreliable in particular respects and had both understated her prior mental health problems and overstated the effects of her post-accident psychological state. Claims of limited social activities were partly contradicted by acquaintances and by posts on social media. Thirdly, the medical evidence was conflicting; the trial judge dismissed the plaintiff’s experts and accepted the opinion of the respondents’ expert, despite its limited approach.

5. [57]

   It is appropriate to deal first with the plaintiff’s pre-incident psychological history. The judge referred particularly to Ms Brighten’s medical history set out in the records of a medical centre she attended between April 2004 and July 2008. These records ceased some five years before the date of the attack. With respect to the plaintiff’s history of inconsistent and tardy work attendance, the judge noted that that was “years before this incident”; no similar comment was made with respect to the earlier psychological difficulties, nor were they related to inconsistent and tardy work attendance. [34]

6. [58]

   Her treating psychiatrist in 2008 had been Dr Alex Pilsky. She was again referred to him following the attack, and he prepared a report of 22 September 2014 for her general practitioner. His report stated in part:

7. [59]

   Many of the earlier mental health issues arose in and before her early twenties; it was significant that Dr Pilsky had not seen her for three years before the attack.

8. [60]

   A major thrust of Ms Brighten’s case on appeal was that the trial judge had made unwarranted negative findings as to her credibility. Unfavourable findings made in considering liability were said to feed into the assessment of damages. The damages assessment was said to be “thickly littered with unflattering references, criticisms, besmirchments and expressions of general suspicion of Brighten”. [35] Her complaints were marginalised or trivialised.

9. [61]

   There is some force in the suggestion that the judge dealt unequally with the competing accounts of the incident by Ms Brighten and Mr Richardson. While there were no doubt problems with aspects of Ms Brighten’s evidence, there were, equally, problems with aspects of Mr Richardson’s evidence, including elements of prevarication and misleading answers to which the judge did not advert in the generally positive assessment of his credibility. However, the issue with respect to damages was somewhat different. There were three sources of evidence, namely the plaintiff’s oral testimony; documents relating to her health prepared for the purposes of her employment, and expert medical reports. The relevant controversy was whether she had “chronic post-traumatic stress disorder in the severe range.” [36] The judge dealt with her evidence in the following passages: [37]

10. [62]

    For the purposes of her employment, Ms Brighten completed a “Model Health Declaration Form” and a pre-employment health assessment in November 2014 and again in July 2016. The trial judge appears to have placed some weight upon these self-assessments. In the one page health declaration form Ms Brighten ticked a box on each occasion stating she was “not aware of any health condition which might interfere with my ability to perform the inherent job requirements and job demands of this position.” The pre-employment health assessment required that she identify details of her medical history. In November 2014 she gave an affirmative answer to the question “[a]re you being treated by a doctor for any illness/injury?” (Q2) and to the question whether she had ever suffered from depression, anxiety or any other psychiatric condition (Q20). Affirmative answers led to a further set of questions. With respect to Q2, she identified the condition as “broken jaw”, said that she had ongoing symptoms twice a week which were now moderate, that she was receiving physiotherapy and that her degree of recovery was 50%. With respect to Q20, she identified the condition as PTSD, with ongoing symptoms which were now moderate and noted she was receiving victims of crime counselling. She identified the degree of recovery at 90%.

11. [63]

    In answering similar questions in July 2016, she identified ongoing symptoms of the broken jaw and the degree of recovery as 70%; she identified the symptoms of PTSD as severe, although the question asked what “was/is” the severity, without the period being identified in the answers. She described her degree of recovery from PTSD as 80%.

12. [64]

    The judge stated that she accepted “as honest” Ms Brighten’s self-assessment of November 2014, but specifically in relation to the question of neck pain. The judge also accepted so much of the July 2016 assessment of the PTSD as identified an inability to work or perform activities for “6 weeks–6 months”, inferring that that period of incapacity must have expired on 1 November 2014 when her contract ended.

13. [65]

    With respect to her employment, the judge noted that she had been “employed by the same employer for decades” [38] (in fact the period was 14 years by the date of judgment) and noted that there was “no evidence” that her employer “has any concern in 2017/2018.”

14. [66]

    It was one thing to describe parts of the self-assessments, somewhat opportunistically, as “honest”, although without any consideration of the submission that they were likely to be self-serving parts of a job application. It was another to ignore the possibility that a self-assessment of one’s medical prognosis might be unreliable where it was inconsistent with medical assessments.

15. [67]

    The judge also considered that the plaintiff exaggerated her unwillingness to engage in social activities to the same extent that she had prior to the attack. She said it was “difficult to reconcile the shrinking violet that the plaintiff sought to present with the happy and involved person portrayed in [her Facebook profile] or [photographs for which she posed in a pub in December 2014 to May 2015].” Nevertheless she then explained that she did not place much weight on the Facebook pages. The posed photographs taken at the pub covered seven separate occasions over twelve months (2015). Further, the question was not whether the plaintiff was a shy person, but whether she was distressed about attending social evenings at pubs or bars. She accepted that she did go to bars including the 2230 Bar which she thought she had attended less than 10 times and possibly less than five times in 2017. She denied attending fortnightly. She said that she did not go to the Sting Bar and no evidence was called to contradict that assertion, although the current licensee of the Sting Bar since July 2017, Ms Foustellis, was called to give evidence. She said she had seen Ms Brighten at the Zinc Bar (a nearby establishment) “[m]aybe a few times a month”, and “mainly [on] Sunday afternoons when we used to have live music” between September 2015 and July 2017. Ms Foustellis agreed that it was also a restaurant and that it welcomed children and had a family atmosphere. At the end of a lengthy cross-examination, the plaintiff was fired questions with respect to that activity, the cross-examination commencing as follows: [39]

16. [68]

    Although there was some cross-examination, designed to indicate that Ms Brighten had a far more active social life than she conceded, she did not describe herself as a recluse. The significance of this evidence for the purposes of psychiatric assessment was quite limited. If the evidence was inconsistent with a diagnosis of PTSD, it should have been put to the medical experts.

17. [69]

    With respect to the medical expert evidence, the judge made two significant findings. First, she accepted Dr Lee’s opinion that there was no objective evidence of “current psychiatric injury or disability”. Secondly, she concluded that the psychometric testing revealed “simulation”, [40] accepting that “[t]he plaintiff’s evidence was consistent with Dr Lee’s assessment … that the plaintiff did not perform genuinely on the tests that he administered to assess her psychiatric condition”. [41]

18. [70]

    A consistent theme of the psychiatric evidence was that Ms Brighten reported anxiety about her ability to perform her work satisfactorily. The judge dismissed this as exaggeration, in the absence of objective evidence that her employer considered her work performance inadequate. However, as of the psychiatrists only Dr Lee was called, the significance of such anxiety (possibly misplaced) was not explored.

19. [71]

    Ms Brighten’s treating psychiatrist, Dr Pilsky, provided his first report some five months after the attack, namely in September 2014. As noted at [58] above, he diagnosed PTSD. The trial judge accepted Dr Pilsky’s diagnosis of PTSD in September 2014, but determined that the plaintiff was “90% recovered” by her own account in November 2014. That might be thought medically unlikely, absent expert evidence. The judge relied upon the fact that Dr Pilsky did not repeat his diagnosis of PTSD in a brief report of 19 January 2018. [42]

20. [72]

    Dr Pilsky’s 19 January 2018 report referred to Ms Brighten as tearful and not coping at work and having had a lot of sick leave in the last few months. It did not provide a diagnosis, but recommended that she recommence her medication, Valdoxan, an antidepressant. The judge inferred from the omission of a diagnosis that Dr Pilsky did not consider she was still suffering from PTSD in January 2018.

21. [73]

    In July 2017 the plaintiff saw a consultant psychiatrist, Dr Leonard Lee, nominated by the respondents. [43] Dr Lee had her undertake a number of psychometric tests identified as “Structured Inventory of Malingered Symptomology (SIMS), Nonverbal Medical Symptom Validity (NVMSVT) and the Medical Symptom Validity Tests (MSVT).” Her responses to “SIMS” were said to be “highly suggestive of feigned or exaggerated psychosis, neurological impairment, memory impairment, low intelligence or cognitive incapacity and effective disorder symptoms.” Her performance on the other tests was described as “implausible, and cannot be explained by psychiatric disorder, or brain injury.”

22. [74]

    A further test, Minnesota Multiphasic Personality Inventory (MMPI 2) led Dr Lee to conclude that there was “a high probability that she endorsed the items inaccurately by reporting symptoms and behaviours that are rarely seen even in psychiatric inpatients”. He continued:

23. [75]

    It remains necessary to consider whether weight should be given to Dr Lee’s view that there was no “objective evidence of psychiatric disorder”. There were reasons to give limited weight to that opinion. First, although the neuropsychological testing suggested that Ms Brighten’s answers to questions on the computer tests were inconsistent with known clinical diagnoses, and that she was simulating, it was not demonstrated that the answers to the questions were directed towards any particular diagnosis. Dr Lee set out the history that he had obtained, but did not identify particular aspects of that history which demonstrated simulation or invention. Further, Dr Lee conceded in cross-examination that he had not expressly sought information in his oral questioning which might have provided answers to the diagnostic criteria for particular conditions, including PTSD.

24. [76]

    Ms Brighten’s own evidence as to the computer generated testing was that she felt compelled to answer questions by reference to choices none of which appeared appropriate, but without answering which she was not able to proceed to the next step. She expressed frustration at the process. After some “fuss” (the judge’s terminology) the plaintiff’s lawyers obtained what was described as an “MCI report” providing the patient’s scores obtained from the testing done on 28 June 2017. To understand the difficulty in assessing the test results some examples may be given. The report did not identify the methodology adopted in the computer programming, nor how the numeric assessments were created. However, under the heading “Overall memory complaints and levels of effort on Symptom Validity Tests” the following appeared:

25. [77]

    Because the plaintiff has a university degree and has for more than a decade maintained steady employment in relation to pathology testing, she was clearly not a person who had the sort of cognitive difficulty identified. It appears therefore that this was a case where “effort must be seriously questioned.” It does not follow that she was lying in answering oral questions. Further, if that were the diagnosis, it might be important to know the extent to which her answering of questions was consistent over the four years since the attack, in the course of consultations with various psychologists and psychiatrists.

26. [78]

    Under the heading “Notable items endorsed” it was said that Ms Brighten endorsed a number of items, “which are rarely endorsed by healthy adults.” The items included, “I have trouble remembering the face of someone I met last week” and “There are big gaps in my memory of my childhood.” Many of the other items were of the kind, “I can be in the middle of something and have no idea of what I was just doing.”

27. [79]

    It is troubling that the scepticism that the trial judge adopted to every aspect of the plaintiff’s case evaporated in the face of this seriously disturbing material. Dr Lee must have applied the “faking good, faking bad” analysis, because he dismissed any report of distress absent “objective” evidence of clinical criteria. Yet he did so, it appears, on the basis of neuropsychological testing the validity of which was impenetrable and unproven in court. There is no reason to suppose that this court, although it did not hear Dr Lee’s oral evidence, is in a significantly weaker position than was the trial judge to assess the material set out above.

28. [80]

    On 22 November 2016, Ms Brighten saw Dr Bruce Westmore, forensic psychiatrist, at the request of her lawyers. Dr Westmore’s opinion relevantly included the following passages:

29. [81]

    Dr Westmore saw Ms Brighten again in January 2018. His report of 9 February 2018 addressed both her current circumstances and Dr Lee’s report. He said that he was not able to comment on the validity or reliability of Dr Lee’s conclusions without a critical review by an experienced clinical neuropsychologist of the tests conducted. He expressed his opinion in the following terms:

30. [82]

    With respect to Dr Westmore’s evidence, the judge stated: [44]

31. [83]

    That description was unduly dismissive. She did not deny to Dr Westmore having any social life; he noted, “she is uncomfortable in crowds and unfamiliar places … she says if it becomes late she keeps saying to others ‘we have to go, we have to go, this is the dangerous time’.” Further, Dr Westmore knew she had worked in genetics for about 10 years and she had told him that she lost that job after the assault when her contract was not renewed. She had described her current job to him as “less skilful than her previous job.” He also noted that she would now “binge drink on the weekends and occasionally once during the week as well”, whereas before the attack she had limited her alcohol intake.

32. [84]

    The trial judge continued: [45]

33. [85]

    The judge then set out the passage from Dr Westmore’s second report of 9 February 2018, set above at [81]. The judge continued:

34. [86]

    The judge must have meant to say that she believed Dr Westmore was impelled to accept Dr Pilsky’s 2014 opinion, her previous point having been that Dr Pilsky did not express a diagnosis in his 2018 report. Nor was it correct to say that Dr Pilsky “had refined his assessment”: he expressed no view as to whether she continued to suffer from PTSD. Importantly, however, it is beyond any reasonable reading of Dr Westmore’s report to say that he “deferred to” the treating psychiatrist. Dr Westmore clearly diagnosed PTSD, noting that it agreed with that of Dr Pilsky. Dr Westmore was not called; it was therefore not suggested to him that he formed no opinion of his own.

35. [87]

    It is undoubtedly open to a trial judge to identify weaknesses in the underlying assumptions relied upon by an expert, particularly in circumstances where a psychological assessment is made on the basis of self-reporting by a person who has herself been cross-examined at a trial, and to discount a diagnosis on that basis. However, as noted above, there were no demonstrable “errors” in the history provided by Ms Brighten; there may have been different views as to the reliability of the picture she portrayed, but Dr Westmore’s assessment was not challenged. In any event, it is not acceptable for a judge to dismiss an expert report out of hand on the basis that it constitutes acceptance of a diagnosis by another medical practitioner when the report itself clearly expresses a current diagnosis by the report writer.

36. [88]

    Such a conclusion would, further, be irrational in the present case. Dr Pilsky’s report of 22 September 2014 covered a little over a single page. Dr Westmore’s first report, prepared more than two years later, covered some seven pages. What was clearly significant for Dr Westmore was that Dr Pilsky had treated Ms Brighten for earlier psychological symptoms, albeit three years prior to the assault. There was no evidence before Dr Westmore that Dr Pilsky had been a treating psychiatrist over the ensuing years with respect to PTSD.

37. [89]

    Immediately following the passage set out above, the judge concluded: [46]

38. [90]

    This conclusion was not properly made. The acceptable expert evidence established that Ms Brighten suffered from chronic PTSD with co-morbid depression and anxiety. This fact should be reflected in an assessment of general damages.

39. [91]

    In this context, it is convenient to consider whether there should be an element of aggravated damages included in the assessment of non-economic loss. In dealing with this topic, the judge set out a passage from McMaster which, in summary, noted that aggravated damages are compensatory in nature “being awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like”; [48] that, being compensatory, “the assessment is made from the point of view of the party who is wronged”, [49] and were to be contrasted with exemplary damages which are a form of punishment of the wrongdoer.

40. [92]

    In the ensuing analysis of some seven paragraphs, six were devoted to issues relating to the position of the third defendant and were relevant only to the question of exemplary damages. With respect to aggravated damages the judge concluded: [50]

41. [93]

    It will be true in many, if not most, cases where a person goes to the defence of another person and suffers injury, that the injury could have been avoided by doing nothing. However, intervention (if that occurred) does not constitute a licence to be treated with contempt and in disregard of one’s physical integrity, as well as insult to feelings. Although the purpose of an award of aggravated damages is compensatory, it is impossible to disregard the objective circumstances surrounding the act causing harm. The action was violent, deliberate and, being undertaken in circumstances where Mr Richardson must have known that he was striking a young woman of no malicious intent or physical ability to harm him, inexcusable. He may have been angry and incensed by Mr Provan’s conduct, especially to his friend Mr Traino, but that provided no licence to act in the way he did towards Ms Brighten.

42. [94]

    There is a risk of double compensating where separate amounts are awarded for general and aggravated damages. While there can be no precise identification of a range for general damages, there are two reasons for concluding that the judge’s assessment of general damages was too low. First, she appears to have underestimated the ongoing difficulties attributable to the broken jaw. Dr Sherring stated in his report of 23 September 2016:

43. [95]

    Secondly, as explained above, the trial judge was wrong to reject the evidence of psychiatric injury, including an ongoing post-traumatic stress disorder with co-morbid depression and anxiety.

44. [96]

    An appropriate award of damages, absent aggravated damages, would fall in the range of $90,000 to $110,000. However, including an element of aggravated damages, the appropriate award for non-economic loss is $130,000.

45. [97]

    There remains a question about exemplary damages. The judge made a finding that there was “no malice or conscious use of excessive force on the part of the third defendant, nor even any conscious wrongdoing”. She described his response as “an overreaction in a split second to an incident instigated by the plaintiff in deliberately intervening into an obviously dangerous situation.” [51] As may be apparent from what has already been said, that characterisation of Mr Richardson’s conduct is unacceptable. The punch was deliberate, excessive and inexcusable. Subject to one counter consideration, a significant award of exemplary damages would have been appropriate.

46. [98]

    The counter consideration derives from the fact that the purpose of exemplary damages is a form of punishment to the wrongdoer, intended to deter any such conduct in the future and a clear expression of the court’s disapproval of the conduct. However, there should not be double punishment. Mr Richardson was charged with recklessly causing grievous bodily harm and convicted, after a trial. He was sentenced to, and completed, 450 hours of community service. [52] As a result of the conviction he had his security licence revoked by the Commissioner of Police and lost his status as a justice of the peace. Further, he had been an independent auditor for the NSW Police in Miranda and Sutherland Local Area Commands, responsible for attending with an inspector or chief inspector when court ordered destruction of drugs took place. That function was revoked. [53]

47. [99]

    Assuming that the offence with which he was charged was the unaggravated offence pursuant to s 35(2) of the Crimes Act, it is a serious offence carrying a maximum penalty of 10 years imprisonment. Conviction for that offence will, it should be assumed, carry a significant deterrent element. In addition, Mr Richardson was ordered to pay Ms Brighten’s medical expenses, in an amount of some $5,000, which have been paid, though not without some delay.

48. [100]

    Given the criminal conviction and sentence, a further award of exemplary damages would be inappropriate in the circumstances of the case.

Economic loss

1. [101]

   It was common ground at trial that the plaintiff was entitled to a sum of $1,035, being one week’s lost wages, as a result of her injury. The plaintiff claimed an amount of $5,835. The trial judge noted that “[t]he disputed element of her past economic loss claim related to the short period between the end of the contract and the start of the next job as the client liaison officer.” [54] The judge rejected her claim on the basis that she had not established that the delay in renewing her contract in late 2014 resulted from employment difficulties caused by the attack. The judge rejected the claim as unproven. She assessed past economic loss at $1,133 (including superannuation). [55] She also rejected any claim for future economic loss.

2. [102]

   In addition, the judge accepted an amount of $6,601 for past out-of-pocket expenses with an allowance included as a “buffer” for future out-of-pocket expenses. [56]

3. [103]

   These amounts should be accepted. Apart from the assessment of non-economic loss discussed above, the primary challenge to the assessment of damages was the refusal to allow any amount by way of future economic loss.

4. [104]

   The basis of the trial judge’s finding in this regard was the fact that, following the renewal of her contract with the South East Area Local Health Service, the plaintiff had obtained a permanent position with a higher salary than that which she enjoyed at the time of the attack. It was put to her in cross-examination that this was a promotion; she resisted that assessment on the basis that, in her former job, the only higher rung available to her was as a doctor, being a qualification she did not hold. In one sense, that evidence did not assist her; the move from a job where there was no opportunity for promotion to one where there appears to have been greater flexibility or improved wages, supported the judge’s view that she had suffered no loss in terms of her earning capacity as a result of her injury.

5. [105]

   The basis of her claim appears to have rested on two propositions, neither of which challenged the fact of her current earnings. Rather, each involved an element of uncertainty as to whether she would be able to maintain her employment in the future.

6. [106]

   First, there was a question as to whether her continuing physical condition might lead to loss of earning capacity in the future. The trial judge said that “the only work problem that [was] identified reliably was occasional fatigue from talking …. Her work history reveals that any episodic fatigue has had no impact on her working capacity. Her medico-legal oral and maxillofacial surgeon, Dr Cannon opined specifically that her ‘work capacity is unchanged as a result of the incident’.”

7. [107]

   The evidence-in-chief which the judge characterised as “occasional fatigue” read as follows: [57]

8. [108]

   Further, although Dr Cannon did describe her work capacity as “unchanged as a result of the incident”, he also referred to continuing physical disability with her jaw, in terms set out by the trial judge in the passage extracted at [55] above. The passage from Dr Cannon’s report having been set out by the trial judge when considering non-economic loss, [58] it is not clear why that material was not referred to in considering future economic loss.

9. [109]

   The trial judge did not deal squarely with the basis of the plaintiff’s claim to future economic loss. It was not premised on the proposition that any diminution of earning capacity gave rise to a current loss of earnings; rather, it anticipated future financial effects.

10. [110]

    The second element of the claim for future economic loss was the psychological injury relied on by the plaintiff. The evidence in that regard was also dealt with by the trial judge in considering non-economic loss. The judge did not return to this issue when considering economic loss. That was because she had concluded that the plaintiff failed to establish any psychological injury resulting from the attack.

11. [111]

    It was true that Ms Brighten was better paid in 2018 than she had been in 2014. It was also true that her job was “permanent”. It is not clear that she found it more “interesting”. Further, the question of stability appears to have been a reflection of absence of evidence of concern about the quality of her work on the part of her supervisors or employer, rather than her own state of anxiety. The judge did not rely upon evidence from any cross-examination to the effect that the anxieties about work which she had expressed to medical practitioners was unfounded in the sense that her employer had not in recent times complained of her work performance. If that point had been raised, it would have been necessary to put to the psychiatrists a question as to the significance of her unfounded anxiety. That was not done.

Conclusions as to earning capacity

1. [112]

   The judge was correct to conclude that any impairment of her earning capacity had, so far, given rise to no compensable loss. On the material available in this Court, it is not possible to say she was wrong in dismissing the claimed neck injury on the basis that there was no established causal link between any such condition and the attack.

2. [113]

   On the other hand, there was no adequate basis to dismiss the physical sequelae of the broken jaw. The evidence was unequivocal that some aspects of her condition will continue to give her trouble into the future. Dr Cannon concluded that her jaw will continue to deviate, her symptoms of nerve injury will not alter and the osteoarthritic changes will continue and may necessitate further treatment of the jaw joints. However, both Dr Cannon and her treating surgeon, Dr David Sherring, discounted any impact the injury would have on her earning capacity. Accordingly, the trial judge was not in error in declining to assess any continuing impact on earning capacity resulting from the broken jaw.

3. [114]

   However, for the reasons indicated above, the judge was in error in rejecting the diagnosis of PTSD. While it was correct to say that her psychiatric condition had no present effects on her earnings, there remained a level of disability with the capacity to impact on future earnings. Her claims at trial, involving a percentage reduction of overall earning capacity, did not provide a realistic way to proceed. There is, however, the need to engage in an evaluation of possibilities, of future loss, in accordance with the principles stated in Malec v JC Hutton Pty Ltd. [59] Such questions “are not commonly susceptible of scientific demonstration or proof” and in assessing damages, the Court “can only do so in terms of the degree of probability of those events occurring.” [60] The uncertainty is not only as to the occurrence of an event, but as to its nature and effect. Dr Westmore’s view in November 2016 was that Ms Brighten’s PTSD was “now chronic and in the severe range.” He also considered that there was a causal connection with depression and anxiety. He did not depart from his diagnosis of chronic PTSD in his report of February 2018, in which he also expressed the view that “pre-existing anxiety symptoms have probably be aggravated as a result of this injury.”

4. [115]

   It is not possible to identify a percentage chance of a particular event in the future which will involve a demonstrated loss of earning capacity as a result of PTSD, anxiety and depression arising from, or exacerbated by (in the case of anxiety) the attack. The only available course is to allow a “buffer” by way of a lump sum, allowing for the likelihood that such an event may be sometime in the future and therefore the actual amount awarded must be discounted accordingly. In the circumstances, an appropriate figure is $50,000.

Liability of Mr Traino and Sting Bar Pty Ltd

1. [116]

   The case against the corporate defendant was pleaded on the basis of its occupation of the premises. When misconduct was alleged, the negligence of the first and second defendants was pleaded as if it were a joint liability. No issue appears to have been taken as to this approach at trial.

2. [117]

   The claim in negligence against Mr Traino and the company was dismissed by the trial judge on a number of bases which may be summarised as follows:

3. [118]

   It may be that some of the 12 findings made by the trial judge included a rejection of breach, in the event duty was established, for example, by the finding that they did not have “any capacity to take care for her safety by protecting her from her own decision to intervene in the melee”. [61]

4. [119]

   The primary ground of appeal with respect to Mr Traino and the company challenged the judge’s failure to find that they were “not in breach of their duty of care to the appellant”. However, even if the appellant was right in asserting that that was how the matter was determined, the question of breach cannot usefully be considered without regard to the question of duty.

5. [120]

   Implicit in the reasoning of the trial judge was a basic general law principle as to duty of care, and an exception. The principle is that established in Modbury Triangle Shopping Centre Pty Ltd v Anzil [62] that an occupier of land does not generally owe a duty of care to prevent a deliberate attack on a person on the land by a third party over whose actions the occupier has no control. [63] The qualification was expressed by Gaudron J in these terms:

6. [121]

   It is well established that the position of a licensee of licensed premises falls within the exceptional case. [64] The justification for that special case derives from the statutory responsibility of the licensee not to permit a patron on licensed premises to become intoxicated or engage in indecent, violent or quarrelsome conduct. [65] To prevent an offence being committed under that provision, the licensee must establish that the intoxicated person had been asked to leave the premises, attempts had been made to contact police for assistance in removing a person and the person had not been served alcohol after it became apparent that he or she was intoxicated. [66] A power to turn a person out of licensed premises if the person is intoxicated, violent, quarrelsome or disorderly, and to use such reasonable degree of force as may be necessary to effect that purpose, is conferred by s 77(2) and (5). Further, a person who has been turned out commits an offence if, without reasonable cause, he or she remains in the vicinity of the premises or re-enters the vicinity of the premises within six hours of being turned out: s 77(8). The vicinity of licensed premises means any place within 50 metres of the boundary of the premises: s 77(1).

7. [122]

   In cases where steps have been taken to turn a person out, no issue arises as to the knowledge of the licensee or his or her agents of the facts requiring intervention in order to protect patrons. Further, in circumstances where an intoxicated patron has been removed from the premises, the duty of care owed to other patrons does not automatically terminate in respect of that person. In Rooty Hill RSL Club Ltd v Karimi [67] this Court accepted that security staff had a duty to take reasonable care to protect the victim from the criminal conduct of the intoxicated patron (Mr Smith) and that the duty “which arose because of Mr Smith’s known intoxicated and aggressive behaviour inside the club, did not come to an end following his eviction.” [68]

8. [123]

   Section 3 of the Liquor Act sets out certain objects, including the regulation and control of the sale, supply and consumption of liquor in a way consistent with the expectations, needs and aspirations of the community, and states that “[i]n order to secure the objects of this Act, each person who exercises functions under this Act (including a licensee) is required to have due regard to … (a) the need to minimise harm associated with misuse and abuse of liquor (including harm arising from violence and other anti-social behaviour)”. As noted in Adeels Palace Pty Ltd v Moubarak [69] “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”, namely a licence to sell liquor being an activity otherwise prohibited. The duty was identified in the following terms:

9. [124]

   It is clear that a power to turn people out, combined with an obligation on the person turned out not to remain within 50 metres of the premises, that the licence and authority to use reasonable force to effect that purpose do not cease at the door of the premises. Indeed, were it otherwise, there might be very little protection for patrons of premises, such as the Sting Bar, which had open windows on the street front. Further, as is common place, security guards were stationed on the pavement and had barricades in place to control the entry of persons to the bar. Further, the statutory purpose of avoiding harm from abuse of alcohol would not be served by requiring that a person being turned out simply be ejected on to the street or pavement without regard to the welfare and safety of persons outside the premises and in its immediate vicinity.

10. [125]

    It follows that Mr Traino had a duty to take reasonable care to avoid injury to persons on the footpath, in the course of evicting Mr Provan, which persons included Ms Brighten. She did not cease to be a person to whom protection was owed because she was no longer a “patron” or was no longer on the licensed premises. Similarly, her proximity to the quarrel in circumstances when she was seeking to assist by removing Mr Provan from the area, similarly did not mean she lost her right to protection.

11. [126]

    The case against Mr Traino and the company ultimately turns upon whether there was a breach of duty. Mr Traino, as licensee, was entitled and indeed obliged, to remove Mr Provan from the premises in circumstances where he was satisfied that Mr Provan was intoxicated and likely to become troublesome (as he did); Mr Traino was entitled to use and obtain the use of such forces as were necessary reasonably to restrain Mr Provan. He had asked security guards and Mr Richardson to assist him in that task. Taking those steps was a reasonable exercise of his authority as licensee.

12. [127]

    There could only have been breach of his duty if (i) he had authority to tell Mr Richardson to take no further action, and (ii) he knew, or should have known, that Mr Richardson was out of control and likely to cause harm to persons other than Mr Provan.

13. [128]

    The first condition was satisfied in the circumstances; although Mr Richardson was present as a friend, he was a licenced security guard and he was called upon by Mr Traino to assist in removing Mr Provan. Although in a legal sense, Mr Traino had no authority to direct Mr Richardson to assist, it did not follow that he could not, in a practical sense, tell Mr Richardson to back off or stop being aggressive. It may be that, had Mr Richardson ignored such a direction, Mr Traino would not have been liable for what followed. It is not necessary to consider circumstance, because no such direction was given.

14. [129]

    The problem comes at the second stage; did Mr Traino know, or should he have known, that Mr Richardson was liable to behave in an aggressive and violent manner towards an innocent bystander whom he thought was in his way?

15. [130]

    Prior to the attack on Ms Brighten, there was nothing to provide a basis for a finding that Mr Traino knew that Mr Richardson was liable to be violent in the way noted above; nor was there any conduct on Mr Richardson’s part that should have alerted Mr Traino to such a concern. The CCTV footage does not show Mr Richardson playing an aggressive role in subduing Mr Provan until, seconds before he hit Ms Brighten, he attempt a kick or leg sweep to try and knock Mr Provan down without coming close enough to be punched. The attack on Ms Brighten occurred within a second or two of that action, as he stepped quickly backward from the fray, the leg sweep having been unsuccessful. Indeed, it was not entirely clear, prior to the assault, that he intended to re-enter the fray. Accordingly, there was no breach of duty to Ms Brighten on the part of Mr Traino in failing to direct Mr Richardson to stop providing assistance. There was, therefore, no breach of duty. The negligence claims against Mr Traino and the company were properly dismissed.

Orders

1. [131]

   It follows that there should have been a judgment at trial in favour of Ms Brighten in an amount of $187,734, against Mr Richardson. As between her and Mr Richardson, she should have her costs of the trial and the appeal, including the costs relevant to the proof of loss. That may be assessed as 2/3rds of her costs of the trial.

2. [132]

   As between her and Mr Traino and the company, there should be an order that Ms Brighten pay their costs of the trial and the appeal, limited to the question of liability.

3. [133]

   The Court should make the following orders:

   1. (1)

      Allow the appeal and set aside orders 1 and 5 made in the District Court on 30 May 2018.

   2. (2)

      In their place:

   3. (3)

      Order that the third respondent pay half the appellant’s costs of the appeal.

   4. (4)

      Dismiss the appeal against the first and second respondents.

   5. (5)

      Order that the appellant pay the first and second respondents’ costs of the appeal, limited to the question of liability.

   6. (6)

      Grant the third respondent a certificate under the Suitors’ Fund Act 1951 (NSW).

4. [134]

   GLEESON JA: I agree with the orders proposed by Basten JA, and subject to one matter, with his Honour’s reasons.

5. [135]

   The qualification concerns the meaning of “unlawful” in s 52(1) of the Civil Liability Act 2002 (NSW). It is not necessary in this case, particularly where the issue was not the subject of any submissions and is not dispositive, to consider the correctness of this Court’s decision in State of New South Wales v McMaster [71] that “unlawful” as it appears in s 52 is not confined to criminal conduct, and includes tortious conduct. This is because, as Basten JA concludes at [43], the conduct of Ms Brighten in holding the back of Mr Richardson’s shirt was not, in the circumstances, tortious.

6. [136]

   BRERETON JA: On the night of 25 April 2014, the appellant Erin Brighten, a slightly built woman then aged 34, attended the Sting Bar in Cronulla in the company of a number of friends, including Luke Provan. The first respondent Pasquali John Traino was the licensee, and the second respondent Sting Bar Pty Ltd the owner, of the premises. In the course of the evening, Mr Traino determined it was necessary to exclude Mr Provan – whom he thought was under influence of ice – and asked him to leave. Mr Provan declined and was forcibly ejected by Mr Traino with the assistance of a security guard. The third respondent Brett William Richardson, who was a friend of Mr Traino and happened also to be a licensed security guard, was in attendance at the Sting Bar as a guest of Mr Traino. Mr Traino asked him to “watch his back” during the ejection of Mr Provan. Until Mr Provan was outside on footpath, Mr Richardson took a back seat. On the footpath, however, he engaged in the melee which ensued, in the course of which he delivered a punch to Brighten’s chin, which knocked her to the ground and has occasioned her ongoing disabilities. Ms Brighten sued Mr Traino and Sting Bar for damages for negligence, and Mr Richardson for battery, in the District Court. Gibb DCJ dismissed her claim, and she appeals to this court. No appeal has been brought from her Honour’s dismissal of cross-claims between the defendants.

7. [137]

   I have had the benefit of reading in draft the judgment to be delivered by Basten JA, which fully describes the background and issues, and enables me to state relatively shortly why I agree with His Honour that the appeal against the judgment in favour of Mr Richardson should be allowed and a judgment in favour of Ms Brighten against him substituted (although I differ in one respect – as to future economic loss – as to the amount of that judgment), while the appeal against the judgments in favour of Mr Traino and Sting Bar should be dismissed.

The claim against Mr Richardson

1. [138]

   The trial judge found, inevitably, that Mr Richardson committed a battery on Ms Brighten, which finding is unchallenged. However, Ms Brighten failed to recover damages for battery, on account of two defences – self-defence, and intoxication.

2. [139]

   As to self-defence, her Honour found:

   1. (1)

      Civil Liability Act 2002 (NSW), s 52(1), was engaged, as Mr Richardson’s attack on Ms Brighten was in response to her contact with Mr Richardson which was itself an unlawful battery;

   2. (2)

      Civil Liability Act, s 52(2), was not satisfied, because Mr Richardson’s response was excessive;

   3. (3)

      however, the case was not exceptional, so no damages were recoverable by reason of Civil Liability Act, s 53.

3. [140]

   As to the first of those findings, Ms Brighten’s contact with Mr Richardson, to which he allegedly responded, was not an unlawful battery. It was either an attempt to protect herself when it appeared to her that he would reverse rapidly into her (when he had just launched himself into the fracas and endeavoured to kick Mr Provan’s legs from under him), or at the worst an endeavour to restrain him from resuming his attack on Mr Provan.

4. [141]

   The CCTV footage of the incident depicts that when Mr Provan returned to the fight after Ms Brighten had for a moment persuaded him to walk away, Ms Brighten walked to the kerb, apparently to look for a taxi. [72] When she turned back towards the melee, Mr Richardson had moved to position himself to intervene in the altercation. [73] Ms Brighten took a couple of steps towards Mr Provan, and then stopped, her feet side by side, as Mr Richardson began a rush towards Mr Provan from her right. [74] Mr Richardson then continued his rush towards Mr Provan, to launch a “kick” at his legs, apparently with the intention of sweeping his legs from under him so that he would fall to the ground. [75] As Mr Richardson recovered his balance he moved backwards, rapidly, towards Ms Brighten’s position; simultaneously, she raised both forearms to a horizontal position, and took a half-step forward towards his back. [76] As he continued his backwards motion, she extended both arms horizontally, and his back collided with her fingers, his momentum driving her backwards and the forward-facing palms of her hands up his back. [77] He then spun to his left, swung his left arm initially in a coat hanger like motion, but then straightening it, to clear her away from his back; then, looking directly at her, he flexed his right arm at the elbow, stepped into her, and delivered a forceful punch to her chin. [78] He then immediately ran back to the melee, [79] and appears to have launched another attempted “sweep”, [80] threw a punch at Mr Provan’s head, [81] and became fully engaged in the brawl with Mr Provan.

5. [142]

   Although Ms Brighten appears to have raised her arms and stepped slightly forward before Mr Richardson began to reverse towards her, they were fully outstretched, palms out, after he began to reverse, when he collided with them. There is no sign of any offensive or aggressive, as opposed to defensive, manoeuvre on her part. She was acting entirely lawfully, either to protect herself, or at the highest to restrain Mr Richardson from resuming his attack on Mr Provan. The trial judge, who thought that Ms Brighten grabbed and held Mr Richardson’s shirt, appears to have accepted that her intent was to restrain:

6. [143]

   Having regard to the testimonial evidence, but more particularly to the CCTV, and remembering that the entire incident took place over about five seconds, and that it is important to view the video continually as well as frame by frame, I am completely unpersuaded that Ms Brighten set out to grab Mr Richardson’s shirt; the more probable explanation is that she was endeavouring, almost reflexively, to prevent him reversing into her, and then took hold of the shirt in the split second that he took to spin around in her direction. A mere accidental touching of that kind is not a battery, because it was entirely without fault on Ms Brighten’s part. It is not correct that Ms Brighten had no defence, [82] as not every touching of another’s body is a battery: since Weaver v Ward [83] it has repeatedly been said that no-one may be excused of a trespass to the person “except it may be judged utterly without his fault”; the corollary is that there is an excuse, if the touching is entirely without fault, [84] albeit that the defendant bears the onus of proving the absence of intent and negligence on his or her part, rather than the plaintiff having to prove that the defendant acted either intentionally or negligently. [85] Ms Brighten no more battered Mr Richardson by touching his shirt, than he did her when he reversed into her outstretched arms.

7. [144]

   And even if the trial judge’s description and conclusion as to Ms Brighten’s intent be correct – namely that she intended to restrict or impede Mr Richardson – I do not accept that that would, in the circumstances, have been unlawful. He had just launched a violent kicking attack on her associate Mr Provan; to restrain him from renewing his attack (which his subsequent actions show he plainly intended to do), or from re-joining the affray, merely by holding his shirt for a second, was not an unlawful battery.

8. [145]

   Thus in my judgment, on no reasonably open view, was Ms Brighten’s contact with Mr Richardson prior to his punching her unlawful. It follows that, as the punch was not in response to unlawful conduct of Ms Brighten, it was not in self-defence, and s 52(1) was not engaged. It is therefore unnecessary to consider whether her Honour, having concluded that the punch was in self-defence but a disproportionately excessive response, erred in concluding that the case was not an exceptional one so that no damages were recoverable by operation of s 53.

9. [146]

   As to intoxication, her Honour found:

   1. (1)

      Mr Richardson’s battery of Ms Brighten was not intentional such as to engage Civil Liability Act, s 3B(1)(a), and so Civil Liability Act, Pt 6 (which includes s 50) was not excluded; [86]

   2. (2)

      Ms Brighten was so intoxicated that her capacity to exercise reasonable care and skill was impaired, so s 50(1) was engaged; and

   3. (3)

      the incident would not have happened had she not been intoxicated, so no damages were recoverable by reason of s 50(2).

10. [147]

    On any view of the evidence, and in particular the CCTV, Mr Richardson’s act – the punch – was intentional, and was intended to cause injury. The force, direction and deliberate movement of the arm, and the direction in which Mr Richardson was looking at the time, as well as the accuracy of the blow, establish this. Civil Liability Act, s 3B(1)(a), was therefore engaged, with the consequence that the defence of intoxication was not available.

11. [148]

    Even if it were available, the evidence did not establish that Ms Brighten was so intoxicated that her capacity to exercise reasonable care and skill was impaired, in the circumstances that she was not driving a motor vehicle, or operating machinery, or engaging in a dangerous activity requiring a high degree of judgement; but merely being on a footpath outside a bar, even endeavouring to moderate a melee. The judgment as to whether a person is so intoxicated that his or her capacity to exercise reasonable care and skill is impaired is to be made having regard to the particular circumstances of the case, as Allsop P explained in Amanda’s On the Edge Pty Ltd v Dries: [87]

12. [149]

    While Ms Brighten had consumed a number of drinks, the evidence did not establish that her capacity to exercise reasonable care and skill, in the circumstances in which she was and the activities she was undertaking, was impaired. Nothing appears on the CCTV which would so suggest. The fact that she intervened in the melee, to the very limited extent that she did, to endeavour to placate her associate and remove him from the scene, and then (taking the evidence against her at the highest) to endeavour to prevent the renewal of an attack upon him, does not bespeak a compromised capacity; in particular, I do not accept that a woman of her build would not do such a thing except for the influence of alcohol. [88]

13. [150]

    The trial judge relied on evidence that Ms Brighten had been drinking since early afternoon; that on admission to hospital she smelt of alcohol and was noted as having “ETOH on board”, and that a doctor had taken from her a history that she was “intoxicated”, which was treated as an admission. “Intoxicated” is a word which may mean different things to different people. It has different meanings in the Liquor Act 2007 (NSW) and in the Civil Procedure Act. Even if Ms Brighten used the word “intoxicated” – rather than it being the doctor’s interpretation – it is a word of ambiguous meaning. Its use by her, if she used it, does not amount to an admission that she was so intoxicated that her capacity to exercise reasonable care and skill was impaired.

14. [151]

    Further, even if her capacity to take reasonable care for herself was affected, her intoxication did not contribute in any way to the cause of the injury or damage. The cause of the injury was a vicious and unprovoked king hit. Her inebriation, such as it was, made not the slightest contribution to it. Thus even if s 50(1) was engaged, under s 50(3) there would be no finding of contributory negligence. Although, on the view I take, the question of contributory negligence does not arise, her Honour’s assessment of 100% contributory negligence was manifestly unreasonable.

15. [152]

    Both the defences which resulted in the trial judge’s conclusion that Mr Richardson was not liable for his battery of Ms Brighten ought to have failed. Ms Brighten was therefore entitled to succeed against Mr Richardson.

The claim against Mr Traino and Sting Bar

1. [153]

   There are potentially two bases on which Mr Traino and Sting Bar might have been held liable for Ms Brighten’s injuries and disabilities: the first is that they were vicarious liable for Mr Richardson’s battery; and the second that they failed to exercise reasonable care for Ms Brighten’s safety in circumstances where they owed her a duty to do so.

2. [154]

   It was not pleaded that Mr Traino and Sting Bar were vicariously liable for Mr Richardson’s battery, and her Honour was right to so hold. The ground of appeal challenging that finding was ultimately abandoned.

3. [155]

   Ms Brighten’s case in negligence against Mr Traino and Sting Bar was advanced on the basis of a pleading that they owed a duty to take reasonable care to prevent injury to patrons, and breached that duty, relevantly, by:

   1. (1)

      requiring, allowing or permitting an intoxicated person (Mr Richardson) to participate in the ejection of a patron (Mr Provan);

   2. (2)

      failing to eject Mr Provan “properly and appropriately”, including by using trained contracted security guards to do so;

   3. (3)

      allowing Mr Richardson to be or remain on the premises when intoxicated; and

   4. (4)

      failing properly to supervise Mr Richardson.

4. [156]

   The theory of this case was that, but for the presence and involvement of Mr Richardson in the ejection of Mr Provan, he would not have been present at the melee on the footpath and thus would not have assaulted and injured Ms Brighten. However, while as a matter of strict factual causation that might be accepted, the argument fails because breach of duty is not established.

5. [157]

   It may be accepted that Mr Traino and Sting Bar had a duty to take reasonable care to prevent injury to customers, including Ms Brighten, on the premises from the violent or disorderly conduct of others. [89] That duty arises from the capacity and statutory obligation of the manager or licensee to control conduct on licensed premises (for example, under Liquor Act 2007, s 77), coupled with the knowledge or ability to know about the conditions of persons on the premises. [90] However, 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. [91]

6. [158]

   Mr Richardson was present in the bar at the invitation of Mr Traino. He had admittedly had a number of drinks, but there is nothing to indicate that he was in such a condition that he ought to have been removed from the premises on account of intoxication. Indeed, even when he actively intervened in the melee, his conduct was agile, not indicative of being intoxicated.

7. [159]

   Mr Traino and Sting Bar were entitled to eject Mr Provan, and to use reasonable force and assistance to do so. Mr Richardson was asked by Mr Traino to “watch his back” during the ejection of Mr Provan, who Mr Traino thought was under the influence of ice. Mr Richardson had had some security training and experience. There was nothing to suggest that Mr Richardson had any history of violence; Mr Traino had never known him to be violent. It is not apparent how it was in the slightest negligent for Mr Traino to ask him to “watch my back”. Until seconds before his interaction with Ms Brighten – when he launched his kick at Mr Provan’s legs – Mr Richardson took a back seat during the ejection. There was no basis for concluding that Mr Traino knew or ought to have known that he might intervene with inappropriate force, let alone against a third party. There was no basis for apprehension that Mr Richardson would act excessively – and reasonable care could not have required Mr Traino and Sting Bar to tell Mr Richardson to cease and desist – until, at the very earliest, his attempt to kick Mr Provan’s legs, and even then that did not suggest a threat to anyone else.

8. [160]

   Thus there was nothing, at least before he launched his kick at Mr Provan’s legs, to trigger any obligation to remove him from the premises, or to render it inappropriate to ask him to “watch my back”. Once he had intervened with the kick, there was no reasonable possibility for Mr Traino to intervene – by saying at that point “Enough; stand down” – before Mr Richardson struck Ms Brighten. The risk that Mr Richardson, who was not known to have any violent disposition, having been asked to assist with the ejection of Mr Provan, would assault someone other than Mr Provan, was not reasonably foreseeable, and failing to take precautions against it was not negligent.

9. [161]

   The claim against Mr Traino and Sting Bar was rightly dismissed.

Damages

1. [162]

   Having concluded that all the appellant’s claims should be dismissed, her Honour nonetheless properly proceeded to assess damages – both under the Civil Liability Act and at common law. As on the view I take Ms Brighten succeeds only against Mr Richardson, and in respect of a tort which involved an intentional act intended to cause harm, only the common law assessment is relevant. On that basis, her Honour would have awarded:

   1. (1)

      $60,000 general damages;

   2. (2)

      $1,133 past economic loss and nil for future economic loss;

   3. (3)

      $1,601 for past out-of-pocket expenses;

   4. (4)

      $5,000 for future out-of-pocket expenses; and

   5. (5)

      no aggravated or exemplary damages.

2. [163]

   For the reasons given by Basten JA, I agree that the assessment of general damages miscarried by reason of her Honour’s conclusion that any PTSD was entirely resolved by 2018, and that general damages should be assessed on the basis that Ms Brighten continued to suffer, to some extent, from chronic PTSD with co-morbid depression and anxiety.

3. [164]

   I also agree with Basten JA that her Honour’s refusal to award aggravated damages – on the basis that any injury to Ms Brighten’s feelings caused by insult, humiliation and the like was the direct result of her own decision to intervene in the fight – was erroneous. The indignity and humiliation of being knocked to the ground by a king hit in a public place called for a substantial award of aggravated damages. I agree that it is appropriate to reflect this in the overall award for non-economic loss, and that an appropriate amount for this, comprising general and aggravated damages, is $130,000.

4. [165]

   For the past, the appellant claimed $5,835; the respondents conceded $1,035 being one week’s wages. The difference was in respect of a period between jobs in November 2014. However, the contract on which Ms Brighten was employed expired in November 2014, whereupon the HR department found her a part‑time placement for four months, and then secured another position, which became permanent. Her Honour found that there was no evidence that her injuries played any role in her not immediately securing a new contract, and no error is apparent in that conclusion.

5. [166]

   As to the future, her Honour found that Ms Brighten’s career had prospered since the injury, referring to evidence from one of her qualified experts that her work capacity was unchanged, and concluded that there was no prospect of any future economic loss by reason of the injuries sustained in the incident. Her Honour observed that the only work problem reliably identified was occasional fatigue from talking, which had had no impact on her capacity to work.

6. [167]

   On the basis that her PTSD was resolved, there was no basis for an award for future economic loss. I have accepted, for the reasons given by Basten JA, that Ms Brighten’s PTSD was not completely resolved, as is reflected in my conclusion as to general damages. However, that condition has had no impact on her earnings to date, and the evidence tends to relate the impact of her PTSD to her social life rather than to her employment – as might be expected, given the context in which the assault occurred. It is true that Ms Brighten has reported anxiety about her ability to perform her work satisfactorily, but there is nothing to indicate that there is in fact any shortcoming in her work performance, or that her anxiety in that respect impacts on her capacity to attend and perform the functions of her employment. In my view, it has not been explained how her residual chronic PTSD affects her earning capacity.

7. [168]

   Ms Brighten incurred a loss of earnings in the immediate aftermath of the assault while she recovered from her physical injuries. But I am unpersuaded that her disabilities are such as to compromise her future earning capacity. Thus although I accept that she has some chronic PTSD, I am not persuaded that her Honour erred in making no provision for future economic loss.

8. [169]

   As to exemplary damages, the trial judge found no malice or conscious use of excessive force, nor even any conscious wrongdoing, on the part of Mr Richardson, but “an overreaction in a split second to an incident instigated by the plaintiff in deliberately intervening into an obviously dangerous situation”. Her Honour referred to Mr Richardson’s good character and non-violent history, and took into account that he had suffered curial and non-curial punishment (conviction and sentence to 450 hours community service, loss of his security licence and some employment opportunities). I agree, with Basten JA, that although the punch was deliberate, excessive and inexcusable and would otherwise merit an award of exemplary damages, in the circumstances of this case – given the criminal conviction and sentence and extra-curial consequences – an award of exemplary damages would be inappropriate.

9. [170]

   In my view, damages should be assessed as follows:

Orders

1. [171]

   In my view:

   1. (1)

      the appeal should be allowed in part;

   2. (2)

      the judgment for the third defendant against the plaintiff should be set aside and in lieu thereof there should be judgment that the third defendant pay the plaintiff $137,734; and

   3. (3)

      the order that the plaintiff pay the defendants’ joint and several costs, inclusive of the various cross-claims, should be set aside, and in lieu thereof: