Nothing good happens after midnight – plaintiff awarded $12.49M in damages following altercation with security guard outside nightclub

05 October 2023

A heavily intoxicated Salamanca nightclub patron was awarded $12.49M in damages for serious head injuries sustained after being punched by a security guard.

In issue

  • Whether the plaintiff was pushed or punched by the security guard.
  • Whether the security guard was acting in self-defence.
  • Whether the security guard had an intention to injure the plaintiff and if so whether the Civil Liability Act 2002 (CLA) (Tas) applied.
  • If the CLA did apply, whether the plaintiff was prevented from being awarded damages under the CLA (s 6 provides criminals are not to be awarded damages).
  • If the defendant was liable, whether the plaintiff was contributorily negligent for his injuries under the Wrongs Act 1954, and if so to what extent should damages be reduced.

The background

The plaintiff was heavily intoxicated. He was involved in an altercation with a member of security at a Salamanca night club. He threw the first punch striking the defendant’s ear, before he was then punched by the security guard. He fell backwards and hit his head on the concrete ground sustaining a significant head injury.

The decision at trial

At trial, after an assessment of the evidence (including witness testimony and CCTV footage), Porter AJ found that the defendant had punched the plaintiff rather than pushed him. His Honour did not accept the defendant was acting in self-defence, and in particular made reference (amongst other things) to the observations the defendant had been able to make of the plaintiff throughout the night, the physical positions the parties were in, the fact the defendant was sober and the defendant’s level of training as a crowd controller.

His Honour went on to find that the defendant was acting intentionally when he injured the plaintiff, that is he meant to harm or hurt to more than a negligible extent [at 187], and as a result, by virtue of s 3B(1)(a) of the CLA (which states the CLA does not apply in respect of civil liability for an intentional act to cause injury), the CLA did not apply.

Although it was not necessary to do so, in case he was wrong to decide the CLA did not apply in the circumstances, his Honour considered whether s 6 of the CLA applied. In essence, s 6 of the CLA provides that a Court is not to award damages if satisfied that a person whose injury is the subject of the proceeding was, at the time of the incident that resulted in the injury, engaged in conduct that constitutes a serious offence and that conduct contributed materially to the injury. His Honour took a strict approach to the construction of s 6 of the CLA and noted the conduct of the plaintiff and the tort committed by the defendant were separated by seconds. In concluding that s 6 of the CLA would not apply, his Honor noted there was no evidence the plaintiff was going to strike the defendant again, and the CCTV footage showed the plaintiff moving slightly away from the defendant after he was punched.

Despite finding that the defendant intentionally injured the plaintiff, his Honour considered there was contributory negligence on behalf of the plaintiff, not only because he had punched the defendant, but because the plaintiff had earlier displayed antisocial and antagonistic behaviour, he was escorted from the club by security staff and made the decision to return, and was looking for further confrontation. His Honour considered a deduction of 20% was appropriate.

Before assessing general damages his Honour was required to deal with the issue of life expectancy noting it had an impact on a number of heads of damages. Whilst broadly weight was given to both experts, life expectancy was assessed at 68 years. Notably his Honour did not take issue with Dr Brooks analysis (on behalf of the defendant) using USA statistics.

When considering general damages and applying an award of $350,000, his Honour referenced the plaintiff’s past treatment and ongoing care requirements, cognitive deficits, limitations on recreational pursuits, and the plaintiff’s age. His Honour also took into account the potential mitigation of his disabilities by more pro-active care and the improvement in his enjoyment of life due to the damages he will receive for future care and housing.

Of relevance in the assessment of damages was his Honour’s approach to the calculation of interest. Interest was only claimed in respect of the plaintiff’s past economic loss. His Honour followed the approach taken by Wood J in Dann v Port Sorell Bowls Club Inc (No 2) allowing interest from the date of the enactment of s 35A of the Supreme Court Civil Procedure Act 1932.

Implications for you

The finding that the defendant intentionally injured the plaintiff had a significant impact on damages in this case noting the non-application of the CLA resulted in the 3% deferral factors applying (compared to the 5%) and the plaintiff’s claim for gratuitous services was not restricted under the CLA. The award of $350,000 for general damages is the highest award in Australian dollars in Tasmania (noting the award in Raper v Bowden was awarded in pounds). This suggests general damages awards are on an upward trajectory, and may impact the assessment of this head of damages in litigated matters. The decision is also of interest because of the Court’s acceptance of US statistics and data on life expectancy, and also for the guidance provided on the assessment and calculation of interest, which aim to achieve fairness between parties.

Public Trustee as Administrator of the Estate of Matthew Leonard v Atileo [2023] TASSC 33

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