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In what circumstances is a nightclub “bouncer” responsible for injuries to an intoxicated and provocative patron who he retaliates against to restrain?
Matthew Leonard – then aged 28 – had been drinking with his sister in a Hobart pub on a cold Saturday night in July 2014 before making his way to the Syrup Nightclub in Salamanca Place just after midnight.
Once inside, he began to harass female patrons. Complaints to security staff led to him being confronted by security guard Fale Atileo who began to usher him from the premises.
Under protest that he needed to collect his jacket, he was taken to the bar area to enquire if a jacket had been handed in.
During that interchange Leonard became agitated, abusive and aggressive. He punched another guard who had arrived to assist, before being restrained and physically manoeuvred from the venue.
He was told to go and “enjoy his night somewhere else” but hovered around and remonstrated with Atileo from the roadside.
The antagonist then walked across the road in a very unsteady manner before turning around and making his way “very deliberately” back towards the club.
After some jostling for position, Leonard came face to face with his nemesis, took a step to the left and swung a punch into the side of Atileo’s head.
The bouncer retaliation was from a right arm to his assailant and – going forward – landing on top of Leonard falling backwards.
The patron was ambulanced unconscious to the Royal Hobart Hospital where he underwent an emergency craniotomy.
Leonard was an inpatient for 40 weeks including two months in the intensive care unit and 7 months in a hospital rehabilitation unit.
In 2017 he filed proceedings in the Tasmanian Supreme Court against the bouncer, his employer SL Security Pty Ltd, the nightclub and its manager.
In contest before Acting Justice David Porter was whether Atileo’s right arm swing was a punch or a push and whether it was to the patron’s shoulder or to his head.
After examining CCTV vision and hearing several witness accounts, the judge ruled that the security guard had “punched the plaintiff rather than pushed him, and the punch connected with his face”.
Atileo contended however that the punch was in the course of self-defence – by reason of which his action should be excused – because he believed he needed to use force to defend himself against the patron’s aggression and that the force used was reasonable.
He was taken in cross examination to the various defensive and negotiation techniques he had learned in the course of obtaining his Security Operations Certificate.
He acknowledged they included an obligation “not to use undue force” in the course of his duties but overall had a poor recollection of the various prescribed measures of confrontation avoidance.
Taking into account “the plaintiff’s level of intoxication as against the defendant’s sobriety” and that CCTV evidence appeared to show him launching himself towards the patron rather than losing his balance, Justice Porter declined the bouncer’s plea that he believed he needed to act in self-defence.
“In my view, it is much more likely that the defendant’s response was a retaliatory one triggered by being punched to the side of the head, in the context of the accumulated aggravation caused by the plaintiff’s earlier conduct,” he concluded. “The defendant could very easily have stepped backwards and controlled any further aggression”.
But even had Atileo genuinely believed he needed to apply force in self-defence, the force was – in the judge’s view – “not proportionate in the circumstances”.
Leonard thus defeated the self-defence argument but had other legal hurdles that he needed to clear.
The security company asserted the patron could not be awarded any damages because, at the time of the incident that resulted in his injury he was “engaged in conduct that constitutes a serious offence”.
The judge rejected the contention that Civil Liability Act s 6 (1) applied because Leonard was not engaged in any illegal conduct at the moment he was struck.
He observed – by analysing NSW and Queensland decisions on their analogue provisions – that the section only applied if the injured person had been engaged in the illegal conduct at the time of the incident. If such conduct was “separated by mere seconds” from the commission of the tort, its application was avoided.
Leonard ought to have appreciated though, that he was risking his own safety by his return to the scene to continue the confrontation and throwing a punch. The judge apportioned 20% of fault for his injuries to Leonard himself.
That said, the patron argued that his damages to be assessed according to the common law, without regard to the artificial damages restrictions imposed by Tasmania’s Civil Liability Act.
Justice Porter agreed that because Atileo – on the balance of probabilities – intended to injure as opposed to simply to shock or startle his antagonist into a reduction of aggression.
CLA s 3B(1)(a) was thus applied so as to disengage the legislative constraints on damages.
Turning to quantum, competing expert evidence left the court to conclude that the plaintiff’s damages should be assessed over a reduced life expectancy up to age 68.
“He will have to cope with his disabilities and changed life for some three decades hence,” noted the judge.
General damages were assessed at $350,000 at common law.
Future attendant care was allowed at $8,500,000 and loss of earning capacity (past & future) at $1.5 mil.
The total came in at $13.7 mil which when reduced by 20% was reduced to $10.9 mil. A further sum of $1.55 mil was allowed for administration costs.
The total lead security company’s insurer must pay is in the vicinity of $12.5 million. The claims against the nightclub and its manager were withdrawn prior to the trial.
The funds will be held by the Public Trustee of Tasmania to invest and apply for Leonard’s care over his life time.
Categories: Entertainment venue injury