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A patron’s injury compensation win against a glamour beachside restaurant venue and its security guard provider for not intervening to prevent a bar assault by an unruly guest has been stayed pending an appeal.
Instagram and OnlyFans influencer Clinton Chadwick arrived with two friends at the Bucket List Bondi Beach Club around 6pm on the last Friday before Christmas in 2017.
On entry to the ritzy premises a very inebriated and behaving badly Stephen Martin verbally antagonised the trio with comments about Chadwick’s appearance and the tattoos his group had on display.Chadwick gave Martin a push. A little later he attempted to punch him only to provoke a response in which Martin struck him with a bar stool unconscious to the ground and laid further blows on his head while he was still down for the count.
The influencer sought compensation injury for his injuries and to his “brand” from the establishment and the security organisation alleging they should have taken precautions to ensure that Martin and his rowdy friends were controlled or evicted from the premises before the assault took place.
They denied liability on the basis that such violence was not foreseeable in their genteel family-oriented restaurant.
Justice Michael Elkaim agreed that the premises held a restaurant licence but observed from CCTV footage that food was only occasionally being served and there was “scant evidence of eating”.
The risks of violence associated with alcohol use were – the judge observed – well-known and licensees’ duties include the minimisation of harm associated with misuse and abuse of liquor.
The higher level of duty owed to patrons arose out of the permission they held to sell liquor upon their premises.
Violent outbursts were clearly foreseeable said the Zambian born judge, given “it was full of young people drinking alcohol [and] was far from a placid restaurant environment”.
It followed that the “not insignificant” risk of harm was had to be mitigated by monitoring alcohol consumption and maintaining “the peacefulness of the premises”.
Mere engagement of security guards was of itself an acknowledgement by the venue of that risk and the need to take precautions.
Martin – who was not sued – swore that before arriving at the Beach Club he and his friends had in fact been evicted from the German pub across the road.
“On a scale of one to ten with one being sober and ten being as drunk as I ever have been in my life,” Martin – who was called by Chadwick to give evidence in his support – explained from the witness box. “At the time of the incident I was very drunk, maybe an eight or nine, too drunk to be there really”.
Not to be outdone, the defendants contended that no matter how intoxicated Mr Martin and his group might have been, they were never on notice that he displayed any propensity towards violence.
It emerged though, that a manager had asked security to “keep an eye on those guys as they had already said a few things to other people” and their boisterousness had been noticed by others in authority.
In the court’s view those factors were sufficient evidence of behaviour that should have led the defendants’ staff to take action.
The judge had no doubt that their behaviour was “precisely the type” of disruptive and aggressive conduct that should have prompted their control, restraint or eviction.
Jason Fullerton – an expert in crowd control at licensed premises – gave testimony that the level of security staffing was inadequate in that there were too few and those that were there were not properly qualified.
At the time of the incident, there was no licensed security guard in a position to intervene.
The court concluded that the venue and the security company should be equally liable for Chadwick’s injuries: “the second defendant provided inadequately qualified staff; the first defendant permitted the centre to function with inadequate security”.
Justice Elkaim also rejected the contention that because Chadwick had made the first physical contact, he was the instigator of the incident.
Both defendants asserted that the influencer had quickly returned to full economic capacity and that he was consciously exaggerating the psychological impairment he claimed.
Their neuropsychology expert Professor Richard Mattick – who administered the controversial MMPI and another so-called malingering test and whose views were preferred by the court over those of his colleague Donald Rowe – concluded he sustained no traumatic brain injury.
Orthopaedists Matthew Giblin and Professor Michael Shatwell agreed that Chadwick’s physical injuries had been transient.
Chadwick’s claim was thus primarily confined by the court to the psychological impact on his self-confidence which he contended was critical to his income earning capacity as an Instagram influencer.
“I was in the prime of my life, physically and mentally,” he swore from the witness box. “I had the energy of an Energizer Bunny and worked long hours each week to build up my business, attended the gym, and had many friends that I socialised with when I had time to do so”.
The business he referred to was Rig Fit – an activewear supply business – in which he engaged influencers (including himself) to market its products.
His Honour noted he was “certainly a very competent influencer not only influencing the sale of his activewear products, but also to influencing various persons to invest”.
The defendants argued Chadwick’s claim for loss of earning capacity was fanciful in that his business “was probably not viable”; leading up to the assault he was consuming up to 20 ‘lines’ of cocaine a week; he was dealing drugs; and he had police issues waiting to be addressed.
They produced evidence that he had earned around USD $70,000 over a two-year period since the assault by posting images of himself on OnlyFans.
The court accepted his involvement in social media was only marginally diminished by the assault and that he had participated in a bodybuilding contest. He was also making plans to visit Mykonos in the near future.
Justice Elkaim did not consider Chadwick to be overtly dishonest but thought him to be “somewhat deluded by his own image, his capacity to be a successful businessman and his perception of what his future might have been but for the injury”.
He agreed he suffered a very traumatic experience resulting in a post-traumatic stress disorder that is gradually resolving, a minor neck injury and some permanent scarring.
In addition though there had been a psychological impact on his confidence and self-esteem that affected his perception of his image that in turn damaged his “brand”.
The judge assessed his non-economic loss at 25% of a most extreme case, equating to $46,000 for general damages. He allowed a past loss of income at half average weekly net earnings of $567.50 for of 272 weeks making a total of $154,000. A “very small buffer” of $25,000 was allowed for loss of future earning capacity to make up a total assessment of $251,000.
This though was reduced for the extent to which Chadwick was himself responsible for being caught up in the event – i.e. contributory negligence – by 20% to result in a net award of just over $200,000.
On 20 March, the order for payment of damages was stayed pending an appeal that the defendants have indicated they intend to file promptly.
Chadwick v Bondi Beach Food Pty Ltd; Bondi Beach Food Pty Ltd v Crossguard Group Pty Ltd [2023] NSWSC 197 Elkaim AJ, 9 March 2023 Read case
Categories: Entertainment venue injury