In this case an employer was held vicariously liable for the
actions of a security officer/bouncer who broke the Plaintiff's
leg whilst 'assisting' police during his arrest. The
judgment discussed a number of issues, including whether a battery
had occurred and the statutory defences which exist for people who
injure others whilst helping police. However, this case note
focuses on the award of quantum given that no damages were awarded
for future economic loss.
The Plaintiff was a 24 year old backpacker at the time of the
incident, staying in a Brisbane backpacker's hostel. The
Plaintiff was drunk and angry about being evicted from his hostel
late at night. The Plaintiff remained outside the hostel and upset.
Police officers attended and issued a direction to the Plaintiff to
move on, and subsequently attempted to arrest him. The Plaintiff
struggled with the officers in the course of the arrest and a
security officer employed by the Defendant took the Plaintiff to
the ground, breaking the Plaintiff's leg.
Ultimately the Court found that the force used by the security
officer was more than "reasonably necessary force" and
his employer was held to be vicariously liable for the
Assessment of quantum
After the incident on 9 June 2009, the Plaintiff underwent
surgery when a closed fracture at the mid-shaft of the right femur
was fixed with an intramedullary rod and fixation screws. He had no
complications and no infection following the surgery.
Dr Montgomery, orthopaedic surgeon, opined that the
Plaintiff's level of impairment was 2% to 3% and minimal.
Further Dr Montgomery, whilst accepting the symptoms from some
degenerative changes in the Plaintiff's hip might have been
accelerated by a year, considered the Plaintiff should have been
able to return to any kind of work within 6 months and lead a
completely normal life.
When the Court was assessing economic loss several factors were
previous arrests for conduct related to binge drinking;
a work history of only part-time and predominantly call centre
a poor work ethic.
In 2007, the Plaintiff completed a one year bricklaying course
and undertook some work for bricklayer friends. In 2008, he
enrolled to do another year long course in construction but ceased
the course in February 2008 and undertook infrequent work for a
friend as a labourer. At this stage he was predominantly doing call
centre work until heading to Australia in October 2008 with a 12
month visa where he planned to continue to do "event set
up" work and other odd work until his visa expired in
The Plaintiff submitted that he had lost the opportunity to
pursue bricklaying for which he was suited and that after the
incident, bricklaying was too physical for him. He had attempted to
complete two days of bricklayer labourer's work but was too
slow and did not continue with that job. The Court considered there
was no evidence that the Plaintiff would have been able to retain
work at that site beyond the two days or that the employment
conditions in England from 2010 and onwards had been such that the
Plaintiff could have obtained bricklaying work, even if he had
sought it. The Plaintiff's less than impressive prior
employment history and the expert medical evidence which supported
his ability to return to work resulted in an award of just $6,000
for past economic loss.
As to future economic loss, the Plaintiff submitted that as a
result of the injury he had lost the opportunity to pursue
bricklaying and that as such, a global sum of $60,000 would be
appropriate. The Court rejected the Plaintiff's submissions.
The Court accepted the evidence of Dr Montgomery and found that as
the Plaintiff's earning capacity was not impaired, a
"nil" damages award for future economic loss was
This decision is noteworthy given the Plaintiff's relative
youth and the fact that he was assessed as suffering from a
permanent impairment as a result of the incident. Some might see
these two factors as establishing an automatic entitlement to some
global award for future economic loss. However, the Court was not
prepared to make any award for future economic loss where Dr
Montgomery considered the Plaintiff would be able to return to work
and lead a completely normal life.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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