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This type of litigation is getting to the point where it's just ridiculous - public liability is just going nuts in Sydney.
WHEN intoxicated teenager Joshua Fox was refused entry to the nightclub at the Peakhurst Inn, he decided to break in via the back alley.
Determined to "have a dance and party", the 16-year-old concreter walked behind the building and used his rock climbing skills to scale a 3m high wall.
Once on the roof, he unwittingly approached the on-site residence of hotel licensee Honeheke Gerald Newton, who lived there with his wife and two children.
Mr Fox told the District Court yesterday he saw Mr Newton peer through the curtains of his lounge room and he crouched down in a laundry to avoid detection.
Within seconds, Mr Fox alleges Mr Newton had switched on the laundry light and started hitting him with a baton-like object.
Mr Fox suffered a fractured forehead and fractured right eye socket, requiring surgery.
While Mr Newton was not charged with assault over the incident, Mr Fox is seeking damages of up to $750,000 from Mr Newton and the Peakhurst Inn.
It is the latest case before the courts typical of the explosion in public liability claims now costing more than $1 billion a year.
Mr Fox, now 19, is suing Mr Newton for the civil wrong of assault and battery and the hotel for negligence.
While there is no dispute against Mr Fox's right to claim, his and cases like it are coming under the scrutiny of a State Government trying to curb the number of suits and the amounts being paid.
Mr Fox alleges Mr Newton's conduct amounted to a "deliberate, high handed and violent assault and battery which exceeded their legal entitlement and was intended to cause pain, hurt and injury".
His claim alleges the assault increased Mr Fox's sense of wrong and emotional turmoil arising from his physical injuries, thereby warranting an award of aggravated damages on top of compensatory damages.
"The conduct of both defendants should be punished and a significant award of exemplary damages made so as to discourage similar conduct by others involved in the conduct of the licensed premises and the admission and exclusion of patrons or customers" it says.
Mr Newton and the Peakhurst Inn deny the allegations.
In the witness box yesterday, Mr Fox said during the incident, he was cowering on the floor, with his hands over his head, crying: "That's enough! That's enough!".
"I didn't think I was in the wrong. I was just a scared little kid," he said.
"My head was down and there was blood everywhere". Mr Fox said Mr Newton also slapped his face and called him a c . . . t.
He denied suggestions that he had voluntarily engaged in a struggle with Mr Newton and had "come off second best".
Mr Fox's mother, Michelle Lee Kilby, is also suing the defendants for up to $750,000, claiming she suffered nervous shock as a result of her son's injuries.
She told the court on the night of the incident, April 23, 1999, her son had attended a party across the road from the hotel.
She said she received a call from one of his friends about 12.30am to say Joshua was in trouble.
She went to the Peakhurst Inn, where she saw two detectives escort her son from the hotel to the Hurstville police station.
Ms Kilby said she did not get a good look at her son's injuries until they got to the St George hospital later that morning.
"Blood was coming out of his eye. His hands were over his eye, covering his face".
"I felt terrible. I felt a bit out of control actually. I was sweaty, I was having nightmares. I actually relived what happened to Joshua".
The hearing before Judge John McGuire continues.
Let's overlook the fact that he broke into the place and assume that the owner of the place used excessive force in subduing what he thought was an intruder who was sneaking around. To ask for $750,000???
[ 05-08-2002, 07:17 AM: Message edited by: Memnoch ]
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