Brilley v Presidential Security Services of Australia Pty Ltd

Civil Liability Act 2002 LEGISLATION CITED: Civil Procedure Act 2005 Crimes Act 1900

Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 Leotta v Public Transport Commission of NSW (1976) 9 ALR 437 Ghunaim v Bart [2004] NSWCA 28 MBP(SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657 Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204 CASES CITED: Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536 R v Piltz [2004] 59 NSWLR 538 State of NSW v Ibbett [2005] NSWCA 445 State of NSW v Riley [2003] NSWCA 208 State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1996-1997) 189 CLR 146 Uren v John Fairfax & Sons Pty Ltd [1996] HCA 40; (1966) 117 CLR 118 Varmedja v Varmedja [2008] NSWCA 177 Zorom Enterprises Pty Ltd v Zabow & Ors [2007] NSWCA 106

PARTIES: Clinton Brilley (Plaintiff) Presidential Security Services of Australia Pty Ltd (Defendant)

COUNSEL: Mr A C Canceri (Plaintiff) Mr P R Stockley (Defendant)

SOLICITORS: CMC Lawyers (Plaintiff) Walker Hedges & Co (Defendant)

The Plaintiff brings these proceedings in tort claiming damages in respect of a count framed in battery and two counts framed in assault. The Plaintiff suffered a gunshot wound inflicted upon him by a security guard whilst the Plaintiff was in the course of committing a robbery.

The relevant events occurred in the early hours of the morning of Monday 23 June 2003 shortly after the Plaintiff had illegally entered the sports club premises with the intention of committing a robbery in the company of two unnamed accomplices. The Plaintiff's claim centred around three alleged incidents.

The first incident concerned the circumstances in which the Plaintiff was shot by a security guard employed by the Defendant. The liability of the Defendant in respect of the first incident is determined by whether the security guard acted reasonably in self-defence when he shot the Plaintiff.

The second incident concerned a consideration of whether or not the security guard made a further unsuccessful attempt to shoot the Plaintiff as alleged. There is a factual dispute as to whether the second incident occurred.

The third incident concerned a consideration of the circumstances in which the security guard discharged a shot at the vehicle in which the Plaintiff and his accomplices were making good their escape from the scene of their crime.

The Plaintiff's entitlement to damages was contested by the Defendant. The evidence raised credit issues and a consideration of Pt 7 of the Civil Liability Act 2002.

On the eve of the hearing, pursuant to s 56 of the Civil Procedure Act 2005, I directed the legal representatives of the parties to meet and prepare a statement of the issues calling for decision in the proceedings. The resulting agreed statement listed 14 such issues and this was marked MFI "3". These issues have been distilled and re-arranged into the following convenient formulation: (a) Was the security guard " the directing mind and will " of the Defendant so that his acts should be considered to be the actions of the Defendant company;

(b) In respect of the first incident: (i) When the security guard shot the Plaintiff whilst they were both in the foyer of the club, was the security guard acting in self-defence for the purposes of s 52 of the Civil Liability Act 2002;

(ii) If self-defence is not established, was the security guard's response unreasonable and if so, are the circumstances of the case exceptional and would a failure to award damages to the Plaintiff be harsh and unjust;

(iii) If self-defence is not established, did the conduct of the security guard constitute an offence for the purposes of s 54(2) of the Civil Liability Act 2002;

(c) In respect of the second incident: (i) After the Plaintiff had been shot, did the security guard point his gun at the Plaintiff and attempt to shoot him again and if so, at that time was the security guard acting in self-defence for the purposes of s 52 of the Civil Liability Act 2002;

(ii) If the second episode of pointing the gun at the Plaintiff is established and if self-defence is not established, was the security guard's response unreasonable and if so, are the circumstances of the case exceptional and would a failure to award damages to the Plaintiff be harsh and unjust;

(iii) If self-defence is not established, did the conduct of the security guard constitute an offence for the purposes of s 54(2) of the Civil Liability Act 2002; (d) In respect of the third incident: (i) When the security guard discharged his firearm in the direction of the vehicle being driven by the Plaintiff as it left the car park of the club premises was the security guard acting in self-defence for the purposes of s 52 of the Civil Liability Act 2002;

(ii) For the purposes of s 54(1) of the Civil Liability Act 2002 did the Plaintiff's conduct materially contribute to his injury, loss and damage;

(iii) If self-defence is not established, was the security guard's response unreasonable and if so, are the circumstances of the case exceptional and would a failure to award damages to the Plaintiff be harsh and unjust;

(iv) If self-defence is not established, did the conduct of the security guard constitute an offence for the purposes of s 54(2) of the Civil Liability Act 2002; (e) On an assessment of damages, in respect of each incident, what damages if any, should be awarded for; (i) Compensatory damages in their various components; (ii) Exemplary damages. (iii) Aggravated damages;

I summarise the conclusions I have reached. The security guard should be considered to be the directing mind and will of the Defendant company and his actions should be considered to be those of the Defendant. In the first incident the security guard's response to the circumstances was reasonable. His actions which resulted in the shooting of the Plaintiff were taken in self-defence. The Plaintiff's version as to the occurrence of the second incident should not be accepted. In respect of the third incident, whilst I have found that the security guard did not act in self-defence when he shot at the departing vehicle then being driven by the Plaintiff, I have found that he shot at the vehicle with the intention of stopping or slowing the vehicle in order that the Plaintiff and his accomplices could be apprehended. In doing so he did not commit an offence within the meaning of Pt 7 of the Civil Liability Act 2002. In these circumstances the Plaintiff's action must fail. In the event that the action was successful, I would have assessed damages in the sum of $647,725.50.

Before identifying the material facts, by way of background, I will outline and describe the relationship of the respective parties, the premises where the relevant events occurred, the formulation of the proceedings, the procedural history of the matter, an overview of the evidence and the applicable legal principles.

The Plaintiff, Clinton Brilley was born on 26 October 1982. On 23 June 2003, he was aged almost 21 years. At the time of the hearing he was serving a custodial sentence of imprisonment for an armed robbery offence in respect of which he is due for release in June 2012. His antecedents include earlier periods of imprisonment. The events giving rise to the sentence currently being served preceded and were unrelated to the events that are the subject matter of these proceedings.

The Defendant company, Presidential Security Services of Australia Pty Ltd was at all material times duly incorporated. Mr David Arthur Bingle is the sole director, shareholder and employee of the company. The business of the company was to provide security guard services under contract to those requiring such services. The company was sub-contracted to provide security services to the Earlwood Bardwell Park Sports Club. Nothing turns on those sub-contractual arrangements.

The club premises are situated in Earlwood and comprise a large car park area and a club building which incorporates a foyer which in turn leads to a bistro and a separate recreation area including an area where licensed poker machines are kept. The premises were the subject of previous episodes of breaking, entering and stealing. In one such earlier episode that occurred in February 2003, whilst he was guarding the premises, Mr Bingle was confronted and was disarmed by a number of assailants who then stole his licensed Glock pistol which was never recovered. On the morning in question Mr Bingle had a replacement licensed revolver.

On the morning of the events which concern these proceedings the Club had kept the poker machine takings from the previous evening on the premises. Mr Bingle was on duty guarding the premises when the Plaintiff and his accomplices forcibly broke into the premises with the intention of stealing poker machine takings.

The events that gave rise to these proceedings occurred on 23 June 2003. The proceedings were filed on 8 November 2005. A hearing on the merits took place before another Judge in the District Court in May 2007. Following the delivery of the first judgment a successful appeal followed which resulted in an order for a new trial: Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204. The re-trial of the proceedings took place on 10, 13 and 16 February 2009.

By leave, the Plaintiff proceeds upon a Further Amended Statement of Claim filed in court at the commencement of the hearing. The amendments arose in response to issues that had emerged in the appeal proceedings in respect of the first trial. The proceedings are formulated to comprise a count framed in the tort of battery and two counts framed in the intentional tort of assault. The Plaintiff relies upon three separately identified incidents to make his case. A previous count framed in negligence was formally abandoned by the Plaintiff.

In respect of each incident the Plaintiff makes a claim for compensatory damages in respect of various component heads of damage as well as claiming exemplary and aggravated damages.

The Plaintiff's claims involve the intentional torts of battery and assault. As the Plaintiff's claim is framed in the intentional torts of battery and assault, any damages that may arise fall to be assessed according to conventional common law principles unaffected by the restrictions that have otherwise been imposed upon claims made at common law : s 3B(1) of the Civil Liability Act 2002. However, this is subject to Pt 7 of the Civil Liability Act 2002 ss 52 - 54 which relate to the issues of self-defence and the recovery of damages by criminals.

S 54(1) of the Act operates to prevent a court from awarding damages to a claimant in circumstances where the conduct of the claimant constitutes a serious criminal offence and that conduct contributes materially to the claimant's injury. That provision does not apply where the conduct of the Defendant constitutes an offence: s 54(2) of the Act.

These provisions are subject to a number of statutory qualifications.

First, no liability is incurred where a Defendant acts in self-defence in circumstances where the conduct of the claimant was unlawful: s 52(1)(a) of the Act. Secondly, in the circumstances of this case, self-defence operates as a defence where the Defendant believed it was necessary, amongst other things, to defend himself or to protect property from unlawful taking, damage, destruction or interference or to remove a person committing criminal trespass, provided the conduct of the Defendant was a reasonable response in the circumstances as the Defendant perceived them: s 52(2) of the Act.

In addition to the defences provided by s 52, damages are not awardable to a claimant notwithstanding that the action taken by the Defendant in self-defence does not amount to a reasonable response in the circumstances as the Defendant perceives them unless the circumstances of the case are exceptional and a failure to award damages would be harsh and unjust : s 53 of the Act.

Before setting out the facts it is necessary to briefly review the course and conduct of the re-trial.

The parties adopted the practical expedient of tendering the transcript of the evidence that was given in the first trial together with the exhibits. In the order in which this documentary evidence was tendered, it comprised the following material : Plaintiff's Exhibits + Exhibit "A" - Transcript of the first trial; 22 May 2007 to 24 May 2007; + Exhibit "B" - Copy of Blue Appeal Book in the appeal proceedings; + Exhibit "C" - Bundle of Plaintiff's Medical Evidence; + Exhibit "D" - Schedule of Plaintiff's Out-of-Pocket Expenses; + Exhibit "E" - Judgment NSW Court of Appeal : Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204 + Exhibit "F" - Video footage inside the club foyers; + Exhibit "G" - Video footage of the club car park comprising three DVDs; Defendant's Exhibits + Exhibit "1" - Plan of the premises comprising 2 pages; + Exhibit "2" - Black Appeal Book in the appeal proceedings, incorporating the evidence of the Plaintiff, his mother and Mr Bingle; + Exhibit "3" - Probation and Parole Officer's Report - Ms Joanne Stapleton, report dated 21 October 2004.

Oral evidence was given by both the Plaintiff and by Mr Bingle to supplement the transcript of the evidence they each gave at the first trial.

Pre-trial Directions made pursuant to section 56 of Civil Procedure Act 2005

In addition to the direction aimed at identifying and clarifying the issues, the parties were also directed to prepare a draft statement of the agreed facts. That statement was marked "MFI "4". The documents produced by the parties in compliance of these directions helpfully served to narrow the areas of dispute and reduced the level of complexity of the hearing. I have drawn upon the statement of agreed facts in arriving at my findings of fact.

Application for amendment to particulars of damage to claim loss of earning capacity

On the final day of the re-trial, before the commencement of final addresses, the Plaintiff made an application to amend the particulars of claim to seek an amendment to claim future loss of earning capacity. The proposed amendment arose from a discussion concerning the content of medical reports that related to the Plaintiff's disabilities. The proposed amendment sought an award of a globally assessed buffer or cushion for economic loss rather than an identifiable weekly sum to be projected using the future discount tables to achieve a capitalised sum with identifiable components for calculation.

In giving the Plaintiff's application due consideration the competing interests of the parties had to be balanced. One consideration was the interests of justice to the Plaintiff's case to afford him an opportunity to advance arguments to reflect the content of the tendered evidence : Leotta v the Public Transport Commission of NSW (1976) 9 ALR 437. On the other hand the Defendant claimed it would be prejudiced as to costs if the Plaintiff were given leave to amend in the manner sought. The Defendant also claimed it would need an adjournment to re-frame its forensic approach to contesting the Plaintiff's claim. This course would have necessarily involved further cost and delay whilst particulars were sought and provided, whilst medical examinations of the Plaintiff and other investigations were pursued, noting that such examinations would have involved increased cost and difficulty because the Plaintiff resided in prison. A further claimed prejudice was argued in that at a resumed hearing a more extensive cross-examination of the Plaintiff would also be required and that the further costs associated with such a course would be an undue burden on the Defendant in the circumstances of the case.

I had regard to the fact that this was the second trial of the case and I also had regard to the provisions of s 56 of the Civil Procedure Act 2005 which require that effect be given to the overriding purpose of facilitating a quick, just and cheap resolution of the proceedings. Well settled authority has consistently emphasised the need for the considerations of justice to the parties to take precedence over procedural matters of case management which includes issues of particulars where such considerations could be appropriately addressed by a costs order : State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1996-1997) 189 CLR 146.

That decision was more recently considered and distinguished in the context of an application of the overriding purpose rule arising under s 56(2) of the Civil Procedure Act 2005 : Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 per Spigelman CJ at [28] - [29]. In Dennis the requirements of s 56(2) were explained to be mandatory to the extent that they have overtaken the principles enunciated in JL Holdings. In Dennis the court's mandatory duty under s 56(2) is to give effect to the overriding purpose of facilitating a quick, just and cheap resolution of the real issues in the proceedings. This has been declared to be a significant qualification on the power to grant amendments. I followed the approach explained in Dennis and rejected the application because in my view, if it was granted, undue delay and expense would have been occasioned to both parties, contrary to the requirements and spirit of s 56(2). Notwithstanding the rejection of the application, I have assessed damages for future loss of earning capacity in case it is ultimately shown that the rejection of the amendment was erroneous.

At about 4.00am on Monday 23 June 2003, whilst wearing T-shirts and balaclavas to cover their faces in order to avoid recognition, the Plaintiff, together with two other accomplices, committed the offence of breaking and entering the club premises with the intention of stealing poker machine takings. They did so whilst Mr Bingle, the armed security guard employed by the Defendant under contract to the club, was on duty in the course of his employment inside the premises.

These persons had driven to the club premises in a Subaru WRX vehicle and had parked it in the club car park. After alighting from their vehicle one of these persons who was wearing a balaclava head covering approached another parked car that belonged to Mr Bingle. From inside the club Mr Bingle observed the activities of the Plaintiff and his accomplices in the car park area through a window in the premises. Mr Bingle then observed this person walk over to his car and peer into it and then walk over to a window of the club to peer inside the club.

On first realising that there were intruders in the car park Mr Bingle initially crouched down in order to avoid being seen. The Plaintiff then approached the locked door of the foyer to the club premises and forced it open with a small dark coloured crow bar which he held in his hand. At this time the foyer of the premises was lit but not brightly so.

It is relevant to relate some earlier background facts which serve to assist in understanding how the actions and intentions of Mr Bingle should be viewed and characterised on the morning in question for the purposes of Pt 7 of the Civil Liability Act 2002.

Mr Bingle had been carrying out his work as a security guard at the premises for some time. In that capacity he had a background awareness of the fact that on previous occasions there had been a number of robberies at the club. In fact on one such occasion 5 months earlier, in February 2003 he had been on the premises in the course of his duties as a security guard when he was approached by assailants and was disarmed of his own Glock pistol which was then stolen from him. I find that these background events formed part of his consciousness and thinking at the time of the incident which is the subject of these proceedings. I find that Mr Bingle was acutely aware of this prior history of robberies at the club at the time he undertook his actions on the morning of 23 June 2003. I find that at the time the Plaintiff and his accomplices had broken and entered the premises Mr Bingle had good reason to be concerned that these persons were armed even though he did not know this for certain.

On behalf of the Plaintiff it was suggested to Mr Bingle that instead of crouching down to avoid being seen by the Plaintiff and his accomplices he should have made himself prominently visible for deterrent effect. It was further suggested that Mr Bingle decided to lay in wait until the breaking and entering had actually occurred as some kind of entrapment because he knew that a valid arrest could not have been effected or a shooting justified unless an offence had been committed. It was further suggested that Mr Bingle lay in wait in order to be able to shoot at the intruders using the element of surprise. Whilst Mr Bingle acknowledged his understanding that an offence would not have been committed by the Plaintiff and his accomplices without the perimeter of the premises being breached, he denied these suggestions and instead maintained that he had hidden himself out of view hoping the intruders would not break into the premises and would in fact go away.

I accept Mr Bingle's evidence in this regard. I also find that Mr Bingle was justified initially staying out of sight because of the real possibility that the intruders were armed. I find that in the circumstances, even though the foyer was dimly lit, it would have been most imprudent of Mr Bingle to needlessly place himself on prominent view at that time, somewhat akin to a goldfish on display in a bowl.

Some of the subsequent events in question were captured on DVD time lapse or freeze frame video footage that was taken from fixed security cameras located within the premises.

It was common ground that once the Plaintiff had broken into the premises he then proceeded to enter the foyer of the club premises and walk directly towards the poker machine area. Mr Bingle said that at this time he then stood up and said words to the effect "Halt. Security." Mr Bingle said he gave two verbal warnings. He said that this occurred at a time when the Plaintiff and his accomplices were moving towards him. Mr Bingle said he was in fear of being killed at that time. It was in these circumstances that Mr Bingle took his Smith & Wesson magnum .357 revolver, pointed it in the Plaintiff's direction and then discharged the firearm. He said he did so with the intention of stopping the Plaintiff because the Plaintiff had continued to move forward towards him without heeding the warnings to halt. The discharged bullet struck the Plaintiff in the left side or flank, passed through the muscles of the left flank without penetrating the abdominal cavity and made its exit in the midline of the Plaintiff's lower back. Fortunately for the Plaintiff the exit wound was slightly to the left of the spinal column. In the course of this wounding the Plaintiff fell down onto the floor.

The Plaintiff claimed that Mr Bingle did not issue any verbal warning to halt. Instead, the Plaintiff claims he was peremptorily shot without any warning. He claims he entered the premises, heard two gunshots and then fell to the ground. He said it all happened very quickly. The next thing he remembers is lying on the floor near a desk near the foyer. The Plaintiff's evidence did not describe the physical or emotional effects of the first incident beyond the description I have summarised. As a consequence of being shot in such circumstances the Plaintiff claims this was an actionable battery to his person.

It was alleged on behalf of the Plaintiff that he had been shot in the back and as a result had fallen face forward onto the front portion of his body and then onto his right side. The state of the evidence does not permit a reliable reconstruction of the dynamics and kinetics of the Plaintiff's fall to support such a conclusion. Further, the medical evidence does not support the contention that the entry wound was in the Plaintiff's back. In my view the patterns of distribution of blood stains on the Plaintiff's T-shirt, which were relied upon by the Plaintiff to argue that the entry wound was in the back, does not permit a reliable conclusion to be made in support of the Plaintiff's contention. The reason for this view is apparent from my findings as to later occurring events following the occurrence of the third incident. The Plaintiff seeks to support his contention that he was shot in the back by reference to the floor plan of the premises and the relative location of the foyer, poker machine, and bistro areas within the premises. In my view that argument is flawed because of the dynamics of the movement of the parties and uncertainties over the directions in which they were facing at any given time. I prefer and accept the evidence of Mr Bingle that the Plaintiff was shot whilst he and the Plaintiff were facing each other. I accordingly reject the contention that the Plaintiff was shot in the back in the sense of there being a suggestion that the entry wound was in the back so as to indicate he was shot from behind.

After the Plaintiff had been shot in the first incident, his two accomplices continued to move towards Mr Bingle. In this continuum of events Mr Bingle proceeded to discharge a further five bullets from his revolver in the direction of these accomplices who were moving towards him. Mr Bingle was concerned, I find reasonably so, that he was in danger of being attacked at this time. After Mr Bingle completed his firing of rounds at the accomplices they turned and left the premises and then proceeded to enter the waiting Subaru WRX vehicle which they had left parked in the car park of the club premises. During these events the Plaintiff rose to his feet and proceeded to follow his accomplices to the vehicle. There is a dispute over what next transpired during this sequence of events and this dispute forms the basis of the claimed second incident.

An issue emerged over precisely where in the car park the getaway vehicle was parked and another issue was raised as to whether Mr Bingle had drawn an accurate plan of the area and the position of the vehicle when the police had asked him to do so. In my view it is not necessary for me to determine the position of the parked car or the accuracy of the plans of the premises as I consider those issues have little if any bearing on the resolution of the disputed facts.

The Plaintiff did not actually recall being shot. He claims he heard more shots being fired and he then got to his feet and found himself facing Mr Bingle who had swivelled around to face him and then raised his firearm and pointed it at the Plaintiff's upper body, head or chest area from a distance of about 2 steps or 2 metres. The Plaintiff claims Mr Bingle then made several unsuccessful attempts to discharge his spent firearm by pulling the trigger whilst still pointing the weapon directly at the Plaintiff. The plaintiff claims the firearm was still being pointed at his chest and upper body at this time.

The Plaintiff claims that before Mr Bingle attempted to discharge the weapon in the claimed second incident he, that is, the Plaintiff, had both his hands raised in the air and had said to Mr Bingle words to the effect that he was unarmed and requested that Mr Bingle not shoot him again. The Plaintiff claims he said this before Mr Bingle pressed on the trigger of his revolver two or three times to produce the several clicks that were audible to the Plaintiff. The Plaintiff claims that in this second incident he became terrified that he would be shot dead. The Plaintiff claims that this event constituted an actionable assault. In support of the contention that he had his hands in the air the Plaintiff points to frame 04:21:55 on the club's security video footage comprising Exhibit "F".

Mr Bingle denies this alleged second incident occurred in the manner described by the Plaintiff. He claims that during the course of discharging all six rounds of ammunition in the direction of the Plaintiff and his accomplices, after he had shot the Plaintiff and whilst he was still firing the remaining rounds at the accomplices he heard a clicking of the revolver which indicated to him that his ammunition had been spent. The Defendant alleges that this clicking occurred whilst the Plaintiff was still laying on the floor and at a time when the gun was not being pointed in the Plaintiff's direction. He then fumbled and proceeded to reload his revolver. He said that whilst he did so the intruders, including the Plaintiff, took their opportunity to flee and to make their way to their waiting vehicle.

The Plaintiff's version of this aspect of the events is that when he realised that Mr Bingle's gun had run out of bullets and whilst Mr Bingle was attempting to re-load his revolver he "just took off" whilst yelling "why did you have to shoot us for". The Plaintiff said he then took the opportunity to run past Mr Bingle and then run to the parked vehicle.

After the Plaintiff and his accomplices had safely entered the getaway vehicle, they drove off towards the exit of the car park at an accelerating high speed. At this time the Plaintiff was driving the vehicle because on entering the vehicle he found one of his accomplices who was the designated driver had apparently decamped from the scene during the earlier events. The Plaintiff said he placed the vehicle into gear and drove off feeling terrified. He drove off quickly to avoid being shot again.

As the vehicle being driven by the Plaintiff sped away and towards the car park exit, Mr Bingle, who had by then managed to reload his revolver with just one round of ammunition, raised the firearm and pointed it towards the speeding vehicle. He then discharged that single round by aiming it at the car that was moving away at an increasing and very fast speed. He said he had fired this single round with the intention of stopping or slowing the vehicle in order to facilitate the arrest of the occupants. At this time the police were not present however I find that Mr Bingle had the reasonable expectation that the police would be on their way because, earlier in the course of the events, when Mr Bingle was observing the approach of the Plaintiff and his accomplices, he had activated his personal security alarm which was intended to alert the police that something untoward was happening at the club and that assistance was required.

Mr Bingle was cross-examined about the number of times and at what stage he had pressed this alarm and it was suggested that his statement given to the police undermined the credibility of his account of events. I consider this attack on his credit to have failed. Clearly the police had a different focus when preparing their statements for an intended prosecution of the Plaintiff. In my view the statement prepared by the police should not be viewed as intending to deal with all the issues that could foreseeably arise in a civil trial. I am left in no doubt and therefore accept that Mr Bingle had earlier used his personal alert alarm to summon the police. In my view it follows from this that Mr Bingle had a reasonable expectation that the police would arrive at some stage without anything further being said or done by him to summon them.

The Plaintiff described how, as he drove the vehicle away from the club premises, he heard a loud bang and he then became aware of a shattering penetration of the rear windshield, consistent with the entry of the bullet that had been fired by Mr Bingle. The Plaintiff claims that when he heard the shot and heard the rear windshield shatter he received a shock or a fright and this made him fearful for his life. He claims that this constituted an actionable assault.

Whilst the Defendant conceded he fired a round at the departing vehicle he did not concede that the round he had fired had struck the rear windshield of that vehicle. The distance over which the shot was fired was estimated by Mr Bingle to be approximately two or three hundred yards. That evidence was not challenged. No photographs or other evidence apart from the Plaintiff was tendered in relation to the alleged shattered rear windshield. Mr Bingle disputed the assertion that the shot fired by him had shattered or penetrated the rear windshield of the vehicle and pointed to the fact that there were no glass fragments that would support such an assertion.

In these events, the vehicle did not stop but instead continued a little further on its journey until the appearance on the roadside of one of the Plaintiff's accomplices who had earlier decamped the scene. The Plaintiff then stopped the vehicle to pick up his remaining accomplice and he then drove on a little further before stopping a few streets away in order to check himself and his wounds. He lifted his shirt to reveal a wound on his left side. He was told he had a hole in his back. At this time the accomplice who had last entered the vehicle took over the driving and the Plaintiff moved his position in the vehicle and became a passenger. The Plaintiff was bleeding from his wounds all this time. It is for these reasons I find myself unable to conclude from the distribution and appearances in the photographs of the Plaintiff's blood stained T-shirt that he was shot from behind as he has alleged to be the case.

The facility for drawing the conclusion from the blood stains as was contended for by the Plaintiff may have been different if the Plaintiff had remained lying face down on the floor after being shot and had remained in that position until the back of the T-shirt he had been wearing had been photographed. Instead, the course of his movements after being shot and during the course of his driving of the car would, on a commonsense analysis indicate that such events would have undoubtedly influenced the blood stain patterns on his T-shirt especially due to the action of leaning back on the seats, both as a driver and then as a passenger. In these circumstances I am not prepared to speculate from the photographs of the appearance of the Plaintiff's blood stained T-shirt to infer or to find that the Plaintiff was shot from behind. On the contrary, I accept the evidence of Mr Bingle as to the circumstances of the shooting and I find that he shot the Plaintiff whilst they were facing each other.

Within the ensuing minutes the Plaintiff experienced what he described as a burning pain in the left and middle areas of his back. He was also aware of a worsening throbbing shooting like pain in his back. He was then driven to Canterbury Hospital where his accomplices had apparently left him near the entrance in order that he make his own way into the hospital to seek treatment for his wounds. At that hospital he was triaged, assessed, examined, x-rayed and stabilised before being subsequently transferred to Royal Prince Alfred Hospital for further treatment, including surgical treatment of his gunshot wounds.

The chronology of the Plaintiff's hospital treatment is found in the Plaintiff's medical records which I will analyse in closer detail as part of the process of assessing the credibility of the Plaintiff's evidence.

On 27 June 2003 the Plaintiff was discharged from Royal Prince Alfred Hospital to convalesce at the home of his parents. When he was discharged home he had drainage tubes remaining in situ for follow-up care by his family doctor. He continued to experience severe pain and was given Panadeine Forte and Codeine. Following his discharge from hospital the Plaintiff could not move very much for several weeks. His sleep was disturbed especially when he rolled onto his wound. He experienced recurring dreams about being on the premises and he dreamt of being shot.

After some weeks his surgical wound became infected and he was a aware of an unpleasant smell emanating from the wound accompanied by copious amounts of pus draining into the drainage bags that were attached to him.

He then returned to Royal Prince Alfred Hospital on 14 July 2003 and underwent further surgical treatment consisting of debridement of his surgical wounds for wound breakdown due to infection. Following discharge from his second hospital admission on 21 July 2003 he continued to take Panadeine Forte on a daily basis for about three months.

The Plaintiff described how, because he felt sick as a result of his withdrawal from pain killing medication, in January 2004 he attempted to commit suicide by slashing his wrists after taking some cocaine at the house of a friend. At the time he described having a lot of things on his mind, including the recurring dreams about the incident and because he was stressed about what might happen to him if he was arrested for the crime he had committed.

Subsequently, on 29 January 2004 the Plaintiff was arrested and charged with the offence of aggravated break enter and steal. On 22 October 2004 he was convicted of this offence and he was sentenced to a term of imprisonment that expired on 28 July 2005 at which time he was released.

The Plaintiff is presently serving a sentence of imprisonment in respect of an unrelated robbery that occurred before the events that have given rise to this claim. The events which are the subject of these current proceedings occurred whilst the Plaintiff had been released on bail in respect of that other matter.

The Plaintiff's residual disabilities consist of the two areas of indurated scarring at the wounding and subsequent operation sites on his left flank and lower back.

The Plaintiff continues to have physical problems emanating from the incidents in question. This consists of pain in the area of his wounds. He was taking antidepressant medication for some time but this seems to have ceased some time ago. He continues to take Panadeine tablets every night. He also takes Brufen tablets for the back pain he experiences. This occurs sometimes daily for a week or so and at other times he experiences it several times per week.

When the Plaintiff was examined by Dr R L Thompson on 25 October 2005 he was found to have a zone of dense area of hyperaesthesia and hypersensitivity in the area of his healed wounds. He recorded a history of disturbed sleep because he cannot sleep on his back. Dr Thompson noted reduced standing tolerance.

Dr Thompson thought the Plaintiff was severely limited with regard to work because he was only suited to heavy labouring type work. Dr Thompson thought the Plaintiff was only suited for light duties and could not undertake unrestricted duties and was therefore at considerable employment disadvantage. Dr Thompson also noted the presence of psychological problems and nightmares. Dr Thompson thought the prognosis for the Plaintiff's problems was generally guarded.

On 20 October 2005 the Plaintiff was examined by Dr Terry Kwong, a consultant physician and rheumatologist, who recorded a history of constant low back pain, pain in the left flank and paraesthesia in both feet. Dr Kwong was of the opinion that the Plaintiff was not able to return to labouring work or work requiring lifting, bending and twisting of his trunk.

On 3 March 2006 Dr John Lawson, a consultant physician, examined the Plaintiff. He recorded that the Plaintiff was distressed about his scarring which was associated with muscle cramps and sensory changes around the wound sites. He confirmed that the Plaintiff remained restricted in his capacity to perform heavy aspects of physical work and was vulnerable to aggravation of back pain with some activities. He also noted some continuing psychological problems. When Dr Lawson saw the Plaintiff again in December 2008 he noted the presence of depression and the need for a prolonged programme of psychiatric treatment.

On 10 April 2006 Dr A P McClure, a consultant psychiatrist, examined the Plaintiff. Dr McClure took a history that the Plaintiff's motive in committing the offence was to obtain money to support his alcohol and cocaine habits, noting the habit was mainly alcohol. Dr McClure took a history that in the alleged second incident the Plaintiff expected he would die. Dr McClure did not record any of the Plaintiff's immediate cognitive reactions to the first and third incidents. Overall, the Plaintiff gave Dr McClure a history of regular dreams and nightmares. Dr McClure took a history that the Plaintiff was using cocaine on a daily basis within 2 months of the shooting. This was accompanied by paranoid thoughts, hallucinations with exacerbation and intensification of vivid and frightening dreams. Dr McClure noted the Plaintiff's suicide attempt prior to his arrest. Dr McClure summed up the Plaintiff's experience of having undergone a fear inducing experience and a subsequent Post-Traumatic Stress Disorder, the acute phase of which has settled but leaving a remaining mild depression.

On 16 March 2006 Dr R Oakshott, a rehabilitation specialist, examined the Plaintiff and formed the view that the Plaintiff had reached medical improvement. He was of the opinion that the Plaintiff was fit for full time work without restrictions indefinitely in any job he so desired. On reviewing Dr Oakshott's opinion it is clear that the Plaintiff gave him a most glib and limited account of his symptoms. This may be why Dr Oakshott's opinion is at variance with the other opinions I have cited. This may or may not have been due to the methadone the Plaintiff was taking. Since Dr Oakshott's opinion is based on a very sparse history I have formed the view that in this instance the opinions of the other medical examiners provide a more reliable indication of the Plaintiff's work limitations in this instance.

It is clear from the foregoing evidence that when the Plaintiff is eventually released from prison he will continue to be significantly affected by the disabilities I have described in the preceding paragraphs. I find therefore that he will also obviously suffer from a significant ongoing impairment in his earning capacity.

Matters relating to the credibility of the Plaintiff's testimony

I now turn to consider a number of matters that arose in the course of the trial which had the potential to impact on the Plaintiff's credibility.

When assessing the credibility of the Plaintiff's testimony, a task that is required to be undertaken in respect of all witnesses, I will ignore completely the fact that the Plaintiff appeared in court throughout the proceedings whilst being held in lawful custody and serving a sentence of imprisonment. Whilst that matter is an obvious and undisputed fact, in my view it has no relevance to an assessment of the credibility of the Plaintiff's testimony in these proceedings.

As a consequence of the unusual way in which the case proceeded, a late emerging issue arose concerning the Plaintiff's credit as a witness. These unusual circumstances were that the transcript and exhibits concerning the first trial were tendered on the first day of the re-trial followed by limited oral evidence then being taken from the Plaintiff and Mr Bingle. This occurred before an opportunity had arisen for a detailed reading and review of the documentary exhibits.

On Friday 13 February 2009 the proceedings were adjourned so that the written materials could be read before embarking on closing addresses which were due to be delivered when the hearing was set to resume on Monday 16 February 2009.

In the meantime, in the course of analysing the medical exhibits that were tendered in the proceedings a number of factual matters became evident and which I felt had to be drawn to the attention of the parties. This was so notwithstanding that the evidence had closed and, subject to viewing the DVD footage of the events, final addresses were about to commence. Procedural fairness required that the parties be afforded the opportunity of considering aspects of the Plaintiff's medical records so that the parties could make their forensic decisions accordingly.

After the parties took time to consider their respective positions the Plaintiff sought and was granted leave to re-open his case in order to give further evidence to explain certain factual matters that had become apparent.

Matters arising from an examination of the Plaintiff's medical records

There was no dispute that the breaking and entering had taken place at about 4.00am on the morning in question : Exhibit "A", Tab 2 page 3 line 13. There is no dispute the shooting incident occurred very shortly afterwards.

The triage sheet of the Canterbury Hospital Emergency Department clinical records relating to the Plaintiff's treatment at that hospital indicates that at the time of his presentation to hospital the Plaintiff was promptly triaged in respect of his gunshot wound at 4.12am and was allocated the highest priority code of category one. I infer from this record, which indicates that the Plaintiff was actively bleeding, that he was seen by a doctor almost immediately. I therefore infer from this record that Dr Fraser saw the Plaintiff at 4.12am, he being the first doctor to see the Plaintiff on his presentation to the hospital. I make this inference because Dr Fraser was the first doctor to make notes in the Plaintiff's medical records.

These times indicate an apparent discrepancy in time calibration between the hospital notes that recorded the Plaintiff as being seen at 4.12am and the club's security camera recordings which shows the Plaintiff and his accomplices commenced to carry out the breaking and entering at about 4.20am. I think it is more probable that the hospital time is likely to be correct compared to the time marked on the security camera footage but nothing appears to turn on this discrepancy in the recording of time.

Incorporated in the tendered hospital records was a certificate under s 177 of the Evidence Act 1995 concerning the assessment and treatment of the Plaintiff at Canterbury Hospital. This was signed by Dr Fraser who was the Plaintiff's treating doctor at that hospital. The certificate was dated 15 September 2003. I infer from its form and content that it formed part of the preparation of a prosecution case against the Plaintiff. It indicated that a doctor, who I infer to have been Dr Fraser, had seen the Plaintiff at the hospital at 4.12am on the morning of 23 June 2003 at which time Dr Fraser attributed to the Plaintiff a version of previous events in which the Plaintiff said he had been shot but he gave no further details of the cause of his injuries : Blue Appeal Book 97RS.

At 5.00am on 23 June 2003, Dr Fraser, who was also noted to be the medical officer in charge, wrote in the Canterbury Hospital clinical notes to record the fact that the Plaintiff had presented with a gunshot wound which was queried to be in the back. He wrote that the Plaintiff had stated this occurred at about 4.00am that morning and it was recorded that the Plaintiff was unable to give other details of the shooting : Blue Appeal Book 192RX. It is both relevant and important to note that at that time there was no indication in the medical records to the effect that police were either at the hospital, in the same room as the Plaintiff, or even aware of the Plaintiff's existence at the hospital. In my view this is an important matter which is relevant to the assessment of the Plaintiff's credibility.

The next timed entry in the Canterbury Hospital clinical notes is recorded as being 5.15am at which time a trauma assessment was carried out by a surgical registrar who recorded a history of a gunshot wound. The record of that consultation also includes the mention of a robbery. The note records that the Plaintiff self-presented and walked into the hospital, possibly after being dropped off : Blue Appeal Book 195GJ. A transfer to Royal Prince Alfred Hospital was noted to have been requested by Dr Fraser earlier at 5.00am : Blue Appeal Book 195UV. The records show that the surgical registrar ordered analgesia at 5.15am : Blue Appeal Book 196DE. Before that time the only statum medication recorded as having been given to the Plaintiff was two doses of 1 gram of the intravenous antibiotic, Cephazolin : Blue Appeal Book 192N. That was later followed by a further intravenous dose of the antibiotic Cephazolin at 4.45am : Blue Appeal Book 194M; 196D and 201.

The charted times in the hospital records show that at 4.25am the Plaintiff was given a 10mg dose of intravenous morphine and another 5mg dose at 4.34am making a total morphine dose of 15mgs: Blue Appeal Book 201. The records state that the Plaintiff was then interviewed by detectives at 6.04am at which time he was noted as being stable : Blue Appeal Book 201. This entry was the first and only mention in the medical records to indicate a police presence at the hospital.

At 6.25am it was noted that a further 5mg of morphine was given, making the total intravenous dose of morphine 20mgs between 4.25am and 6.25am before the transfer to Royal Prince Alfred Hospital : Blue Appeal Book 201.

The ambulance transfer report records that the ambulance officers were with the Plaintiff at the Emergency Department of Canterbury Hospital at 6.16 am. Those records indicate the ambulance officer departed for RNSH (sic for RPAH) at 6.44am and then arrived at Royal Prince Alfred Hospital at 7.05am : Blue Appeal Book 139.

At some stage an unidentified doctor on the staff at Canterbury Hospital, I infer from the form, content and context of the note that it was the surgical registrar, wrote a referral letter to facilitate the hospital transfer. In the historical description portion of that letter the doctor wrote that the Plaintiff was unable to remember the circumstances in which he acquired his gunshot wound, and the note went on to query an alleged robbery and shooting by a security guard : Blue Appeal Book 191JM. I infer that the surgical registrar obtained this history from either the Plaintiff at his examination of the Plaintiff at 5.15am or from Dr Fraser who had earlier examined the Plaintiff at 4.12am and possibly again shortly before 5.00am at which time he wrote up his orders for management of the Plaintiff's condition.

There is no mention in the ambulance transport form or in the inter-hospital transfer referral letter or the RPAH triage sheet from the receiving hospital that the Plaintiff was accompanied by police on the journey from Canterbury Hospital to Royal Prince Alfred Hospital. Further, other than the brief mention of an interview by detectives whilst the Plaintiff was still at the Canterbury Hospital at 6.04am, there is no mention in any hospital records of the presence of any police in attendance in his room as was stated by the Plaintiff in his evidence. I regard this to be an important observation in view of the Plaintiff's evidence given on 13 February 2009, to which I will shortly refer.

I have set out the foregoing factual summary in some detail because it is necessary to review the credibility of some aspects of the Plaintiff's evidence against the background of these objectively recorded events.

After the foregoing entries within the clinical records were drawn to the attention of counsel before the commencement of closing addresses, leave was given for the Plaintiff's case to be re-opened so that the Plaintiff's counsel could call further evidence to explain the various entries within hospital notes that had become the focus of recent analysis.

In his further evidence the Plaintiff explained that the reason he did not tell any of the doctors at Canterbury Hospital that he had been shot was because he did not want to alert the police to what had happened to him. In this later evidence he also said that the police arrived at the hospital almost straight after he had arrived there and had remained in his room whilst he was speaking to doctors. He further claimed that at this time he was concerned that the police might find out how he came to be shot and he was concerned that the police would charge him with a criminal offence. This evidence seems inconsistent with the Plaintiff's evidence that after he was shot he was not concerned as to the consequences for himself, he simply wanted to be treated.

He claimed that when the police asked him whether he was shot at the club there were about ten people in the same room, including the Plaintiff, doctors, nurses and members of the Plaintiff's family. The Plaintiff was not asked about, and did not volunteer, the content of his replies to questioning by the police as to whether he had been shot at the club premises. The Plaintiff was not arrested and charged in respect of these events until some 7 months later, on 29 January 2004.

Further matters affecting Plaintiff's credit arising from Plaintiff's further testimony

In the course of the Plaintiff's further evidence given on 13 February 2009, counsel for the Defendant sought leave to cross-examine the Plaintiff on matters the Plaintiff had represented to the probation and parole officer who had prepared a pre-sentence report for the benefit of the sentencing Judge concerning the events in question. In that report, which was tendered and marked Exhibit "3", it is recorded that the Plaintiff told the parole officer he had committed the offence in question alone and that he had not been in the company of others. It was also recorded that he had told the probation and parole officer that at the time of the offence he had an $800 per week cocaine habit.

When the Plaintiff's attention was drawn to these matters in his further evidence before me he admitted whilst under cross-examination that these statements he had made to the probation and parole officer were lies that had been aimed at favourably influencing the sentencing Judge. In his further evidence he reaffirmed that he was in the company of three others when the break-in occurred. He also stated that the story of an $800 per week cocaine habit which he had given to the probation and parole officer was an invention on his part. He explained that in respect of the former statement he did not want to divulge the identity of his accomplices as the parole officer had been continuing to press him for information concerning his accomplices so he had given her false information to stop her questioning him further about them. In the latter case he claimed that he had told the parole officer an untrue story about a cocaine habit in the hope that this would favourably influence the sentencing Judge into giving him a more lenient sentence.

The Defendant in these proceedings submits that in the light of these revelations, which concerned previous untrue representations made on behalf of the Plaintiff with his full knowledge and on his instructions, the Plaintiff's evidence on critical matters of factual dispute in these proceedings should simply not be accepted because these revelations show that the Plaintiff's credit has been materially damaged to the effect that the Plaintiff is not a credible witness.

In this regard the Defendant developed the argument to submit that the Plaintiff has on a prior occasion permitted key false factual evidence to be placed before a court on his behalf and on his instructions in an attempt to manipulate the legal process to his advantage where it suited his interests to do so. The Defendant further submitted that in these circumstances the Court could not be satisfied that the Plaintiff was truthful in his evidence in this case where his evidence conflicted with the evidence of Mr Bingle and any objective contemporaneous documents. The Defendant submitted that as a consequence, the Court could not rely on the veracity of anything the Plaintiff had said in his evidence that conflicted with the evidence of Mr Bingle and which was not the subject of independent corroboration especially where it conflicted with the Plaintiff's medical records and the evidence Mr Bingle had given on factual matters.

Whilst there is much force in such a submission, the superficial attraction of that submission is partially flawed but only by the submitted requirement that the Plaintiff's evidence requires corroboration. In my view that aspect of the submission as to the Plaintiff's credit seeks to set the standard of proof too high by requiring that his evidence be corroborated.

Conclusion concerning the attack on the Plaintiff's credit

I do however accept that the Plaintiff's credit has been substantially and materially damaged by the subsequent evidence he gave concerning the false explanations he gave the parole officer and therefore to the sentencing Judge. Accordingly, I have concluded that when it comes to deciding the factual issues calling for determination in these proceedings I need to weigh the Plaintiff's evidence with considerable caution in the light of the foregoing disclosures because in my view they significantly and adversely impact upon the Plaintiff's veracity and the credibility.

In my view the Plaintiff's evidence as to the presence of the police in the room in the hospital when he was speaking to doctors during medical examinations is incorrect and should not be accepted.

In my view the Plaintiff's claim that there were about ten people in the same room, including doctors, nurses, family members and police lacks credibility and I do not accept that evidence. I come to this view because on my analysis the clinical notes indicate that the relevant conversations with doctors at which time he revealed an inability to explain the circumstances of his wounding took place before the police arrived and this was at a time when he was unconcerned about the legal consequences of the events in question.

I have also come to this conclusion because the first and only timed entry referring to the presence of the police at Canterbury Hospital is 6.04am. I infer from the fact of that note and its content that if the police had been present in the Plaintiff's room earlier than this time that presence would have been a matter of some significance that would have been noted in the records. The absence of such a note assists me to conclude that the Plaintiff's evidence to the effect that the presence of the police operated as an inhibiting factor in his explanation for his wounding should not be accepted.

The police did not charge Mr Bingle with any criminal offence relating to the events of 23 June 2003. This fact does not preclude an evaluation of Mr Bingle's conduct concerning whether or not he committed an offence within the meaning of Pt 7 of the Civil Liability Act 2002. This fact is not relevant to an evaluation of credibility of Mr Bingle's testimony in the same way as the Plaintiff's custodial sentence was irrelevant to the evaluation of the credibility of his testimony.

On behalf of the Plaintiff it was submitted that Mr Bingle was not a credible witness.

Reference was made to the expansion of his account of events in evidence compared to the content of the statement he provided to the police on the day of the events. I do not regard such a circumstance to be indicative of a lack of credibility in the circumstances of this case. Mr Bingle would have undoubtedly been affected by the events. He said he was shaken. The focus of the police statement was to ground a prosecution of the Plaintiff for the offence of aggravated break enter and steal and not the preparation of a proof of evidence dealing with the more complicated and wide ranging issues that might emerge in civil proceedings such as this and at a time when such proceedings were not even remotely contemplated.

On behalf of the Plaintiff it was submitted that Mr Bingle's demeanour was combative and evasive and therefore lacking in credibility. I did not gain that impression. It was clear that Mr Bingle was at times nervous, as any witness would be when confronted with rigorous cross-examination on matters which had stressed him. However, I did not regard Mr Bingle's demeanour or his answers as being either combative or evasive.

A further attack was made on Mr Bingle's credibility in that the Plaintiff sought to characterise aspects of his evidence as being "ridiculous". In this regard Mr Bingle's stated reason for loading another bullet into the revolver was because he was afraid the intruders might attack him. In my view that criticism is misplaced. Mr Bingle had no way of being certain as to how many intruders were involved and had no way of being certain as to from where he might be vulnerable to attack by these persons notwithstanding that those he saw were in the process of heading towards their vehicle. He stated his concern that they may have turned around raising the possibility that they may come back to confront him in greater numbers. In these circumstances I do not regard Mr Bingle's evidence as to the reason he reloaded his revolver as being ridiculous as was submitted.

Mr Bingle stated that he fired his revolver because he believed he might die if the intruders got hold of him. I find that he genuinely held that belief. In my view, being confronted and outnumbered by persons of mal-intent who were on the premises illegally and who failed to halt when twice asked to do so, Mr Bingle held that belief on reasonable grounds.

Although Mr Bingle displayed a degree of nervousness in Court and was in some apparent physical discomfort from a hip condition, in my view there was nothing about his testimony that struck me as incredible or ridiculous.

Consideration of the issues calling for determination

I now turn to a consideration of the issues calling for determination.

Was Mr Bingle the "directing mind and will" of the Defendant

In my view it is beyond dispute that Mr Bingle was the "directing mind and will" of the Defendant company.

In the appeal proceedings the question of potential criminal liability of corporate entities was identified and discussed and it was held that such liability was possible: Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204. Since I am satisfied that Mr Bingle was "the directing mind and will of the company" it follows that Mr Brilley's actions concerning the events in question are to be treated as the actions of the Defendant company. The relevance of the finding on this issue concerns the operation of defences and provisos within Pt 7 of the Civil Liability Act 2002 which refers to persons and not corporate entities. In my view the provisions of Pt 7 of the Act that refers to natural persons should be read as also applying to corporate entities such as the Defendant in this case.

I find that the first incident in which the Plaintiff received a gunshot wound from the firearm discharged by Mr Bingle occurred in the foyer of the premises very shortly after the Plaintiff and his accomplices had entered the premises through the front door that had been forced open by the Plaintiff. 112. The Plaintiff claims that the discharge of the firearm by Mr Bingle should be characterised as being an offence in breach of several provisions of the Crimes Act 1900. The Plaintiff's argument invokes several alleged breaches, namely s 59 which relates to assault occasioning actual bodily harm; s 61 which relates to common assault; s 33A which relates to discharging a firearm with intent to cause grievous bodily harm and s 93G which relates to causing danger with a firearm.

113. The Plaintiff argues that any such breach of the criminal law by Mr Bingle triggers the liability of the Defendant to the Plaintiff for damages in tort by removing the statutory restrictions imposed on a court for finding civil damages because the tortfeasor had committed a relevant offence: s 54(2) of the Civil Liability Act 2002.

114. For its success the Plaintiff's argument is dependent upon whether or not Mr Bingle's conduct constituted a reasonable response to the circumstances as he perceived them and as such the conduct in question constituted self-defence: s 52(2) of the Civil Liability Act 2002.

Was the initial shooting of the Plaintiff carried out in self-defence?

115. I have reached the conclusion that Mr Bingle was acting in self-defence and in reasonable response to the earlier actions of the Plaintiff when he discharged his firearm at the Plaintiff. I have reached this conclusion for a number of reasons.
116. The starting point for the analysis involved an examination of the conduct of the Plaintiff and his accomplices.

117. First, I find that in the immediate lead up to the shooting the Plaintiff and his accomplices were acting unlawfully and were in the course of committing a serious criminal offence in an aggravated form, namely breaking and entering with intent to steal which, amongst other things, was conduct contrary to the provisions of s 112 of the Crimes Act 1900 : s 52(1)(a) of the Civil Liability Act 2002.

118. Secondly, I find that by the very reason and nature of Mr Bingle's presence on the premises, he was conscious of the fact that on previous occasions the premises had been targeted by intruders and robbers, including an occasion only a few months beforehand, at which time Mr Bingle's own gun had been stolen from him by assailants who had broken and entered into the premises in order to commit unlawful acts.

119. Thirdly, I find that on the occasion of the entry of the Plaintiff and his accomplices onto the premises Mr Bingle had a reasonable basis for assuming that these persons were in some way armed. This was plainly evident from the Plaintiff's actions in gaining entry to the premises by using an implement to force open the front door. In these circumstances it was reasonable for Mr Bingle to assume at the very least that the Plaintiff continued to hold in his hand the implement he had earlier used to break and enter the premises after he had breached the security of the locked front door and then make his way into the premises.

120. Fourthly, although not subsequently borne out by the events, by reason of earlier events which occurred in February 2003, Mr Bingle was reasonably entitled to consider the possibility that the Glock pistol that had previously been forcibly taken from him could have been in the possession of one or other of these persons illegally entering the premises. I infer from these previous circumstances that Mr Bingle was conscious of this possibility at the time he discharged his firearm. Added to this was the fact that as intruders the Plaintiff and his accomplices had taken steps to conceal their identities. This, when taken together with the fact that they were engaged in a joint illegal enterprise, in my view raised a reasonable basis for Mr Bingle to suspect that these intruders may be armed. In these circumstances I find it was reasonable for Mr Bingle to think and behave defensively. He was outnumbered by intruders and the circumstances were perilous for him.

121. Fifthly, I accept Mr Bingle's evidence that he had issued the intruders with two verbal challenges to halt, at which time I also find that he had identified himself as a security guard. Notwithstanding these warnings the Plaintiff and his accomplices did not halt but continued their advance. They did so notwithstanding that the circumstances indicated that Mr Bingle had a reasonable basis for making such a request for them to halt their advance. In my view the fact of the continued advance following such a challenge to halt raised a reasonable apprehension on the part of Mr Bingle that he was in immediate danger of harm. In fact he felt he might be killed. I find this to be so because the intruders ignored his reasonable request to halt and did not respond other than by continuing their advance towards him.

122. Sixthly, these events occurred in the early hours of the morning outside of normal club trading hours and in conditions of poor lighting which in my view gave Mr Bingle good reason to feel that he was at risk of personal harm from these persons.

123. Seventhly, in the foregoing circumstances, especially in view of the Plaintiff's failure to halt his advance after being challenged to do so, I consider it was reasonable for Mr Bingle to feel the immediate need to defend himself. I find that this was particularly so since in the circumstances described, he was also alone and outnumbered by persons with obvious mal-intent to both person and property. The Plaintiff's criticism of Mr Bingle to the effect that he failed to consider all available options before shooting is misplaced in these circumstances.

124. I therefore accept Mr Bingle's evidence that he felt his life was threatened and that he felt he might be killed. I accept Mr Bingle's perception that he might be killed as reality based. I therefore accept Mr Bingle's evidence that when he discharged his firearm with multiple shots in the direction of the Plaintiff and his accomplices he did so in self-defence with the intention of stopping them as a reasonable response to the circumstances he perceived confronted him at the time: s 52(2) of the Civil Liability Act 2002. Consequence of findings on the self-defence issue
125. Since I have accepted that the actions taken by Mr Bingle in the course of the first incident were actions taken in self-defence that amounted to a reasonable response to the circumstances as he perceived them, it is not necessary for me to further consider whether or not the circumstances were exceptional. Similarly, it is not necessary for me to determine whether a failure to award the Plaintiff damages in respect of the first incident would be harsh and unjust in the circumstances: s 53(1) of the Civil Liability Act 2002. I find that the first incident in which the Plaintiff claims damages for battery or assault does not sound in damages.

126. It is necessary to resolve conflicting evidence as to the occurrence of the second incident that was described by the Plaintiff. To determine this issue requires me to reach a conclusion on a consideration of disputed factual evidence and reconcile the differing versions of the relevant events.
127. On the one hand the Plaintiff claims that after Mr Bingle discharged the initial shot that struck the Plaintiff, and after discharging some further shots in the direction of the Plaintiff's accomplices, Mr Bingle then raised and pointed his revolver at the direction of the Plaintiff in order to further shoot at the Plaintiff after the Plaintiff had risen to his feet. At this time the Plaintiff claims that he stood in front of Mr Bingle with his arms raised and asked Mr Bingle not to shoot him as he was unarmed. On the other hand the Defendant claims that when Mr Bingle's firearm ran out of live ammunition, a conclusion he had reached when the further pressing of the trigger resulted only in a clicking sound, Mr Bingle then started his attempts to re-load the revolver, during which time the Plaintiff and his accomplices took the opportunity to leave the premises in order to make good their escape. Mr Bingle maintains that until the point had been reached where he had fired off all his ammunition, the Plaintiff had remained laying on the floor as a result of having already fallen after having been shot.

The Plaintiff claims that this claimed second incident should be characterised as constituting an offence committed by Mr Bingle because it is capable of being construed as being conduct in breach of s 61 of the Crimes Act 1900 which concerns the offence of common assault. A similar consequential argument as was raised by the Plaintiff in respect of the first incident as to the potential for liability of the Defendant to the Plaintiff in tort is also raised in respect of this claimed second incident : s 54(2) of the Civil Liability Act 2002. Mr Bingle has denied that he committed any such offence.

Was the firearm pointed at the Plaintiff in an attempt to discharge it as alleged?

I have reached the conclusion that Mr Bingle did not point and attempt to discharge his firearm at the Plaintiff in an alleged second incident as claimed by the Plaintiff. In my view the second incident did not occur or at least it did not occur in the manner described by the Plaintiff. In comparing the two different versions of events I find that I prefer the evidence of Mr Bingle to that of the Plaintiff on matters of differing recollections. I have come to this view for a number of reasons.

First, I find that the Plaintiff's credit has been damaged in connection with the evidence he has given in this case. I regard his evidence concerning the alleged occurrence of the second event as an incorrect reconstruction of the events proffered in an attempt to secure a finding in his favour in this litigation.

Secondly, I find that the account of events he gave in evidence in these proceedings before me is inconsistent with the contemporaneous record of his account given to the doctors at Canterbury Hospital shortly after he arrived there for treatment at which time he was recorded as being unable to remember the circumstances in which he acquired his gunshot wound. I accept the veracity of the contemporaneous account in the hospital notes indicating an inability of the Plaintiff to explain the circumstances of his gunshot wound. I infer from his statement to that effect, as has been recorded by the staff at the hospital, that his inability to explain the events of his gunshot wound extends to the ensuing events immediately afterwards, including when he had been felled by that gunshot. At that time he would have undoubtedly been shocked and his perceptions and therefore his recollections of surrounding events would have been distorted by the traumatic nature of those events. I do not accept the Plaintiff's explanation that he concealed the circumstances of his gunshot wound due to the presence of police officers in his room at the hospital because such an account is inconsistent with the objectively recorded contemporaneous chronology of events recorded in the Canterbury Hospital notes. I accept that chronology in preference to the Plaintiff's testimony on this subject. This causes me to doubt the Plaintiff's account of the surrounding events.

Thirdly, I find that the Plaintiff's account of events in which he described himself as rising to his feet and asking Mr Bingle not to shoot at him because he was unarmed did not occur. Instead I prefer Mr Bingle's account in which he stated that the contrary version given by the Plaintiff in respect of the claimed second incident simply did not occur in that Mr Bingle did not raise his revolver and seek to fire at the Plaintiff a second time. Insofar as it is necessary to ascribe a motive to the Plaintiff for seeking to advance an incorrect version of events in this way I find that the Plaintiff's version is a deliberately incorrect construction of events proffered by him in an attempt to manipulate the result of these proceedings in his favour. It is significant to note, to his discredit, that he had previously undertaken such a course in connection with court proceedings arising out of the events with which this case is concerned. In this regard he admitted lying in material respects to a probation and parole officer who prepared a pre-sentence report which he knew would be placed before the sentencing Judges. He admitted lying in that regard with the express aim of trying to influence the sentencing Judge into giving him a more lenient sentence, apparently with some success.

Fourthly, in my view the events that the Plaintiff described and relied upon as a second and separately definable incident were in truth merely a continuum of the events that comprised the first incident. I have come to this view because in the description of the events relied upon by the Plaintiff in that I believe he would not have had a sufficient period of time in which to find his way onto his feet to find himself in front of Mr Bingle who was still in the course of firing rounds at the Plaintiff's accomplices. I accept Mr Bingle's evidence that he was in the course of continuing to fire his revolver and only realised that he had used up all his ammunition when the revolver produced a clicking sound instead of continuing to fire further rounds. I find that at that time the Plaintiff was still laying on the floor.

Fifthly, I find it most improbable that the Plaintiff, having already been shot and wounded and having been forced to the ground by the impact of the bullet that struck him, would have then got to his feet in order to stand in the line of sight and therefore in the line of fire of the person who had earlier shot him and who was still in the course of or at least apparently capable of firing further shots at him.

In arriving at this analysis I have had due regard to the DVD footage relied upon by the Plaintiff to support the assertion that he had his hands in the air in the claimed second incident. I have viewed the footage several times, particularly the frame calibrated at 4:21:55 which provides a fleeting glimpse of a figure with the arms elevated away from the torso. Accepting that this figure shows the Plaintiff was as submitted, I consider the frame to be so fleeting an image that I cannot reliably conclude from this single frame that it shows the Plaintiff with his arms raised, consistent with the Plaintiff's description of the events.

In my view the frame at 4:21:55 is more consistent with showing an image of a fast moving person probably running away from the premises. The slightly elevated arms seems to me to be consistent with movements the arms would be expected to make in association with either a running action or a very fast walk. I am not persuaded that the DVD footage shows the Plaintiff to have raised his arms as alleged. I would have needed to see a more continuous sequence of images in order to reach the conclusion that the Plaintiff's arms were raised. Significantly, the footage does not show the presence of Mr Bingle so a comprehensive analysis of this very brief moment in time is not possible. I find that this evidence is not persuasive of the Plaintiff's contention concerning the alleged second incident as has been claimed by the Plaintiff.

Accordingly, I do not accept that the events occurred as the Plaintiff has described. I accept Mr Bingle's evidence that he did not again point his revolver at the Plaintiff whilst the Plaintiff was standing before him with his hands raised in the air and asking that Mr Bingle not to shoot at him. I find that it follows that Mr Bingle did not assault the Plaintiff in the claimed second incident.

Consequence of findings on whether the firearm was pointed at the Plaintiff as alleged

As I have accepted that the second incident did not occur in the manner alleged by the Plaintiff and as I have found that Mr Bingle did not assault the Plaintiff by the pointing of a weapon and attempting to discharge it at the Plaintiff it becomes unnecessary for me to further consider and decide whether the actions taken by Mr Bingle in the course of the alleged second incident were actions in self-defence that amounted to a reasonable response to the circumstances as he perceived them : s 52(2) of the Civil Liability Act 2002. Similarly, it is not necessary for me to decide whether or not the circumstances were exceptional and whether a failure to award the Plaintiff damages would be harsh and unjust in the circumstances : s 53(1) of the Civil Liability Act 2002.

It is necessary to characterise the legal significance of the events which comprised the third incident in which Mr Bingle admittedly discharged a single round from his firearm at the vehicle in which the Plaintiff and his accomplices were making good their escape from the scene.

The Plaintiff claims that this third incident should be characterised as comprising offences committed by Mr Bingle in breach of several provisions of the Crimes Act 1900. The Plaintiff's argument invokes several alleged breaches, namely s 61 which relates to common assault; s 33A which relates to discharging a firearm with intent to cause grievous bodily harm; s 93G which relates to causing danger with a firearm and s 93GA which relates to firing at a dwelling house or building with reckless disregards for the safety of any person.

As was the case with respect to the first and second incidents, the Plaintiff argues that any such breach of the criminal law by Mr Bingle triggers the Defendant's liability to the Plaintiff for damages in tort by removing the statutory restrictions imposed on a court for finding civil damages because the tortfeasor had committed a relevant offence: s 54(2) of the Civil Liability Act 2002.

Characterisation of the shot Mr Bingle fired at the departing vehicle

The first observation to be made is that at the time Mr Bingle discharged his revolver in the direction of the fleeing vehicle neither the vehicle nor its occupants posed any immediate threat of harm to either him or to any property on the premises nor was it necessary for him to consider preventing a criminal trespass or removing persons committing a criminal trespass on the premises : s 52(2) of the Civil Liability Act 2002. In these circumstances s 53 of the Act does not require consideration.

The relevant question therefore becomes: what was Mr Bingle's intention in firing a round at the fleeing vehicle? There are two relevant scenarios. One the one hand, an ill-considered shot discharged recklessly in the circumstances could possibly provide the basis for a finding that Mr Bingle had himself committed an offence : s 54(4) of the Civil Liability Act 2002. On the other hand if there was a specific lawful intention behind the shot being discharged in the circumstances, this also needs to be considered.

It is convenient to first examine the latter scenario.

In his oral evidence given before me Mr Bingle candidly admitted that at the time he fired the shot in question at the departing vehicle "the adrenalin was going" and he "just wanted to stop them". In hindsight he acknowledged that it was wrong to have done so. I do not take such a statement to be an admission of wrongdoing on his part as has been submitted by the Plaintiff. Instead I take that comment to be very much a hindsight statement of regret rather than an admission of wrongdoing. Accordingly, it is necessary to consider Mr Bingle's purpose in firing the shot he discharged at the vehicle. The unchallenged evidence was that this shot was fired from a distance of about two to three hundred yards towards the rear of a moving vehicle that was travelling very fast as it was speeding away from the scene. Mr Bingle denied that the shot he discharged had hit the rear windshield.

In his evidence Mr Bingle specifically stated that his objective in firing the shot was to stop the vehicle or slow it down in order to enable the occupants to be apprehended. Notwithstanding the submission made on behalf of the Plaintiff to the contrary, I find this to be a credible explanation. The reason I have come to this view is that at the time the shot was fired, I find that Mr Bingle had a reasonable belief that the police would be on their way as he had activated his personal distress alarm that would have ordinarily alerted the police that their attendance was required at the scene. In these circumstances I consider Mr Bingle's intention to stop the vehicle so that the criminals within could be apprehended was a valid reason for firing a shot at the vehicle. The mechanism by which such a course could reasonably achieve its objective is readily apparent, namely if bullet damage had been occasioned to a tyre this would most probably have caused the driver to slow the vehicle down or stop the vehicle on account of the safety of the occupants of the vehicle.

I now turn to a consideration of whether the shot at the departing vehicle was discharged recklessly.

I find that when Mr Bingle discharged his firearm in the third incident he was neither acting in self-defence nor intending to shoot at the Plaintiff in circumstances that would constitute an assault. Instead, he was attempting to stop the vehicle and its occupants from leaving the scene in order that the Plaintiff and his accomplices could be apprehended by the police whom Mr Brilley anticipated would soon arrive on the scene.

Accordingly, I find that in respect of the third incident the issue of whether Mr Bingle acted in self-defence for the purposes of s 52 of the Civil Liability Act 2002 does not arise.

It is therefore necessary to consider whether Mr Bingle's actions concerning the third incident could be reasonably argued to have constituted breaches of ss 61, 33A, 93G or 93GA of the Crimes Act 1900.

In my view each of the Plaintiff's arguments concerning alleged breaches of the provisions of the Crimes Act 1900 must fail. Specifically: (a) S 61 relates to common assault. I am not persuaded that the bullet Mr Bingle fired at the fleeing vehicle struck the rear windshield as alleged by the Plaintiff. I do not accept that the Plaintiff's vehicle rear windshield was struck or penetrated or that there was the sound of shattering glass I therefore do not accept that the Plaintiff felt any apprehension of harm as alleged. I accept Mr Bingle's evidence that he fired at the car for a lawful purpose in order to stop it and to prevent the criminals within it from fleeing. Accordingly, in my view Mr Bingle did not commit an offence under s 61 of the Crimes Act 1900.

(b) S 33A relates to the discharge of a firearm with intent to cause grievous bodily harm to any person. I accept Mr Bingle's evidence that he fired at the vehicle with the intention of stopping it. In my view that intention does not constitute an intention to cause grievous bodily harm. Accordingly, in my view Mr Bingle did not commit an offence under s 33A of the Crimes Act 1900.

(c) S 93G relates to dangers concerning the possession and use of a firearm in a public place. In my view Mr Bingle has satisfied me that he had a reasonable excuse for possessing the firearm and using it for a lawful purpose in connection with the third incident. He was licensed to possess the firearm. He was a security guard on duty in premises that were in the course of being robbed. He used it in an endeavour to stop criminals from escaping from the scene of their crime. I find that he acted reasonably to enhance the prospect of their lawful apprehension. I find he held an honest belief on reasonable grounds that he was entitled to take this course and that his actions in firing a shot at the departing vehicle were justified : Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536. I came to this conclusion notwithstanding that in hindsight he conceded he did the wrong thing. Accordingly, in my view Mr Bingle did not commit an offence under s 93G of the Crimes Act 1900.

(d) S 93GA relates to the discharge of a firearm at a dwelling house or other building with reckless disregard for the safety of others. The definition of a dwelling-house includes a motor vehicle in which persons reside. In my view this offence is not made out against Mr Bingle as I have found that his conduct was not reckless. Although he acknowledged his reaction was mediated by adrenalin and although he conceded in hindsight that he acted wrongly, the fact remains that he fired with the intention of stopping the vehicle for a lawful purpose as I have outlined in my review of the s 93GA considerations. There is a significant difference between an incidental danger to life and an intent to endanger life : R v Piltz [2004] 59 NSWLR 538 per Barr J at 543 [20]. For these reasons, in my view Mr Bingle did not commit an offence under s 93GA of the Crimes Act 1900.

Consequence of findings concerning the shot fired at the departing vehicle

As I have found that Mr Bingle did not commit any of the offences alleged against him the Plaintiff is not entitled to any beneficial operation of s 54 of the Civil Liability Act 2002 and in particular, Pt 7 of that Act. Accordingly, in my view the Plaintiff's claim in respect of the third incident must fail.

It follows from my findings on the liability issues that the Plaintiff fails in his claim against the Defendant.

In view of my liability findings, the question of assessment of damages does not arise in respect of any of the claimed incidents. However, in accordance with convention, should it ultimately be shown that my reasons for finding against the Plaintiff are wrong, it is appropriate that I indicate the assessment of the damages I would have otherwise awarded. I now turn to an assessment of the damages I would have otherwise awarded if the Plaintiff's case had succeeded.

To arrive at an award of general damages in this case requires the consideration and assessment of each of the three separate claimed incidents.

If, contrary to my factual findings in respect of the first incident, it becomes necessary to consider an appropriate amount for general damages in respect of the first incident. I set out the matters I have considered. Having due regard to the detail of the physical injuries, the subsequent medical treatment, the medical opinions tendered, the residual disabilities already reviewed, including the shock of realising he had been shot, the pain, suffering, the loss of amenity of life, including the disfigurement due to the indurated scars on the left flank and lumbar spine, in my view in combination call for a significant award of general damages. The sudden and traumatic circumstances of the shooting readily explain the initiation of a subsequently diagnosed acute Post-Traumatic Stress Disorder which has ultimately plateaued into an ongoing depression. In these circumstances I consider an appropriate award of general damages would be in the sum of $120,000.

The second incident - the alleged pointing of the gun

Notwithstanding my finding that the second incident did not occur, difficult as it is to do so, it is necessary to consider what would be an appropriate sum to award for general damages if it is accepted that the second incident did in fact occur as described by the Plaintiff.

It is readily apparent that someone in the position the Plaintiff as he described in the second incident would have undoubtedly received a severe and sentinel fright on having a revolver pointed at him at close range at which time the trigger was pulled at least once if not twice notwithstanding that it was subsequently revealed that the revolver was no longer loaded with live ammunition. The terrifying fright and fear of death involved in such circumstances are self-evident albeit momentarily so.

If that view of the circumstances were to prevail notwithstanding my findings, where the recipient would naturally be expected to have momentarily been in agonised fear for his life, the event could readily form the basis of an exacerbating factor to the Post-Traumatic Stress Disorder already initiated in the first incident although my finding is that the second incident was in reality a continuation of the first incident in which the trigger of the revolver was pulled an additional seven times in rapid succession after the first shot struck the Plaintiff.

Although these events occurred very quickly in rapid succession, the segregation of the time component whereby the last two pulls on the trigger have been portrayed as comprising a second incident is somewhat artificial. Nevertheless, it is not improbable that the Plaintiff's perception of the time taken for that component has been distorted by the overall traumatic nature of the surrounding events and the shock of an evolving realisation that he had been wounded. Although I have rejected the Plaintiff's evidence as to the occurrence of the second incident, if the Plaintiff's version of the circumstances were to be accepted as fact, then having regard to the content of the medical evidence I consider that an appropriate award of general damages for the so-called second incident would be in the sum of $35,000.

The third incident - gunshot fired at the departing motor vehicle

The Plaintiff alleges he became aware of a shattering of the rear windshield in the getaway vehicle as he was driving away. By the time the Plaintiff would have been in a position to realise what had occurred he would most probably have been out of view and out of range for any further shooting of any bullets fired by Mr Bingle. The uncontested evidence of Mr Bingle was that he discharged his revolver at the vehicle from a distance of two to three hundred yards and with ongoing acceleration. No attempt was made to estimate the speed of the getaway vehicle at this point. I infer from the use of the descriptor speeding that the speed of the vehicle was in excess of 60kph which is the equivalent of 16.66 metres per second. This comparator indicates that any experience the Plaintiff had of the incident in which the shot was fired at the departing vehicle must have necessarily been very fleeting. At that time it is noteworthy that the Plaintiff was already suffering from a burning pain in his torso from a gunshot wound, he was already shocked and he was already bleeding. I infer from these facts that he would have been considerably distracted by these matters.

I have already inferred from the medical records tendered that the Plaintiff was unaware of the circumstances of how he received his injuries and that he did not have an actual recollection of all of the ensuing events that he recounted in his evidence. I regard those notes as being cogent proof that the Plaintiff did not recall the events in the detail that he recounted in his evidence. I may possibly have found otherwise if evidence from one or other of his accomplices had been called to provide me with some further material from which I could have felt able to accept the Plaintiff's version but this did not occur. I do not consider that he was, in the relevant sense, aware of the surrounding circumstances to a sufficient degree to make out that this alleged assault in fact occurred. Consistent with that view I do not consider the Plaintiff to be entitled to any damages in respect of the third incident.

Allowing for the possibility that my analysis of the evidence may be shown to be incorrect I am required to indicate my assessment of general damages in respect of the third incident. I consider that in those circumstances an appropriate sum would have been in the order of $15,000.

Summary of general damages and apportionment for interest

The above three assessments of general damages total $170,000. It is important to recognise that within these three assessments there may be some scope for overlapping of damages. There is also a need to give such assessments a sense of overall proportion : Varmedja v Varmedja [2008] NSWCA 177 per Tobias JA at [155]. To allow for these factors I round the combined assessment of general damages down to $160,000. I therefore assess the Plaintiff's notional entitlement to general damages in respect of these incidents to be in the sum of $160,000. Of this award I would apportion $80,000 to the past for the purposes of enabling a calculation of interest.

I would have assessed interest on past general damages at 2% on $80,000 over 5.63 years between 23 June 2003 and 10 February 2009 : MBP(SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657. I assess interest on past general damages in the sum of $9,008.

Consequent upon the rejection the Plaintiff's late application to amend the particulars of claim to include a claim for damages for an impairment in his earning capacity it follows that the Plaintiff is not entitled to claim such damages. To address the possibility that if it is shown on appeal that I wrongly rejected the application, I am required to indicate what my assessment of such damages would otherwise have been had the amendment been allowed.

Having regard to the earlier analysed medical opinions, but for my earlier ruling declining to permit an amendment to the particulars, notwithstanding that the claim was for a "buffer" I consider it would have been appropriate to assess a weekly sum to represent a permanent ongoing impairment in the Plaintiff's earning capacity : Zorom Enterprises Pty Ltd v Zabow & Ors [2007] NSWCA 106 per Basten JA at [49].

The rationale for such a view is that the Plaintiff has had a limited education and uninjured, his working life would probably have been restricted to heavy manual work requiring full physical strength and dexterity. It is clear from the medical opinions I have reviewed that his capacity for such work has been significantly curtailed as a result of the ongoing permanent effects of his gunshot wound. This requires something more than a "buffer" approach.

Imperfect as the process is, I have to assess a monetary basis for quantifying the Plaintiff's future loss of earning capacity. I assess the Plaintiff's probable earning capacity uninjured to be seventy-five per cent of average weekly earnings. I come to this view because the Plaintiff is unskilled and I consider he was unlikely to ever achieve earnings at the level of average weekly earnings.

The gross figure for current average weekly earnings published by the Australian Statistician is $1,260. Seventy-five per cent of this sum is $945 per week gross. After applying the relevant tax and Medicare rates this sum is revealed to be the equivalent of $762 per week net.

In view of the medical evidence which I have accepted, I consider that the Plaintiff's loss of earning capacity should be assessed at two-thirds of this sum, which I round down to $500 per week net.

It is necessary to identify the period over which such a loss falls to be assessed. The Plaintiff is due for release from prison in June 2012, a little over 3 years away. The further factors that need to be considered in an assessment of the Plaintiff's future impairment of earning capacity are the current economic climate and the general difficulty securing employment in that climate as well as the specific difficulties the Plaintiff will face in securing employment because of his criminal record notwithstanding that by the time he would be released he would most likely have been rehabilitated and in receipt of assistance for his placement in employment. For these reasons I consider it appropriate to allow a further buffer period of delay of about one year in securing employment after being released from prison i.e. to mid 2013. At that time the Plaintiff will be in his 31st year and will have a remaining theoretical working life of about 34 years.

In arriving at an assessment of future loss of earning capacity I also have to consider the likely impact of adverse vicissitudes and contingencies on the Plaintiff's future employment prospects. In addition to the conventional factors involved in discounting future economic loss there is the possibility that notwithstanding initially successful rehabilitation he may offend again and have to serve further periods of imprisonment. An additional matter to be taken into account is the likelihood that his past record of imprisonment is likely to represent a real barrier to continuous employment as many prospective employers may be reluctant to employ someone with a criminal record. A further additional factor is that due to the nature of the labour market and economic conditions, continuous employment in jobs involving unskilled manual labour may not be readily obtainable and sustainable. Taking into account these matters I consider that any award for future loss of earning capacity should be discounted by forty per cent.

The projection of $500 per week at 3% over 34 years (x 1119.20) deferred for 4 years to 2013 (x 0.888) and discounted by forty per cent for vicissitudes and contingencies yields an amount of $298,154. I would have assessed damages for future loss of earning capacity in the sum of $298,154.

Consistent with the assessment of future loss of earning capacity a tandem assessment of loss of employer funded superannuation benefits is required as a logical extension of that assessment. In the absence of actuarial evidence to estimate this loss I adopt the "rule of thumb" of 11% of the assessment of the loss of future earning capacity : Ghunaim v Bart [2004] NSWCA 28. The calculation of $298,154 yields $32,796. I would have assessed the future loss of superannuation in the sum of $32,796.

There is no direct evidence of the likely cost of future treatment. Nevertheless it is apparent that the Plaintiff will require such treatment in the future. In these circumstances I am required to undertake an assessment doing the best I can to strike a just balance between the respective interests of the parties. I consider that after the Plaintiff is scheduled to be released from his current period of imprisonment, a global sum of $7,500 would be a fair estimate to cover the Plaintiff's future out-of-pocket expenses over his remaining life span to cover the cost of treatment for possible consultations with a general practitioner, periodic psychiatric consultants, physiotherapy for his damaged muscles, possible cosmetic surgery to his scarring and possible medications. I would have assessed damages for future treatment in the sum of $7,500.

The Plaintiff has submitted a schedule of out-of-pocket expenses in the sum of $267.50 in Exhibit "D". I consider the claim to be reasonable and I accept it as such. I therefore would have assessed the Plaintiff's out-of-pocket expenses in the sum of $267.50.

It is difficult in this case to identify an appropriate notional construct within which to reason an approach to the award of exemplary and aggravated damages where my primary findings do not permit any award of damages at all. In view of my findings of fact I can therefore only approach an alternative formulation which includes assessments of exemplary and aggravated damages on a general indicative basis, which must necessarily be less than ideal. I will nevertheless approach the task in a broad way to allow for the possibility that on appeal my primary findings may be found to be in error.

In assessing both exemplary and aggravated damages I am conscious of the fact that I have already assessed general compensatory damages. Exemplary and aggravated damages serve a different purpose and are in a different category to general compensatory damages. I am also conscious of the need to avoid double counting in an assessment involving these elements of damages : State of NSW v Ibbett [2005] NSWCA 445 per Spigelman CJ at [83] to [89].

On the foregoing premises, if it is determined that exemplary damages require assessment then in respect of the three separate incidents relied upon by the Plaintiff and for the brief reasons outlined below, I consider that exemplary damages should be awarded in the following elements: (a) as to the first incident $5,000; (b) as to the second incident $40,000; (c) as to the third incident $30,000.

In the first incident if it were to be found that Mr Bingle shot the Plaintiff wrongfully and not by way of self-defence this could be construed as being conduct in conscious and contumelious disregard of the Plaintiff's rights such as to require a punitive but non-compensatory award of damages : Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1. However, on the other hand, the Plaintiff's conduct was the relevant precipitant which led to the shooting and in my view it is a highly relevant factor that propels an assessment of exemplary damages towards the lower end of the range for such damages.

In the second incident, if it were to be found that Mr Bingle attempted to shoot the Plaintiff at close range without just cause this would be an action taken in obvious contumelious disregard of the Plaintiff's rights calling for significant monetary censure.

In the third incident if it were to be found that Mr Bingle's conduct in firing a shot at the departing vehicle was reckless then this too would be a contumelious disregard of the Plaintiff's rights calling for significant monetary censure.

In arriving at these assessments I have been conscious of the need to avoid overlapping of general compensatory and of aggravated damages. Whilst minds may differ on the appropriate amounts for such awards, my assessments for exemplary damages total $75,000.

The purpose of aggravated damages is to compensate the Plaintiff for the harm done to him by a wrongful act that was aggravated by the manner in which the harmful act was carried out : Uren v John Fairfax & Sons Pty Ltd [1996] HCA 40 per Windeyer J at [3]; (1966) 117 CLR 118.

Taking the same approach that I have outlined above in respect of exemplary damages, if it is determined that aggravated damages require assessment then in respect of the three separate incidents relied upon by the Plaintiff and for the brief reasons outlined below, I consider that aggravated damages should be awarded in the following elements: (a) as to the first incident $5,000; (b) as to the second incident $30,000; (c) as to the third incident $30,000;

In the first incident if, contrary to my findings the Defendant were to have been found to have acted in a high-handed manner, such as not giving a warning before discharging his firearm, this would in my view constitute an egregious or aggravating factor by which indignity would be wrought on the recipient high-handedly. Again counter-balancing this is the fact that the Plaintiff's own behaviour was the precipitant for these events. In my view this would operate as a moderating factor for an award of aggravated damages, which propels the assessment towards the lower end of the range.

In the second incident, if contrary to my finding it were to be found that Mr Bingle attempted to shoot the Plaintiff despite the Plaintiff having his hands in the air and indicating he was unarmed and whilst the Plaintiff was asking not to be shot, this too would be a particularly egregious and high-handed circumstance of indignity calling for an award of significant aggravated damages.

In the third incident if, contrary to my findings Mr Bingle was found to have shot at the vehicle with the intention of causing harm this too would also be an egregious and high-handed circumstance of indignity calling for an award of significant aggravated damages.

These notional circumstances of egregiousness and high-handedness would in my view place the impugned conduct well apart from ordinary human fallibility and justify assessment of aggravated damages towards the higher end of the range : State of NSW v Riley [2003] NSWCA 208 per Sheller JA at [131].

As in the case of exemplary damages, in making this assessment I have also been conscious of the need to avoid overlapping of general compensatory damages, exemplary damages and of aggravated damages. Whilst minds may differ on the appropriate amounts for such awards, my assessments for aggravated damages total $65,000.

My composite assessment of the Plaintiff's damages in respect of all three claimed incidents is summarised as follows:

(a) General damages $160,000.00 (b) Interest on past general damages $9,008.00 (c) Future loss of earning capacity $298,154.00 (d) Future loss of superannuation $32,796.00 (e) Future treatment $7,500.00 (f) Past out-of-pocket expenses $267.50 (g) Exemplary damages $75,000.00 (h) Aggravated damages $65,000.00 Total $647,725.50

I have concluded that the Plaintiff's claim has not succeeded on any of the counts pleaded. If the claim had succeeded I would have awarded the Plaintiff damages of the order of $647,725.50.

I therefore make the following orders:- (a) Verdict and judgment for the Defendant; (b) The Plaintiff is to pay the Defendant's costs of the first trial and of the re-trial; (c) The exhibits may be returned; (d) Liberty to apply on 7 days notice if any further orders are required.

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