Cho v Dayoub

Background

1. In order to appreciate the issues for determination in the light of the parties' pleadings, some brief uncontroversial background to the proceedings is instructive.
2. For some time prior to late 2014 the Defendant lived at 10 Loch Lomond Crescent, Burraneer (Number 10), with his family. The Defendant continues to live at Number 10. In late 2014, the Plaintiff and her husband acquired, and moved into 12 Loch Lomond Crescent, Burraneer (Number 12). They continue to live at Number 12. The two properties adjoin, and comprise substantial residences with expansive water views over Burraneer Bay. A masonry wall separates the properties. The events which gave rise to these proceedings occurred whilst the parties were on their own premises.
3. On or about 1 April 2016, the Plaintiff purchased a property 24 Conrads Road, Mount Warrigal (Mount Warrigal). On 12 February 2018, the Plaintiff purchased a property 102 Shellharbour Road, Warilla (Warilla). Each of those properties was leased to tenants during the Plaintiff's ownership of them, the former being residential premises, the latter being let to a commercial entity. The properties are relevant to the Plaintiff's claim for economic loss.
4. Prior to mid-2019, although never "friends", the parties lived peacefully in their respective homes. Neither interfered with the other's quiet enjoyment of her/his home.
5. In July 2019, the Defendant erected a vertical steel beam immediately adjacent to the boundary wall between his and the Plaintiff's properties. On 30 July 2019, the Plaintiff complained to the Sutherland Shire Council ("Council") about the works which the Defendant had commenced. The Plaintiff made essentially two complaints, each of which appears to have had substance. The first was that the steel beam was impermissibly close to the boundary between the parties' properties. The second was that the works which the Defendant had commenced building, a shade cloth structure, required, but lacked, council approval. The Defendant did not have, or obtain council approval until quite some time later, inferentially as a result of the Plaintiff's complaint to the Council. The incident marked the commencement of an unfortunate and increasingly acrimonious relationship, which culminated in the events of Christmas Eve 2019. Those, and events which the Plaintiff alleged had occurred from August 2019 gave rise to the present proceedings.
6. On 30 July 2019, there was an exchange of words between the parties across their dividing boundary wall, each party remaining on her/his property . Although the topic of conversation is not in doubt- the Defendant's shade cloth construction- what was actually said is controversial.
7. On 26 August 2019, there was a further exchange of words between the parties, the Plaintiff's nephew and the Defendant's son across the dividing boundary wall. The Plaintiff and her nephew remained on her property. The Defendant and his son remained on the Defendant's property. That event is the basis of the first assault alleged by the Plaintiff. The Defendant denied that he committed any assault on that occasion.
8. In late August 2019, the Plaintiff made further complaints to the Council about the works which the Defendant was apparently continuing to undertake on his property.
9. On 27 September 2019, the Plaintiff received email advice from the Council that it had advised the Defendant to cease the building works on his property until development consent was obtained. The evidence does not establish that the Defendant did further work on the shade cloth shelter at that time, or until after the events of relevance in this case had occurred.
10. On 28 September 2019, the Plaintiff observed several broken eggs around her property. The Plaintiff alleged that, although neither she nor her husband or any witness in her case saw him do so, the Defendant was responsible for the broken eggs on her property. The Defendant denied ever having thrown eggs onto or around the Plaintiff's property. The Plaintiff alleged that, between 28 September and 25 December 2019, she found approximately 100 broken eggs around her property. No witness gave evidence in the Plaintiff's case of having seen the Defendant do anything with eggs. The Defendant denied responsibility for the eggs being there.
11. On 30 September 2019, the Plaintiff found multiple holes which had apparently been drilled into the tyres of a vehicle owned by her or her husband which was parked on the street in the vicinity of the Plaintiff's home, which she alleged was the work of the Defendant. No witness in the Plaintiff's case gave evidence of having seen the Defendant interfering with the tyres of any vehicle of the Plaintiff or her husband. The Defendant denied responsibility for any damage to any motor vehicle of the Plaintiff or her husband.
12. On 1 October 2019, the Plaintiff discovered holes which had apparently been drilled into a PVC sewerage pipe at the rear of her property, and was sprayed with fluid escaping from the pipe through such holes, which she alleged was the work of the Defendant. No witness in the Plaintiff's case gave evidence of having seen the Defendant doing anything of the kind alleged by the Plaintiff. The Defendant denied that he was responsible for any of the damage allegedly suffered by the Plaintiff.
13. On 4 October 2019, the Plaintiff discovered that a three metre section of boundary fence had been removed and placed on her property, damaging the handrail on wooden stairs at the rear of her property. The Defendant admitted that he had engaged a contractor to replace the wooden section of fence with metal fencing at his sole expense. The Defendant said that he was not present when the work was done by the contractor, and was not responsible for the placement of any timber on the Plaintiff's property. There is no reason to doubt the reliability of the Defendant's version of that event. Photographic evidence produced by the Plaintiff provides support for her claim with respect to the placement of timber fencing material on her property, but creates no obstacle to acceptance of the Defendant's account of this event.
14. On 23 October 2019, the Plaintiff discovered that cables for a CCTV camera focused on the front courtyard of her property had been damaged. The Plaintiff alleged that the Defendant was responsible for such damage. No witness in the Plaintiff's case claimed to have seen the Defendant damaging the Plaintiff's cables. The Defendant denied responsibility for any damage to the cables.
15. On 2 November 2019, there was an incident across the dividing boundary wall, involving the Plaintiff, her friend, Mr Angelo Nadis, and the Defendant. The Plaintiff and Mr Nadis remained on the Plaintiff's property. The Defendant remained on his property. This incident is the basis of the second assault alleged by the Plaintiff. The Plaintiff alleged that the Defendant sprayed her with a garden hose. The Defendant denied that he had done so.
16. On 17 November 2019, the Plaintiff discovered metallic shavings spread across her courtyard and the roof of her garage. The Plaintiff alleged that the Defendant was responsible for the shavings being placed on her property. No witness in the Plaintiff's case claimed to have seen the Defendant doing so. The Defendant denied that he was responsible for any metal shavings being on the Plaintiff's property.
17. Late on the evening of 24 December 2019, the Defendant, whilst standing on his rear balcony, sprayed the Plaintiff, who was standing within the bounds of her property, with water through a garden hose on a number of occasions. During the course of the incident the Plaintiff alleged that the Defendant said words to the effect of "You fucking crazy bitch, I want to kill you" on a number of occasions. The Defendant denied using those words. He could not deny the hosing, which was captured on the Plaintiff's CCTV. The Plaintiff alleged that, during the incident, the Defendant threw stones at or towards her on a number of occasions. The Defendant denied having done so. The exchanges between the parties continued until early into 25 December 2019. Throughout these reasons, the Court will refer to the events of late 24 and early 25 December 2019 as the events of Christmas Eve 2019.
18. On 26 December 2019, police attended the Plaintiff's premises in response to a complaint made by the Plaintiff with respect to the events of Christmas Eve 2019, which gave rise to the Plaintiff's trespass, assault and battery claims. Police charged the Defendant with offences under the Crimes Act 1900 (NSW) and the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
19. In January 2020, the Plaintiff complained to her general practitioner, Dr Meyerowitz, about anxiety and depression which she alleged were referrable to the conduct of the Defendant on Christmas Eve 2019, and was referred to a psychologist.
20. On 26 January 2020, the Defendant climbed on the boundary wall between the parties' properties. His doing so is not a pleaded part of the Plaintiff's claims.
21. Between March and early June 2020, the Plaintiff found a number of white landscaping pebbles around her property similar to those which she alleged had been thrown during the evening of 24 December 2019. No witness in the Plaintiff's case gave evidence of seeing the Defendant doing anything of the kind alleged by the Plaintiff. The Defendant denied having thrown stones, or done any of the things alleged by the Plaintiff.
22. On 24 April 2020, the Plaintiff sold Mount Warrigal.
23. On 2 July 2020, the Plaintiff commenced the present proceedings.
24. On 23 July 2020, the Plaintiff was admitted to Sutherland Hospital, and on 27 July 2020 was admitted to Wesley Psychiatric Hospital.
25. On or about 20 August 2020, the Plaintiff suffered injuries at the hands of a random attacker and was hospitalised.
26. On 4 October 2020, the Defendant climbed on the boundary wall between the parties' properties. His doing so is not a pleaded part of the Plaintiff's claims. Later that month the Plaintiff was readmitted to Wesley Psychiatric Hospital for a period of 10 days.
27. On 5 November 2021, the Defendant was found guilty of common assault on 24 December 2019, and received a conditional release order pursuant to s 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
28. On 17 November 2021, the Plaintiff was readmitted to Wesley Psychiatric Hospital where she remained until 11 January 2022.
29. On 24 November 2021, the Plaintiff sold Warilla.

The Parties' Pleadings

1. The Plaintiff alleged (paragraph 1 of the Amended Statement of Claim ("ASOC")) that on or about 26 July 2019 the Defendant erected two beams in the backyard of his premises and that (paragraph 2 ASOC) one of the two beams was located within one metre of the boundary between the property of the parties. The Defendant admitted those allegations.
2. The Plaintiff alleged (paragraph 3 ASOC) that she and her husband obtained a copy of the local council regulations and, on 30 July 2019, the Plaintiff's husband informed the Defendant that one of the two beams he had erected was too close to the boundary and in breach of council regulations. The Defendant did not admit those allegations in his Second Amended Defence but, at the hearing, did not dispute those allegations.
3. The Plaintiff alleged (paragraph 4 ASOC) that the Defendant said to her husband that he would not move away and would not cut the offending beam. The Defendant did not admit those allegations but, at the hearing, neither of those contentions was disputed.
4. The Plaintiff alleged (paragraph 5 ASOC) that on or about 5.00 p.m. on 26 August 2019 she was in the backyard of her home in the company of Woo Hiun Kim. The Defendant admitted that at the time the Plaintiff alleged, he had observed her in her backyard with another person who he was not able to identify. At the hearing it was not in dispute that the person who was present with the Plaintiff in her backyard was Mr Kim, the Plaintiff's nephew.
5. The Plaintiff alleged (paragraph 6 ASOC) that she said to the Defendant words to the effect that one of the beams had been erected by him in breach of local council rules and that the Defendant (who was in the company of his son) said to her in a loud voice words to the effect of "It will not go well for you if the council gets involved". The Defendant denied that he said those words.
6. The Plaintiff alleged (paragraph 7 ASOC) that she then said to the Defendant words to the effect of "What do you mean by that?", to which the Defendant allegedly replied "You will see, just wait and find out", called her a "fucking stupid woman" and then threw several objects violently against the boundary wall. The Defendant alleged that, whilst remaining on her own side of the wall, the Plaintiff held a mobile phone towards him which appeared to the Defendant to be being used to film him, and that he asked the Plaintiff to "leave me alone" and "go away", but that the Plaintiff refused to stop and said to him "What are you doing?" and "I'm going to call the Council on you". The Defendant admitted that he called the Plaintiff words to the effect of "a fucking crazy stupid bitch", but did so in response to the Plaintiff's alleged conduct, and without intending to cause injury to the Plaintiff.

Issues for determination

1. The issues for determination emerge from the pleadings as being: 1. whether the Plaintiff has discharged the onus of proof which she bears in respect of disputed issues of fact with respect to each of the occasions on which the Plaintiff alleged that she was the victim of trespass to the person, assault or battery by the Defendant; 2. whether such conduct as the Plaintiff establishes constituted trespass to the person of the Plaintiff, an assault upon the Plaintiff and/or a battery of the Plaintiff on any of the occasions alleged by her; 3. whether any tortious conduct proved against the Defendant caused the Plaintiff injury, loss or damage, and whether such conduct was the sole cause of such injury; 4. whether the any tortious conduct proved against the Defendant was intended to cause injury to the Plaintiff within the meaning of s 3B(1)(a) of the Civil Liability Act 2002; 5. whether the assessment of any damages to which the Plaintiff establishes an entitlement is pursuant to the Civil Liability Act or the common law; 6. the nature seriousness and likely duration of any injury which the Plaintiff is found to have suffered as a result of the tortious conduct of the Defendant; 7. whether any tortious conduct proved against the Defendant is causally connected to any injury, loss or damage found to have been suffered by the Plaintiff; 8. the extent to which any injury, loss or damage found to have been suffered by the Plaintiff as a result of the Defendant's tortious conduct was caused or aggravated by any pre-disposition of the Plaintiff to suffer such loss or damage; 9. the extent to which an attack on her by a third party in August 2020 aggravated or prolonged any injury, loss or damage suffered by the Plaintiff on Christmas Eve 2019; 10. whether the Plaintiff has suffered any past, present, or will suffer any future economic loss as a result of the tortious conduct of the Defendant; 11. the remoteness from the tortious conduct of the Defendant of any past, present or future alleged economic loss allegedly sustained by the Plaintiff; 12. the quantum of any general damages to which the Plaintiff is found to be entitled; 13. whether the Plaintiff is entitled to aggravated and/or exemplary damages.

Basis of assessment of the Plaintiff's damages if liability established

1. In comprehensive written submissions filed on behalf of each party at the conclusion of the hearing, the Plaintiff particularised her damages on the basis that they were determined in accordance with the common law as: 1. general damages $200,000; 2. aggravated damages $20,000; 3. exemplary damages $5,000; 4. interest on past general, aggravated and exemplary damages $9,360; 5. past economic loss $97,334; 6. interest on past economic loss $2,515; 7. future economic loss $202,258; 8. future medical and other treatment expenses $91,845 (total $628,712, plus out-of-pocket expenses).
2. If the Plaintiff's damages were awarded pursuant to the provisions of the Civil Liability Act, the amounts claimed were: 1. non-economic loss damages $199,000; 2. past economic loss $97,334; 3. interest on past economic loss $2,515; 4. future economic loss $177,864; 5. future medical and other treatment expenses $51,420.
3. Although disputing that the Plaintiff was entitled to any damages, and without resiling from that contention, the Defendant ultimately submitted that the Plaintiff should be awarded $21,210 if the Plaintiff established liability, and her damages were governed by the provisions of the common law, which comprised general damages of $20,000 and past treatment expenses of $1,210. If any damages to which the Plaintiff was entitled were governed by the provisions of the Civil Liability Act, the Defendant submitted that the only recoverable loss or damage was the sum of $1,210 for past treatment expenses.

Evidence

1. The Plaintiff filed a Tender Bundle (Exhibit P1) which contained the pleadings, medical reports of Dr Enrico Parmegiani, a medicolegal Psychiatrist who gave evidence on behalf of the Plaintiff, the Plaintiff's primary and subsequent Affidavit, Affidavits by the Plaintiff's husband, John Coolman, an Affidavit by Angelo Nadis and an Affidavit by Woo Hiun Kim. The Exhibit also comprised numerous receipts and other source documents.
2. As agreed with Counsel for the parties at the commencement of the hearing, although each of the parties' Tender Bundles was received in evidence, apart from source documents, and particularly the Plaintiff's medical and hospital records and NSW police records, the provenance of which was not controversial, the Court has relied only upon those documents to which it was expressly referred by counsel during the course of the hearing, or in the course of cross-examination where that was required. The Court is satisfied that neither party was in any doubt as to which documents were taken into consideration, and which documents were not.
3. The Plaintiff relied on CCTV footage of the events of 24 December 2019 (Exhibit P2). The CCTV footage was played during the course of the hearing during cross-examination of the Plaintiff, and later of the Defendant. Although the Court does not criticise Counsel for doing so, the footage was not then played sequentially from its commencement until its conclusion. As the transcript confirms, the Court experienced some difficulty in playing the CCTV footage of the events of 24-25 December 2019 from start to finish, as it needed to in order to properly evaluate the competing claims of the parties with respect to what occurred on Christmas Eve 2019. The Court subsequently, in response to its request, received, and has viewed the totality of Exhibit P2 from start to finish, for which it is grateful.
4. The Plaintiff's statement to police of 24 December 2019 was in evidence (Exhibit P3). A further medicolegal report of Dr Parmegiani of 6 November 2023 (Exhibit P4) was also relied upon by the Plaintiff.
5. The Defendant relied on a Tender Bundle (Exhibit D1) which contained two Affidavits sworn by him, Affidavits sworn by his wife, daughter and son, together with Affidavits sworn by Ali Salhab, Jason Stokes, Rosanna Martinelli and Susanna Martinelli. After objections, little remained in all but the Affidavits of the Defendant. Of what remained, little of the affidavits impacted materially on the determination of disputed issues. In those circumstances, apart from the Defendant, none of his witnesses was required for cross-examination.

Credit

1. The credibility, or reliability of the evidence of the Plaintiff and, to a lesser extent, of the Defendant assume considerable significance in the determination of the proceedings.
2. The credibility of the Plaintiff's husband, Mr Coolman, and her nephew, Mr Woo Hiun Kim, was not suggested to have been damaged by their cross-examination. As will be seen, their evidence provides only limited assistance to the Plaintiff's case. Properly, Mr Coolman's silence with respect to numerous allegations made by the Plaintiff, which he ought to have been able to corroborate, and the vagueness of his evidence in support of the Plaintiff's asserted post-Christmas Eve 2019 symptoms and conduct were relied upon by the Defendant in support of his contentions that the Plaintiff failed to prove her allegations with respect to those matters.
3. What happened on Christmas Eve 2019 is ultimately not in doubt in view of the contents of Exhibit P2. Although there is no CCTV footage of 26 August 2019 or 2 November 2019, the Court has the benefit of accounts of those events from the Plaintiff which were made far closer in time to the events, and before these proceedings commenced. The Plaintiff bears the onus of proof of those events. As will be seen, when those matters are considered, the version of events which is most likely to be reliable is the version which was given closest in time to the events themselves.
4. In Watson v Foxman (1995) 49 NSWLR 315 McLelland CJ in Equity considered in detail at [319] the "fallibility of human memory" and "the process of conscious and unconscious reconstruction of what occurred, or was said in a conversation". The plaintiff's evidence of disputed facts regularly revealed that "fallibility", and "reconstruction" with respect to a number of disputed matters of substance.
5. In Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168, Hodgson JA said at [14] that in deciding facts according to the civil standard of proof "the Court is dealing with two questions: not just what are the probabilities on the limited material which the Court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision". Those observation apply to the events of 26 August 2019 and 2 November 2019. The latter observation applies to the Plaintiff's allegations with respect to eggs, metal shavings, tyre damage, damage to a sewer pipe and the replacement of a section of boundary fencing.

The evidence of the Plaintiff

1. The credibility of the Plaintiff has particular significance in evaluating whether she was in fear during the assaults or batteries which she alleged had occurred, and evaluating whether the Plaintiff suffered and continues to suffer from the symptoms which she alleged, and the extent to which any condition suffered by the Plaintiff was caused by those events. The evaluation of the Plaintiff's alleged symptoms, and their causes, also assume significance when the medicolegal evidence is assessed as the opinions of Dr Parmegiani and Dr Roberts were very much influenced by their views of the reliability of the Plaintiff's reports of her symptoms.
2. It was submitted by the Defendant that the Plaintiff's credibility was "substantially impugned through cross-examination". In support of that contention the Defendant submitted that the Plaintiff had been unwilling to concede that she had a pre-existing history of mental disorders, including anxiety and depression syndrome for which she was treated with Lexapro and Antenex. The contentions with respect to the Plaintiff's treatment history are essentially well-founded. The allegation of prior "mental disorders" is not. It is not in doubt that the Plaintiff had not been diagnosed with a psychiatric or psychological condition prior to Christmas Eve 2019. Whether the Plaintiff was pre-disposed to suffering psychological or psychiatric injury prior to that date remains an issue for determination.
3. In cross-examination (T 53) the Plaintiff was asked about the prescription of Antenex and Lexapro in about 2014. During the course of that cross-examination, and making due allowance for linguistic uncertainty, the Plaintiff's answers were evasive and confusing. Whether that was deliberate or conscious, is of little moment. The Plaintiff's answers during cross-examination, on a range of topics, established that the Plaintiff's evidence with respect to her uncorroborated disputed claims must be approached with caution.
4. The Defendant submitted that, when it seemed advantageous to her, the Plaintiff claimed that her memory failed her, saying, "I can't remember", notwithstanding that, at other times, when saying so seemed to her advantage, the Plaintiff said that she had a "good memory". That submission has merit. The transcript reveals numerous instances of those contradictions. The contradictions were not with respect to minor or inconsequential matters. They did not result from complex or linguistically sophisticated questions. The Plaintiff's memory is fairly described as "convenient".

The evidence of Woo Hiun Kim

1. The Plaintiff's nephew Woo Hiun Kim swore an Affidavit on 26 August 2022. Mr Kim's Affidavit dealt with the incident on the afternoon of 26 August 2019. Mr Kim was cross-examined by AVL from the United Kingdom where he resides.
2. The first matter to which Mr Kim referred was a statement by the Plaintiff to the Defendant that a "beam is too close to the boundary" and was "breaking the council regulations". Mr Kim said that the Defendant responded "It will not go well for you if the council gets involved" and, alleged that, after the Plaintiff asked "What do you mean?" the Defendant replied "You will see, just wait and find out". As is not in doubt, the Plaintiff had complained to the council about the offending beam by 30 July 2023. The Plaintiff claimed that she felt threatened by the Defendant's words. There is no evidence that the Plaintiff ever "backed off" on her complaints to the Council.
3. Mr Kim referred to the Defendant calling the Plaintiff "a fucking crazy stupid bitch", a "stupid fucking woman", and "fucking stupid woman". Mr Kim said that he "felt threatened and was frightened for the Plaintiff's safety". He stated that the Plaintiff "needed to sit down" inside her house, and was "shaking and short of breath".
4. That night Mr Kim accompanied the Plaintiff to Sutherland Police Station. The Court has earlier recorded the terms of the COPS entry with respect to their attendance. The COPS entry (Exhibit D3, page 3429), created on 28 August 2019, recorded the Plaintiff and the Defendant having become "involved in an argument about a fence", and "ongoing issues with the fence". The COPS entry recorded "there were no threats made to the victim, however she feels that the (Defendant) was rude towards her". The entry concludes "there were no offences disclosed and the report is for record only".
5. Mr Kim confirmed in cross-examination (8 November 2023, page 229) that he was asked to give evidence in the proceedings two to three months before he swore his Affidavit. That would have been in about May or June of 2022, more than two and a half years after the incident on 26 August 2019. Mr Kim rejected any suggestion that he and his aunt had jointly prepared Mr Kim's Affidavit. The Court does not accept any suggestion that Mr Kim and the Plaintiff "put their heads together" with respect to Mr Kim's Affidavit. Although there is considerable similarity in the narratives of the incident provided by the Plaintiff and Mr Kim, the Court does not accept that their accounts were identical, or so similar, as to suggest that Mr Kim and the Plaintiff had collaborated in preparing their Affidavits.

The evidence of Angelo Nadis

1. Mr Angelo Nadis was a witness in the Plaintiff's case. Mr Nadis swore an Affidavit on 3 August 2022. Mr Nadis deposed in his Affidavit to being at the Plaintiff's home on the afternoon of 2 November 2019. Mr Nadis alleged that the Defendant then held a mobile phone with the camera pointed towards where he was standing, prompting him to say to him "you don't have authority to take photographs of me", to which the Defendant allegedly replied "You fucking idiot. I can do whatever I want on my property". The Defendant then allegedly said to Mr Nadis "and I'll fucking fix you too", at a time when he was pointing a garden hose at himself and the Plaintiff. Mr Nadis said that he asked the Defendant "Are you threatening me?" to which the Defendant allegedly replied "You fucking idiot bitch slut". The Defendant then allegedly sprayed a stream of water from the hose onto the Plaintiff and Mr Nadis, and continued to do so for "a few seconds", soaking Mr Nadis. Mr Nadis alleged that the Defendant then raised a hand and extended his "ring finger and thumb in the shape of a gun pointed towards the Plaintiff", and that the Defendant "appeared to me to be agitated and aggressive". The Plaintiff and Mr Nadis then went inside the Plaintiff's house.
2. Mr Nadis also recorded his observations after he arrived at the Plaintiff's home on Christmas Eve 2019. Mr Nadis alleged that, after Christmas Eve 2019 he "observed changes in the Plaintiff's behaviour and demeanour", of which he gave little detail.
3. Although Mr Coolman complained to police on 3 November 2019 about statements allegedly made to him by the Defendant on 2 November 2019, there is no COPS entry in relation to the alleged events of 2 November 2019. Having regard to the Plaintiff's history of complaining to police, it is improbable that, had anything of the kind alleged by the Plaintiff and Mr Nadis on that day occurred, the Plaintiff would not have reported that to the Police. The parties' history of Police involvement suggests that it is improbable that, had the Plaintiff and/or Mr Nadis complained in the terms alleged in these proceedings, the COPS entries would not have recorded their complaints.
4. Mr Nadis was cross-examined with respect to credit, and the events of 2 November 2019. In cross-examination (T 261) Mr Nadis was referred to his Affidavit and his allegation that "you were sprayed by a hose by Mr Dayoub on 2 November? You don't remember it?" to which he replied "I don't remember, no". As the cross-examination developed, firmly but courteously, Mr Nadis became evasive and argumentative.

The evidence of the Defendant

1. It is unclear whether English is the Defendant's first language. Conscious as a result of how the Defendant answered questions that it may not be, the Court has avoided an overly literal consideration of the Defendant's evidence. Relevant in that regard are circumstances which impact upon the probabilities of the Defendant's evidence being truthful and reliable, what he has previously said, and his obvious substantial financial and reputational motivation to present a very different version of critical disputed events to that advanced by the Plaintiff. Save on one or two occasions during his cross-examination, the Defendant was not evasive or argumentative, and did not make speeches or offer self-serving or non-responsive explanations for his conduct. Whilst this necessarily limited the scope for destructive cross-examination arising from such an approach to giving his evidence, and particularly by comparison with the Plaintiff, the Defendant presented as a generally more reliable recounter of the facts than the Plaintiff. The Defendant did not, and could not dispute what the CCTV footage of Christmas Eve revealed.
2. The Defendant was cross-examined (T 343) in relation to his asserted belief that he could "do whatever you like on your land and no-one can tell you what to do and what not to do". The Defendant responded "of course, except the council, not the neighbours". The Defendant rejected the suggestion of Mr Coolman in his Affidavit at paragraph 16 that he "crunched … into a ball" and threw away the notice of council regulations which Mr Coolman handed to him on an unspecified date in August 2019. The Court has not seen a copy of those regulations. The conduct of the Defendant on Christmas Eve was consistent with his believing that he could do whatever he liked on, or from his own land.
3. The Defendant denied that he had done as Mr Coolman alleged. Mr Coolman was not cross-examined on his allegation in that regard. On balance, the Court is persuaded that Mr Coolman's account of the handing of the council notice, and the Defendant's treatment of it, is more likely to be correct. Ultimately little turns on that preference, but it is consistent with a broader theme advanced by Counsel for the Plaintiff in cross-examination of the Defendant, which was that the Defendant was so angered by the Plaintiff and her husband's frustration of his construction of the shade awning that he resorted to verbal and physical violence in order to cause the Plaintiff fear, stress and anxiety. As is not in doubt, whatever the Defendant's intentions, they had no impact on the Plaintiff or Mr Coolman in terms of action with the council. It is not in doubt that, whether it was six months or twelve months before it happened, the Defendant had to move the offending beam one metre from the boundary between the parties' properties, and comply with the council's requirements with respect to his pool shade. This cannot have best pleased the defendant.

The incident on 26 August 2019

1. The Plaintiff and the Defendant each have substantial motivation to remember the events of that day differently. The evidence suggests that the earliest that either of them swore an Affidavit in relation to the incident was three years after the event. The evidence does not reveal that either made a contemporaneous note or diary entry about the event. The Defendant admitted that he had called the Plaintiff a "crazy fucking bitch" during that incident. That admission is consistent with the complaint made to the Police by the Plaintiff and her nephew, Mr Kim, that the Defendant had been "rude" to the Plaintiff. The Plaintiff's claims with respect to the actions of the Defendant on that day are materially inconsistent with what she and Mr Kim reported to Police about the incident.
2. The evidence does not establish that the Defendant did anything on that occasion which constituted an assault on, or battery of the Plaintiff. Although the Plaintiff asserts that she was "short of breath and shaking" and "felt shocked" and felt "physically threatened and fearful for my safety", the COPS entry with respect to the complaints made by the Plaintiff and her nephew was that "no threats were made". No reason for Police misreporting what they were told has been advanced.
3. The Plaintiff's claim that she was in fear of the Defendant as a result of his allegedly saying that things would "not go well for you if the council gets involved" needs to be considered against the background that, more than three weeks earlier, the Plaintiff had complained to the Council about the erection of the beam on the boundary between the two parties' properties. The Plaintiff did not resile from, or in any way "back-off" on her complaints to the Council after the incident. The Court is not satisfied that the Defendant's threat, if it was a threat, put the Plaintiff in fear for her safety, at the time it was made, or subsequently.
4. The Plaintiff bears the onus of proof of her allegations. Largely because of what was reported to and recorded by Police, within hours of the incident, the Court is not satisfied that the Defendant assaulted the Plaintiff on that occasion or that anything said or done by the Defendant on that occasion put the Plaintiff in fear for her safety. Mr Kim's evidence creates no obstacle to so finding. The unreliability of the Plaintiff's evidence provides further support for the finding.

The incident on 2 November 2019

1. The Court is satisfied that there was an unpleasant exchange between the Plaintiff and Mr Nadis, and the Defendant on 2 November 2019. As with the incident on 26 August 2019, the first time when the Plaintiff and Mr Nadis and the Defendant made statements about the alleged events were between two and a half and three years after the incident, by which time all of them had substantial motivation to recall the event differently.
2. The Court accepts that the Defendant again called the Plaintiff a "fucking idiot, bitch, slut" or words to that effect. The Plaintiff asserted that the Defendant hosed her and Mr Nadis on that occasion. The Plaintiff asserted in her Affidavit [114] that her husband called Sutherland Police Station and "Senior Constable Ford attended my property that evening". There is no COPS entry recording the Plaintiff as having ever made the complaint to Police which she alleged in her Affidavit. Having regard to the readiness of the Plaintiff to make complaints to the police about the Defendant, that absence is significant.
3. There was undoubtedly an unpleasant exchange on 2 November 2019, but the Court does not have an actual persuasion that the Defendant assaulted the Plaintiff, or committed a battery on her, or that the Plaintiff was in fear for her safety as a result of anything said or done by the Defendant. The Plaintiff said that she was "very upset to learn that such an offence word" as "slut" had been used towards her and that she was "unnerved" by the Defendant behaving "in such a hostile manner towards me and my guest on my property".
4. The Plaintiff's alleged that her fear arose from being sprayed with a hose by the Defendant and "seeing him make a threatening gesture with his hand to Angelo and myself". In cross-examination, Mr Nadis could not recall the hose being used. The unreliability of the Plaintiff's version of disputed events identified in detail earlier in these reasons also militates against finding her allegations proved.
5. In reality, the more serious allegation made by the Plaintiff is probably the hand gesture made by the Defendant. It is improbable that, if the Plaintiff had made a complaint to Police in the terms alleged in her Affidavit, there would not, at least, have been a COPS entry and, equally probably, some follow up by the Police, or advice to the Plaintiff and/or Mr Nadis with respect to the ability of the Plaintiff and Mr Nadis to seek an Apprehended Violence Order against the Defendant.

The events on Christmas Eve 2019

1. The Plaintiff alleged that she was the victim of assaults and batteries at the hands of the Defendant on Christmas Eve. The tort of assault is "directed to the apprehension of contact. Assault is an intentional offer of force or violence to the person of another, who reasonably believes that the threat will be carried out forthwith. The menace must be accompanied by an intention to raise in the mind of the person threatened an apprehension that violence is about to be committed. It is committed when a defendant commits an act which causes a plaintiff immediately to apprehend contact with his or her person" (Mansour v Marhop Pty Limited at [65]).
2. In Rixon v Star City Pty Limited (2001) 53 NSWLR 98, Sheller JA stated, at [56] that: "A traditional definition of assault is "an overt act indicating an immediate intention to commit a battery, coupled with the capacity of carrying that intention into effect; see Clerk v Lindsell at 590 [12-12]."
3. His Honour also referred [57] to JG Fleming, Law of Torts, 9th Ed (1998) Sydney, LBC Information Services at 31-32: "Assault consists in intentionally creating in another person an apprehension of imminent harmful or offensive contact … there may be an assault without a battery if the threat to inflict unlawful force is not in fact carried out … Since the gist of assault lies in the apprehension of impending contact, the effect on the victim's mind created by the threat is the crux, not whether the defendant actually had the intention or the means to follow it up. The intent required for the tort of assault is the desire to arouse apprehension of physical contact, not necessarily to inflict actual harm."
4. Sheller JA further said [58] that "Proof of assault requires proof of an intention to create in another person an apprehension of imminent harmful or offensive contact" and that "If the assault lies in creating an apprehension of impending contact, proof of the assault does not require proof of an intention to follow it up or carry it through".
5. The Court has viewed the compilation of CCTV footage used in cross-examination which the parties provided after the hearing in order to evaluate the events of Christmas Eve from start to finish. The findings of fact with respect to the Plaintiff's claims in assault, battery and trespass to the person are informed by that footage. The nature and content of the footage renders reliance upon it for what it shows safe, and involving no impermissible speculation or hypothesising - what it shows is what happened that night.

Findings with respect to the events on Christmas Eve 2019

1. In C Van der Lely NV v Bamfords Limited (1963) RPC 61 at 71 Lord Reid said that a judge ought not to attempt to "read or construe" a photograph but rather to look at the photograph "in determining which of the explanations given by the witnesses appears to be most worthy of acceptance". In Stillwell Trucks Pty Limited v McKay & Ors [2002] NSWCA 292 at [73] Campbell AJA, with whom Handley and Beazley JJA agreed, said that the "use of other components in the photograph or series of photographs to identify objects in a photograph is an appropriate procedure. Upon occasion it may be a matter of common sense. In a case involving machinery parts, as here, it would normally require an expert to make the identification".
2. In Blacktown City Council v Hocking at [169] Tobias JA said that: "It should be noted that the use by a trial judge of photographs is nothing new. They can … be descriptive of what a witness says he or she saw, being a representation of the witness' knowledge and observations. But they should not be used by a judge to make findings of fact which are otherwise unsupported by the evidence and are therefore no more than conjectural."
3. His Honour added at [170] that the use of photographic evidence must be the subject of "careful delineation", particularly "as a means of proof of matters of fact". His Honour added that: "This is not to say that photographs can have no probative value of themselves even in the absence of an oral description of what is depicted; only that care must be taken to ensure that they are not used as the sole source from which a primary fact is to be inferred where that fact is not revealed on the face of the photographs such as the condition of a structure at a time sufficiently removed from that when the photographs were taken."
4. The Court is satisfied that the primary facts with respect to the events of Christmas Eve 2019 are revealed "on the face" of the CCTV footage, and that they are revealed with such clarity as to rely upon them as the best evidence of what then occurred. Doing so involves no impermissible conjecture or interpretation by the Court.
5. The Court is comfortably satisfied that, by threatening the Plaintiff with a hose on Christmas Eve 2019 the Defendant intended to create in the Plaintiff an apprehension of imminent contact and/or offensive contact. That apprehension was reasonable, having regard to the Defendant's earlier application of a forceful spray of water from the hose against the Plaintiff's home. It was reasonable in the circumstances for the Plaintiff to apprehend that, when the Defendant appeared on his balcony armed with a hose, that she was likely to be sprayed with it, as she was. An apprehension of being intentionally sprayed by a neighbour with a hose comfortably falls within the category of contact which can be considered offensive.

Whether the Plaintiff's claim is governed by the Civil Liability Act 2002 (NSW)

1. The Plaintiff contended that the assessment of her damages is not governed by the provisions of the Civil Liability Act 2002 (NSW) (Civil Liability Act). The Defendant contended that they are.
2. Section 3B(1) of the Civil Liability Act relevantly provides that: "The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows: (a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person - the whole Act except"
3. The Plaintiff submitted that "intent" is to be considered in relation to a specific act, and not a specific cause of action. The Plaintiff further submitted that the subjective state of mind of the Defendant may be inferred from circumstances other than the Defendant's own perception, and is a question of fact to be determined not only by having regard to the Defendant's subjective state of mind, but also by reference to objective facts from which intention may be inferred.
4. It was submitted by the Plaintiff that it was a presumption of law that a person intends the natural and probable consequences of their acts (Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69). It is not in contest that the Defendant intended to spray water onto the Plaintiff with his garden hose. That involved no inadvertence, or negligence. What happened was what the Defendant intended would happen. The more difficult issue is whether the Defendant did what he did with the intention of causing the Plaintiff "injury". The Plaintiff submitted that evidence that a person is aware that his or her conduct will produce a particular result provides support for an inference of intent to be drawn. The Defendant did not disagree with that submission.
5. The Plaintiff submitted that it was "sufficient to engage s 3B(1)(a) for a person, knowing that injury might result from an intentional act by them, nevertheless takes the risk of that injury occurring, not whether the injury occurs or not - i.e. recklessness". That proposition was sought to be supported by the decision in State of New South Wales v McMaster [2015] NSWCA 222. In view of the Court's findings, it is unnecessary to rely upon "recklessness" in order to determine this issue.

Whether the Plaintiff suffers from a psychiatric or psychological condition

1. The Defendant disputed that the Plaintiff was currently suffering from any psychological, psychiatric or other medical condition which was causally connected with any the conduct of his on Christmas Eve 2019. The Defendant asserted that, to the extent that the Court found the Plaintiff to have any current psychiatric or psychological condition, the conduct of the Defendant on Christmas Eve 2019 could only have aggravated pre-disposing conditions which the Plaintiff had prior to Christmas Eve 2019. The Defendant also submitted that the Blessington stabbing in August 2020 caused or contributed materially to any psychiatric or psychological condition from which the Plaintiff was found to currently suffer.
2. The evidence which informs these issues is the Plaintiff's evidence of her alleged symptoms, the clinical records and/or reports of the Plaintiff's treating health practitioners who have not been called as witnesses in the Plaintiff's case, hospital records and the medico-legal reports of psychiatrists who have never treated the Plaintiff. The Court has set out in detail its reasons for finding that the Plaintiff's evidence of disputed matters, which include her alleged symptoms and their alleged consequences, should be approached with caution, and not found proved unless it is corroborated by other reliable evidence. Before considering the medico-legal evidence, it is appropriate to consider the contemporaneous records of the Plaintiff's treating health professionals.

Clinical records of Dr Meyerowitz and reports of Associate Professor Allan

1. The Plaintiff was cross-examined with respect to a Discharge Summary produced by St George Hospital on subpoena (Defendant's cross-examination material page 2278) dated 7 February 2014, which described the Plaintiff as "57 year old lady with atypical chest pain for 2 months". The notes further recorded (page 2279) "2 month history of non-radiating chest tightness, worsens at night but gets better in midday. Chest tightness has been constant and persistent. Associated with dyspnoea, palpitations. States has exertional dyspnoea. No diaphoresis at rest. Denies calf pain/recent travel. States pain improved after taking aspirin prior to arrival."
2. The Plaintiff was cross-examined with respect to her consultations with Dr Allan, an Interventional Cardiologist, who she saw in 2014 on referral from Dr Meyerowitz. The documents on which the Plaintiff was cross-examined were admissible as business records. Properly, there was no suggestion to the contrary, or objection to their tender, or to the Plaintiff being cross-examined on them.
3. On 24 March 2014 Dr Allan reported on his consultation with the Plaintiff to Dr Meyerowitz (Defendant's cross-examination bundle page 2285). Dr Meyerowitz is the only General Practitioner who the evidence reveals has been the Plaintiff's regular or treating GP. In his report, Dr Allan reported that the Plaintiff "has had a syndrome of chest tightness and palpitation for approximately 3 to 4 months which she describes as a burning sensation in her chest when at the same time she is unable to take in a full breath. It is often at the time of stress or an emotional period in her life and it usually bothers her most at night". Dr Allan further recorded that there was "a family history of hypertension", that the Plaintiff "has had a mild hypertension herself and has been well managed on Atacand 8mg a day". Although the Plaintiff disputed other aspects of Dr Allan's recording of her statements, those statements were not asserted to have been inaccurate.
4. Dr Allan agreed with Dr Laurence Schneider's opinion based on ECG results obtained earlier in the year that the Plaintiff's "symptoms were probably secondary to an anxiety syndrome". Dr Allan reiterated his view that "the most likely cause (of the Plaintiff's reported symptoms) is anxiety and there is no evidence of any myocardial ischaemia". Dr Allan said he had "increased (the Plaintiff's) Inderal to 20mg twice a day to see if that helps further".

Reports of Barbara Preston

1. On 14 February 2020 Barbara Preston, a Clinical Psychologist with Uplift Psychological Services wrote to Dr Meyerowitz after he had referred the Plaintiff to her. By that time the Plaintiff had attended five sessions with Ms Preston for "psychological treatment regarding generalised anxiety and depression". Ms Preston noted that the Plaintiff reported "experiencing acute psychological stress and anxiety since September 2019 with stomach disturbance and heart palpitation frequently occurring to her. These acute stress symptoms have occurred following her property being pelted with eggs, with metal shavings and damage occurring in other ways. She advises that she has received verbal threats against her safety and been assaulted by forceful hose pressure against her body. Joanne has recorded many instances of adverse action being taken against her in her home and property and she has been assisted with a letter re her attendance and treatment". Ms Preston recorded that "psychological treatment is being provided to (the Plaintiff) to help her to reduce her acute level of stress and anxiety which could affect her permanent physical and mental health".
2. On 18 March 2020 Ms Preston again wrote to Dr Meyerowitz (Defendant's cross-examination bundle 3268). Ms Preston identified the Plaintiff's referral by Dr Meyerowitz to her for "psychological treatment regarding generalised anxiety and depression". By that time the Plaintiff had attended six sessions with Ms Preston. Ms Preston noted the Plaintiff's report that she "continues to experience acute psychological stress and anxiety with stomach disturbance and heart palpitation when she is confronted by neighbours parking across her driveway. The acute stress symptoms has decreased as her property is no longer under attack from eggs or damage occurring in other ways. She advised that she had previously received verbal threats against her safety and been assaulted by forceful hose pressure against her body but an interim AVO is being processed through a court". Ms Preston wrote that "psychological treatment is being provided to (the Plaintiff) to help to reduce her acute level of stress and anxiety and does appear to be helping". The Plaintiff was to continue to attend on Ms Preston.
3. On 4 August 2020 (Defendant's cross-examination bundle 3341) Ms Preston wrote to Dr Meyerowitz. By that time the Plaintiff had attended ten sessions with Ms Preston. Ms Preston recorded the Plaintiff as reporting "her ongoing acute psychological stress and anxiety with stomach disturbance and heart palpitation when she is confronted by neighbours parking across her driveway etc. There was some improvement when her property was no longer under attack from eggs or damage occurring in other ways. When other forms of what she names as harassment continue against their wellbeing and that of their visitors. She advised that she had previously received verbal threats against her safety and been assaulted by forceful hose pressure against her body but an AVO was being processed through a court. With no end in sight, Joanne is pursuing other legal action". Ms Preston recorded that "psychological treatment with (the Plaintiff) to help to reduce her acute level of stress and anxiety and does appear to be helping Joanne at the time. She will continue to be seen for ongoing psychological treatment and has been provided a letter re her symptoms and treatment".

Wesley Hospital records

1. The Plaintiff was cross-examined on the clinical records of Wesley Hospital produced on subpoena and contained in the Defendant's cross-examination bundle.
2. On 27 July 2020 a Registered Nurse (RN) at the hospital completed an intake interview with the Plaintiff. The Plaintiff was recorded as having "stopped" her attendance at church "every Sunday" due to Corona virus. The Plaintiff's evidence in cross-examination (Defendant's cross-examination bundle page 347) was that she had ceased her attendances because of the Defendant's conduct. No rational basis for finding that the RN "got it wrong" emerges from the evidence.
3. The "personal risk assessment" completed by the RN on the Plaintiff's admission to the hospital recorded "Yes" against the item "previous diagnosis of a mental illness". That is not inconsistent with the clinical notes of Dr Meyerowitz and Ms Preston's letters.
4. The clinical notes record that, later on the day of the Plaintiff's admission to the hospital (Defendant's cross-examination bundle page 2564) the Plaintiff "presented with low mood, poor sleep, poor appetite, anxiousness and poor concentration exacerbated due to conflict with next door neighbour. Patient reported that she had been experiencing these symptoms since October" 2015 or 2019. The Court is not comfortable that the hand-writing is sufficiently clear to enable it to find to which date the entry is intended to refer. If, as seems likely, it was a reference to October 2019, that preceded Christmas Eve, and anything more than "rudeness", by two months.
5. Entries on the clinical notes for 11 August 2020 (Defendant's cross-examination bundle 2614) record the Plaintiff as being "polite and cooperative on approach. Mood (indecipherable) euthymic with reactive affect … reported feeling better after having propanolol. Nil overt agitation or distress evident during conversation. Attending groups. Attending meals and medications. Nil concerns raised until the time of report". Propranolol is a beta blocker prescribed for heart problems, anxiety and migraine.
6. The clinical notes for 12 August 2020 (Defendant's cross-examination bundle 2618) record that the Plaintiff had been "seen by Dr Zhang this morning, can be discharged tomorrow. But Pt requested to stay longer, permission granted from Dr Zhang to stay until Friday. Observed to be socialising well with the peers otherwise nil any other concerns ator".

Medico-legal reports of Dr Fernando Roldan

1. The Defendant relied on three reports prepared by Dr Fernando Roldan, a Consulting Clinical Psychologist, dated 1 November 2022, 20 October 2023 and 21 October 2023 (Defendant's Tender Bundle Tabs 15, 16, 17). Dr Roldan first saw the Plaintiff on 18 October 2022. Dr Roldan has never been in a therapeutic role with the Plaintiff, his engagement being to provide medico-legal reports. Dr Roldan was not required for cross-examination on his reports. His qualifications, experience and methodology not having been criticised, unless there are sound reasons for not doing so, and none have emerged, Dr Roldan's opinions are entitled to be afforded significant weight.
2. Dr Roldan identified the extensive material which had been provided to him for the purpose of preparing his reports. Dr Roldan had also been provided with the reports of the Plaintiff's medico-legal psychiatric expert, Dr Parmegiani, and the Defendant's medico-legal psychiatric expert Dr Roberts. Dr Roldan reported that, for the reasons he identified, it was not possible to administer the Plaintiff the MMPI-3 or "similar instruments" (paragraph 5.6 page 24) but that (5.7) he did administer the Plaintiff the "depression anxiety stress scales (DASS), which is a self-report symptom inventory tapping the examinee's emotional functioning for the week preceding the consultation". He noted that the DASS "does not contain validity checks, scores on the DASS simply manifest face value acceptance of the examinee's symptom endorsement, and the DASS is not designed to assess for psychotic thought disorder." On the DASS the Plaintiff obtained a score of 35 for depression which was said to be "within the extremely severe range", 34 for anxiety and 29 for stress, the first two of which were within the "extremely severe range, the last within the severe range". As Dr Roldan frankly acknowledged, the weight to be given to the Plaintiff's scores is limited in the circumstances which he identified. In view of the Court's findings with respect to the unreliability of the Plaintiff's evidence, little weight is given to her DASS scores. That is no reflection on Dr Roldan.
3. The results of the test of memory malingering (TOMM test) which Dr Roldan administered resulted (5.10) in scores which were "well within the credible range" which provided "no psychometric evidence of deliberate cognitive underperformance or feigned disability". As the Court has earlier recorded, the unreliability of much of the Plaintiff's evidence is not found to have been deliberate.

Medico-legal evidence of Dr Enrico Parmegiani

1. The Plaintiff relied on five reports prepared by her medico-legal psychiatric expert, Dr Enrico Parmegiani. The reports were dated 28 July 2021, 20 October 2022, 30 May 2023, 26 September 2023, and a further report which was filed in Court during the hearing which also became an exhibit (Plaintiff's Court Book Tabs 4, 5, 6 and 7).
2. Dr Parmegiani's 28 July 2021 report followed a consultation with the Plaintiff on 22 March 2021. Dr Parmegiani recorded an extensive history of the Plaintiff's complaints. Not insignificantly (page 6) there was no reference to the alleged hosing of the Plaintiff and Mr Nadis on 2 November 2019. Having regard to Dr Parmegiani's extensive recording of the Plaintiff's statements, that cannot have been inadvertent. Dr Parmegiani also recorded the Plaintiff's stated symptoms. Dr Parmegiani identified the documentation which had been provided to him, which included clinical records of Dr Meyerowitz prior to 25 July 2020, reports of Ms Preston prior to 5 August 2020 and a report from Dr Zhen Zhang, Psychiatrist, dated 20 August 2020 (found at Exhibit P5 page 824) in which Dr Zhang referred to his diagnosis of the Plaintiff on 27 July 2020 with psychiatric symptoms that were diagnosed as an Adjustment Disorder with Anxiety. Why Dr Parmegiani was not given later clinical notes of Dr Meyerowitz was not explained.
3. With respect to his consultation with the Plaintiff on 22 March 2021, Dr Parmegiani recorded (page 11): "When assessed on 22 March 2021, she reported the psychiatric symptoms documented in the sections above, which in my opinion are now consistent with a Major Depressive Episode characterised by marked symptoms of anxiety, including recurrent panic attacks. (The Plaintiff) reported persistently depressed and anxious mood, with lack of reactivity and anhedonia. She was constantly preoccupied by ruminations about her neighbour's past abusive behaviours, and the fear that he could well escalate them further in the future, leading to personal harm to her. (The Plaintiff) reported sleep disturbance, appetite disturbance with weight loss, and lack of energy, motivation and libido. In my opinion the symptoms are sufficient in duration and severity to satisfy the diagnostic criteria for a Major Depressive Episode, within the context of the DSM-5 classification system. The reported recurrent panic attacks are in my opinion caused by the persistent symptoms of Major Depressive Episode. According to (the Plaintiff's) reported history, the psychiatric symptoms began after her negative interactions with her neighbour and progressed further after additional unpleasant interactions with him. In my opinion the reported events constituted a sufficiently stressful set of circumstances to be considered causally related to her current psychiatric diagnosis. It is well known that episodes of Major Depression can be, and often are, precipitated by stressful life events."

Medico-legal evidence of Dr John Roberts

1. The Defendant relied on reports of Dr John Roberts of 12 June 2022, 26 February 2023 and 1 November 2023 (Defendant's Court Book Tabs 12, 14 and 15).
2. As was Dr Parmegiani, Dr Roberts was engaged to provide a medico-legal report. Dr Roberts referred to the documentation provided to him and provided his comments on some of that documentation. Dr Roberts suggested (page 10, Tab 12, of his first report) that the Plaintiff's "psychopathology extends to a periods [sic] long prior to her problems with (the Defendant)". Dr Roberts referred to the Plaintiff as "unreliable as a historian" and suggested that "any allegations made by (the Plaintiff) would need to be confirmed by an independent verification". As will be seen, whereas Dr Parmegiani uncritically accepted the Plaintiff's description of disputed events and her symptoms, Dr Roberts essentially rejected them.
3. Dr Roberts referred to his consultation with the Plaintiff on 9 May 2022 and suggested a number of matters which in his view raised "doubt as to the truth and accuracy of the allegations made" by the Plaintiff. Cross-examination revealed that the reference to "doubt" was something of an understatement. Dr Roberts noted a number of respects in which his engagement with the Plaintiff differed materially from that of Dr Parmegiani, with consequentially different opinions as to the reliability of the information provided.
4. Dr Roberts referred (page 16) to Dr Parmegiani's opinion that the Plaintiff's "psychiatric condition could resolve fully within twelve months at the conclusion of legal proceedings, and initiation of more assertive psychiatric treatment" and stated that "I would consider that such is a reasonable conclusion based on the total assumption of the history given by (the Plaintiff), but if in fact her condition is based on a condition of a paranoid state, such may not (be) the case". That area of significant agreement is the most important matter which emerges from the medico-legal evidence, and provides the essential basis for the Court's ultimate finding with respect to this issue. Inherent in that finding is the absence of a finding that the Plaintiff has a condition based on a condition of a "paranoid state", which neither expert, sensibly having regard to the evidence, suggested.
5. Dr Roberts further referred to Dr Parmegiani's "comments about this being her first episode of major depression and that he would cautiously hold an optimistic expectation about her progress" but suggested that this "requires confirmation of the diagnosis".

Cross-Examination of Dr Parmegiani and Dr Roberts

1. As recorded earlier, the Plaintiff did not adduce evidence from the medical practitioner who has been her regular GP for many years, or from the psychologist or psychiatrist who she has seen since early 2020. All that is known from those practitioners has earlier been referred to. The Court infers that adducing further or other evidence from those practitioners would not have assisted the Plaintiff's case. There has been no explanation for the failure to call any of those practitioners. The evidence suggests that the Plaintiff continues to be in regular contact with her GP, her psychologist and her psychiatrist, but, other than the likely frequency of her consultations with them since November 2021 at the latest, there is no evidence of those matters.
2. Neither Dr Parmegiani nor Dr Roberts has ever been in a therapeutic relationship with the Plaintiff. Each has only ever met the Plaintiff for the purpose of preparing evidence for the Plaintiff in the case of Dr Parmegiani, and the Defendant in the case of Dr Roberts. Their reports are aptly described as "medico-legal". Without suggesting that Dr Roberts was simply a "hired gun" for the party who retained him, and "made light" of her alleged disabilities (Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44), or that Dr Parmegiani blindly accepted that what the Plaintiff told him was true, the Court is satisfied that, without impropriety, each medico-legal expert was solicitous to serve the interests of the party by whom he was retained.
3. Dr Parmegiani tended to accept at face value and without question the veracity of the Plaintiff's statements, particularly with respect to the events of 23 January 2023. Conversely, Dr Roberts was overly sceptical, or in some instances simply rejecting of the reliability of the Plaintiff's account of events. The truth with respect to the Plaintiff's symptoms probably lies somewhere between the two substantially divergent medico-legal views of them. Had the medico-legal experts expressed their opinions on the long accepted basis of identified factual assumptions, as Dr Roldan did, the Court would have been likely to have afforded more weight to their opinions.
4. Both Dr Parmegiani and Dr Roberts were reluctant to concede matters which each of them would have known was unhelpful to the party who retained him. Although to a significantly lesser extent than did Dr Roberts, Dr Parmegiani at times advocated for the Plaintiff in the course of his evidence. At least to some extent, Dr Parmegiani seemed to distance himself from his earlier more benign opinion when justifying the opinion which he most recently expressed.

Dr Parmegiani's evidence in cross-examination

1. The medico-legal experts differentiated between "major depressive episode" and "major depression" conditions. The Court accepts that the events of Christmas Eve 2019 constituted a "major depressive episode", and that, absent any intervening aggravating events, it would be realistic to expect the Plaintiff to take some time to recover from that episode. As noted earlier, despite their differences, the medico-legal experts do not ultimately differ materially with respect to the Plaintiff's prognosis.
2. Dr Parmegiani confirmed (T 269) that he first met the Plaintiff on 22 March 2021. Dr Parmegiani confirmed (T 271) that he considered the Plaintiff to be a "comprehensive historian". Although "comprehensive", the Plaintiff's presentation in the witness box established that the Plaintiff was not a comprehensively reliable historian.
3. Dr Parmegiani confirmed (T 272) that in his report of 20 October 2022, based on his assessment of the Plaintiff on 30 September 2022, his opinion was that she was in "partial remission". Dr Parmegiani referred (T 273) to his written opinion that the Plaintiff "reported psychiatric symptoms that were consistent with a diagnosis of major depressive episode now in partial remission, and the symptoms were understandable within the context of her experience, and did not appear to be exaggerated or embellished". The only objective basis on which Dr Parmegiani justified later retreating from that opinion was the footage of the events of January 2023, and the Plaintiffs interpretation of those events, and the reporting of her alleged symptoms. Dr Parmegiani speculated or conjectured about matters which were not self-evident from the footage itself. So doing was fraught. As with most exchanges between the parties, there were two sides to the story. Dr Parmegiani erroneously chose to adopt a malign interpretation of the footage. A benign interpretation was also available.
4. Dr Parmegiani confirmed that, at the time he did a "review of documents" that were provided to him on 30 May 2023 he had no reason to alter his previously stated opinion. When it was suggested to Dr Parmegiani that meant "that as far as you were aware, you thought she was still in partial remission?" (page 273, line 24), Dr Parmegiani replied "having been given offered information, I couldn't comment, because major depression can be a fluctuating condition, but the last report, my opinion, I believe was correct then". With respect to him, unlike his responses generally during cross-examination, Dr Parmegiani was somewhat guarded when further questioned on this topic. When it was put to Dr Parmegiani (page 273, line 36) that as at 30 May 2023, when he wrote his report "You had no reason to change your diagnosis. That's what you say in there?", Dr Parmegiani replied "Which diagnosis? I have no reason to change the diagnosis of major depression".

Dr Roberts' evidence in cross-examination

1. Dr Roberts was cross-examined by AVL, the quality of which was variable. Dr Roberts agreed (T 327, line 21) that there were "no medical or hospital records that evidence any psychological disorder in the Plaintiff" during the "12 month period prior to the middle of 2019". It was put to Dr Roberts (T 327) that the Plaintiff "had a well established history of significant psychiatric symptoms before the incident at Central (in August 2020); would you agree?" Dr Roberts replied "I wouldn't agree, as I would say, but such is alleged".
2. Dr Roberts was asked, having seen records of Dr Meyerowitz, Dr Zhang and Ms Preston (page 328) "Would you not agree that that evidences substantial psychiatric problems in the period prior to the assault at Central?" Dr Roberts replied "Yes, I would agree that a person presented as if they had certain psychiatric problems, but as I said, psychiatrists are dependent upon the reliability and veracity of the person who gives an account of symptomatology, and if there is evidence that what you are told is in fact incorrect, the diagnosis of the patient is very - and this is the situation with". The AVL link failed at that point.
3. On resumption Dr Roberts said that Ms Preston, Dr Meyerowitz and Dr Zhang "reported the matter as they saw it, and as they were informed". It was put to Dr Roberts that (T 328) "They appear to have accepted the complaints, and proceeded to engage in a treatment program for psychiatric illness would you agree?" Dr Roberts replied "Yes. I would assume that they would have, yes". Implicit in Dr Roberts' response was an unfounded inference that the health professionals would have treated the Plaintiff without having formed the opinion that such treatment was warranted. Dr Roberts reiterated (T 328) his "understanding" that there was "no medical or hospital evidence up until prior to 24 December 19, Ms Cho had sought any or obtained any medical, psychiatric or psychological treatment in that period".
4. It was put to Dr Roberts (T 333) that "Your criticism of the Plaintiff is that you consider she has given inconsistent accounts about the severity of that (August 2020) incident and you think that she's understated it. Would that be a fair summary of your view?" Dr Roberts replied: "My opinion of Ms Cho is that she gives vastly different accounts in regard to a significant matter at different points in time and that would, if one was assessing a person psychiatrically, forensically psychiatrically, that would raise the question of her being an unreliable historian and that's why I said it. It's very difficult for a psychiatrist to make a - an opinion with regard to someone who changes the story in a very dramatic way because one is dependent on the veracity of the client to give a consistent account of a matter's effect."

The Parties' submissions with respect to the medico-legal evidence

1. Counsel for the Plaintiff submitted, correctly, that there had been no challenge to the qualifications and expertise of Dr Parmegiani. Similar observations apply to the evidence of Dr Roberts. It was submitted that the histories provided by the Plaintiff to Dr Parmegiani were "consistent with her affidavit and oral evidence". The former proposition is correct, the latter incorrect in view of the Court's findings with respect to disputed issues of fact, and the Plaintiff's evidence in cross-examination on which they were based.
2. The Plaintiff submitted, accurately, that in his report of 28 July 2021 Dr Parmegiani "opined that the Plaintiff was suffering from a major depressive episode characterised by marked symptoms of anxiety, including recurrent panic attacks".
3. Counsel for the Plaintiff relied on Dr Parmegiani's opinion that the August 2020 incident was "unrelated to her current condition" and that the Plaintiff was "a person of normal fortitude, and that her current symptoms are unrelated to previous vulnerabilities or predispositions".
4. The conundrum emerging from the evidence in this case can be simply stated, although its resolution is less simple. If, as Dr Parmegiani and the Plaintiff contend, the vicious assault upon her on 20 August 2020 had no lasting impact on the Plaintiff's psychological or psychiatric wellbeing, it is very difficult to accept that being sprayed with a garden hose on Christmas Eve 2019, with no suggestion of any subsequent conduct of that kind could have had the effect on the Plaintiff which she claims, and which forms the basis of Dr Parmegiani's medico-legal opinion. Conversely, if the events of Christmas Eve 2019 had the effect on the Plaintiff's psychological well-being which she alleges, it is very difficult to accept that something far more serious, as occurred on 20 August 2020 would not have had a significant adverse impact upon her psychological or psychiatric well-being. Although with initial reluctance, Dr Parmegiani accepted in cross-examination that the August 2020 stabbing was likely to have aggravated any psychological issues the Plaintiff had prior to it.
5. The Plaintiff submitted that it would "appear that Dr Roberts did not have access to any affidavit evidence". Having regard to the evidence which Dr Roberts did have, and particularly that of Dr Parmegiani and Dr Roldan, there is little doubt that he was well aware of the Plaintiff's allegations. Cross-examination of Dr Roberts, and his view that the Plaintiff had told "lies" is consistent with his having at least an adequate working knowledge of the Plaintiff's allegations.

Findings with respect to medical and medico-legal evidence

1. As recorded earlier, evaluation of the Plaintiff's claims with respect to the consequences of the Defendant's tortious conduct on Christmas Eve 2019 turns materially on the reliability of the Plaintiff's allegations with respect to her symptoms, and the impact on her life of the Defendant's conduct. For the reasons recorded in detail earlier, considerable caution is necessary when evaluating allegations made by the Plaintiff which are disputed, and not supported or corroborated by other reliable evidence. Whether the Plaintiff's selective recollection of events and assertions which she knows are likely to impact on her case is conscious or deliberate is not a matter about which the Court needs to make findings or speculate. The unreliability of the Plaintiff's evidence in the numerous respects identified earlier fall short of establishing that the Plaintiff has "lied" as the Defendant alleges.
2. It is also, as the Defendant submitted, significant that the person who is best placed to give evidence of the Plaintiff's lifestyle post-Christmas Eve 2019, her husband, has given only the most limited details in support of the Plaintiff's allegations. As the Defendant submitted, the Plaintiff's husband "denies having current concerns for client's safety, denied any acute risks at present and is happy to take the client home" (Cross-examination Court Book 3231). Although the Plaintiff had not been diagnosed with a psychiatric illness or disorder prior to the events of Christmas Eve 2019, and accepting that Dr Allan was a Cardiologist, the Plaintiff's anxiety and stress as a result of what she suggested in evidence was an innocent and unexceptional barbeque in the backyard of her neighbour's premises suggest that the Plaintiff was pre-disposed to experiencing psychological or psychiatric disturbance as a result of the Defendant's conduct on Christmas Eve 2019. Dr Meyerowitz's opinion that a mental health care plan was indicated in 2018 also supports finding such pre-disposition. Support for doing so is also gained from unchallenged evidence of Dr Roldan that, in a person who was not particularly vulnerable, the Defendant's conduct on Christmas Eve 2019 could not have caused psychiatric illness or disorder of the magnitude initially and ultimately asserted by Dr Parmegiani. The "conundrum" identified earlier in the proceedings assumes significance in this context.

Damages- the parties' submissions

1. The Plaintiff sought general damages in the sum of $200,000. The Plaintiff submitted that she had "suffered, and continues to suffer, serious psychiatric harm as a result of the conduct of the Defendant that has had a disastrous impact upon her life, together with mental anguish and suffering, humiliation, indignity, fear and distress of the mind, emotional distress and shock". The Defendant disputed both the Plaintiff's entitlement to damages, and the quantum urged on behalf of the Plaintiff.
2. Counsel for the Plaintiff provided the Court with a written memorandum indicating a number of authorities which were submitted to be instructive. The Court accepts that those authorities are instructive but, having regard to the factual and other differences between those reported decisions, and the present proceedings, their utility is respectfully considered to be limited.
3. Damages may be awarded for assault and battery, whether or not the Plaintiff is injured or suffers loss. Damages are "very much at large" (Louis v Commonwealth (1987) 87 FLR 277; Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48; (2005) 221 ALR 32; (2005) 79 ALJR 1534). Compensatory damages in the case of torts of assault and battery "are assessed on the basis of the harm to the plaintiff's interest in bodily integrity and liberty. It is unnecessary for the plaintiff to establish economic loss or personal injury in order to recover compensatory damages" (Mansour v Marhop Pty Limited at [142]).
4. The conduct of the Defendant on Christmas Eve 2019 harmed the Plaintiff's interest in her bodily integrity and liberty. As the CCTV footage confirms, long after the Plaintiff may have acted provocatively, and in a manner that was totally disproportionate to any such conduct, the Defendant repeatedly directed a strong spray of water onto the Plaintiff or her home with a strong jet of water from a hose. As the CCTV footage reveals, the Defendant did so from an elevated position overlooking the Plaintiff's premises. The assault and battery of the Plaintiff occurred when the Plaintiff was minding her own business, and entitled to quiet enjoyment of the sanctuary of her own home. The Defendant's mindless, persistent hosing of the Plaintiff and/or her premises, and realisation of her vulnerability caused harm to the Plaintiff's interest in bodily integrity and liberty. The Defendant intended those consequences of his acts. More will be said about that in the context of a consideration of exemplary damages.

Liability and Damages- consideration

1. The Court must predict the "degree of probability" that the Plaintiff would not have suffered psychological or psychiatric injury as a result of the conduct of the Defendant on Christmas Eve, or suffered the injury she did, had she not been pre-disposed to suffer such injury. Although the Plaintiff had not been diagnosed with a psychological or psychiatric condition prior to December 2019, the medical evidence referred to earlier reveals that she was pre-disposed to suffer stress and anxiety as a result of events which would not have had those effects had she not been so pre-disposed. As the authorities recognise, the prediction which the Court makes is not readily capable of "scientific demonstration or proof". That exercise is further complicated by the matter which is next considered.
2. Quantifying the aggravating impact of the vicious assault upon her on 20 August 2020, also involves predicting the "degree of probability" that, but for the August 2020 attack on her, the Plaintiff was likely to have fully recovered from any injuries caused by the Defendant by the end of 2021 or some time in 2022. The Defendant has discharged in part the "disentangling" onus which he bears. The August 2020 attack on the Plaintiff materially aggravated and prolonged the injury which the Defendant's tortious conduct caused her. The injury caused by the Defendant on Christmas Eve 2019 had not resolved by that date. The Court's findings with respect to the medico-legal evidence recorded earlier inform that finding.
3. Determining the Plaintiff's compensatory damages involves the exercise of an undoubtedly broad, but not unfettered discretion. Limited assistance is obtained from other cases. Each case turns on its own facts.
4. The Plaintiff suffered psychological or psychiatric injury as a result of the Defendant's tortious conduct. The Plaintiff's injury has continued for four years, and may not resolve until the end of 2025. Although not to anything like the extent alleged by her, the Plaintiff's injury has had some, albeit modest impact on her lifestyle.
5. The Court having found that the Plaintiff's pre-disposition to psychological or psychiatric injury as a result of the Defendant's conduct, and that the August 2020 attack on the Plaintiff materially contributed to the Plaintiff's current injury, it is necessary to determine the impact of those findings on the liability of the Defendant, or on the quantum of damages which should be awarded to the Plaintiff.

Aggravated Damages

1. The Plaintiff sought aggravated damages in the sum of $20,000.
2. In Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47 at [8], the High Court said that "Aggravated damages, in contrast to exemplary damages, are compensatory in nature, being awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like".
3. In Ibbett, Spigelman CJ, at [85], referred to the statement in Appleton v Garrett [1996] PIQR 1 that aggravated damages were appropriate "where the manner in which the wrong was committed was such as to injure the plaintiff's proper feelings of pride and dignity or give rise to humiliation, distress, insult or pain. Examples of the sort of conduct which would lead to these forms of intangible loss was conduct which was offensive or which was accompanied by malevolence, spite, malice, insolence or arrogance".
4. Hodgson JA said in State of New South Wales v Riley (2003) 57 NSWLR 496 at [528] (Riley): "If, in addition to ordinary compensatory damages for injuries to feelings, aggravated damages are to be awarded, then plainly it is important to avoid double counting; and the question arises, what can the additional aggravated damages be compensation for when injury to feelings have already been included in ordinary compensatory damages?"
5. His Honour added that: "If a Court has awarded damages for hurt feelings as part of ordinary compensatory damages, the award of aggravated damages must only be the difference justified by this approach, that is, an award of so much as is necessary to bring the damages up to the upper end of the available range."
6. Hodgson JA's observations have particular relevance for present purposes. On Christmas Eve 2019, the Plaintiff experienced most of the emotions to which the authorities refer. That said, having regard to the Court's findings with respect to the CCTV footage of the events of the evening, and the unreliability of the Plaintiff's evidence with respect to her symptoms, then and subsequently, there is a considerable overlap between the factors which have led to the award of general damages and those which would inform an award of aggravated damages. The overlap however is not entire.
7. In Ibbett, at [136], Spigelman CJ considered that an additional amount of $10,000 on account of aggravated damages should be awarded. His Honour was influenced by the fact that the amount awarded for general damages "was towards the middle of the range". Although imprecise, the rival contentions with respect to "the range" in this case suggest that the Plaintiff's award of general damages sits towards the middle of the range.

Exemplary Damages

1. Albeit in the context of seeking general damages in the sum of $200,000, the Plaintiff sought exemplary damages in the sum of $5,000. The Defendant disputed that any award of exemplary damages was appropriate. The Plaintiff's general damages having been assessed at far less than $200,000, the Court does not consider that she should necessarily be limited to an award of $5,000 if exemplary damages are awarded.
2. In Ibbett Spigelman CJ referred, at [28] to the defendant's "outrageous conduct both in itself and in its context" as justifying a "finding of a contumelious disregard of the Plaintiff's rights". Those comments aptly describe the tortious conduct of the Defendant. His Honour considered that the conduct of the defendant, was "deserving of the censure of the Court and that this was one of the rare cases in which an award of exemplary damages was appropriate". Without diminishing the seriousness of the conduct of the Defendant in this case, the conduct of the defendant in Ibbett, the circumstances in which it occurred and its impact on the plaintiff was more egregious than was the conduct of the Defendant.
3. The Chief Justice referred [35] to Gray v Motor Accident Commission (1998) 196 CLR 1 and to whether it was necessary to find "conscious wrongdoing" on the part of the defendant. The Defendant in this case could not successfully assert that his conduct did not involve "conscious wrongdoing". The Defendant knew what he was doing, and could not reasonably deny that he knew that it was "wrong".
4. Spigelman CJ said, at [38] that "the authoritative statement in Australia of the purpose of an award of exemplary damages is that they are awarded to punish and deter" but that "however, an equally authoritative statement is that such damages express the Court's condemnation of objectively outrageous behaviour" (Lamb v Cotogno at [10]). In Wilkes v Wood (1763) 98 ER 489 exemplary damages were said to be awarded "as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the act on itself".
5. To the extent that the Defendant sought to minimise the "outrageousness" of his conduct, the Court rejects any such suggestion. A benign view of the Defendant's conduct is that he "acted in a high handed fashion or with malice" (Fontin v Katapodis (1962) 108 CLR 177). In those circumstances, although the Court finds that it was, the Defendant's conduct need not necessarily have been knowingfully wrongful (Uren v John Fairfax & Sons Pty Limited (1966) 117 CLR 118).

The Plaintiff's economic loss claims

1. The Plaintiff sought substantial damages for past, present and future economic loss. The Defendant submitted that the Plaintiff had not proved any past, present or future economic loss, and that, if she had, the Plaintiff had not established that such losses were caused by his tortious conduct. If relevant economic loss is proved, the Plaintiff must prove on the balance of probabilities that the Defendant's tortious conduct caused or contributed to such economic loss.
2. For the reasons which follow, the Plaintiff has not proved any past, present or future economic loss. Although perhaps unnecessary in those circumstances to consider causality, the Plaintiff has not established a causal link between any such loss and the tortious conduct of the Plaintiff.
3. The Plaintiff claimed loss of income as well as capital losses, and loss of the opportunity to make future capital gains. Cavanagh J said in PP v DD (No. 20) [2021] NSWSC 1312 at [230] that "Like past loss, the Plaintiff must establish what his earning capacity would have been but for the Defendant's conduct and to what extent that capacity has been diminished as a result" of the tortious conduct of the defendant.
4. The evidence referred to below establishes that, if the Plaintiff was unable to participate in property investment as a result of the Defendant's conduct, that would not have necessitated or justified selling either of her investment properties. The Plaintiff's minor involvement in those activities, and absence of evidence that her husband of many years could not, or would not have done them for or on her behalf are fatal to finding that any tortious conduct of the Defendant caused or contributed to any loss suffered by her on the sale of either property.
5. Cross-examination of the Plaintiff in relation to her economic loss claims destroyed any prospect of their success. It is appropriate to refer in some detail to the evidence which leads to that finding. To the extent that it is not expressly referred to in the context of this head of the Plaintiff's claims, the general unreliability of the Plaintiff's evidence referred to earlier also infects her economic loss claims.
6. The surveillance photos of the Plaintiff, and her responses to them in cross-examination, militate against finding that the plaintiff has been prevented or impeded in any way from undertaking such "property investment" activities as she undertook prior to Christmas Eve 2019. The Plaintiff's claim is primarily in reliance upon the asserted impact on her psychological or psychiatric health and asserted inability to be able to cope with undertaking those activities. The Plaintiff has not established that she undertook any significant "property investment", or other income generating activities prior to Christmas Eve 2019, or that she has been, or is unable to continue to undertake such activities as she did as a result of the tortious conduct of the Defendant.

Plaintiff's past out-of-pocket expenses

1. The Plaintiff tendered a document, based on appropriate source documents, evidencing the payment of $9,580 with respect to psychological or psychiatric consultations and hospital attendances between 26 June 2020 and 28 September 2023. To the extent that there is any controversy with respect to those sums, the Court is satisfied that the evidence establishes that the Plaintiff incurred those expenses. Although involving an evaluative determination which lacks demonstrable precision, having regard to the Court's findings with respect to the factors informing the assessment of the Plaintiff's damages, apportioning those expenses on the basis that the Defendant should be liable for one half of them would be reasonable. So doing recognises the findings with respect to the Plaintiff's pre-disposition to suffer injury of the gravity and for as long as she did, and the aggravating and prolonging impact of the August 2020 attack on her. The appropriate figure is thus $4,790.
2. The Plaintiff claimed future medical and other treatment expenses of $91,845. That was calculated on the basis of $3,240 per annum for psychological consultations, $1,600 per annum for psychiatric consultations, $3,000 per annum for medication, a total of $7,840 per annum. Those figures have an evidentiary foundation. The two issues requiring determination are the likely duration of those expenses and, related thereto, the liability of the Defendant with respect to them.
3. On the evidence of the Plaintiff's medico-legal expert, her condition is likely to resolve by the end of 2024. The Plaintiff's calculations assume that she will incur those medical and other treatment expenses for approximately 16 years. The evidence does not support a finding in those terms. Allowing a "buffer" of $10,000 for future medical and other treatment expenses would be a reasonable, if potentially slightly generous, allowance. The figure ignores any Medicare, health fund or other reductions in the amount which the Plaintiff will actually pay. For the reasons recorded above, and accepting that so finding lacks demonstrable precision, the Defendant should be liable 50% of that sum. The appropriate figure is thus $5,000.

Conclusion

1. The Plaintiff will be awarded general damages in the sum of $50,000, aggravated damages in the sum of $5,000 and exemplary damages in the sum of $15,000, a total of $70,000, together with past out-of-pocket expenses of $4,790 and future out-of-pocket expenses of $5,000. There will be a verdict and judgment for the Plaintiff in the sum of $79,790.

Interest

1. The question of pre-judgment interest remains to be determined. Although, having regard to the outcome of the Plaintiff's claims, and the Court's findings with respect to the various issues raised in the proceedings, it is disinclined to award pre-judgment interest, if that remains controversial, the parties may make brief written submissions with respect to the issue.

Costs

1. The Court will order that the Defendant pay the Plaintiff's costs as agreed or assessed on the ordinary basis, and order that a party seeking a different order file and serve written submissions in support of such relief, and that a party resisting such an application file and serve written submissions in opposition to the granting of such relief.

Orders

1. I make orders as follows: 1. Verdict and judgment for the Plaintiff in the sum of $79,790. 2. Defer the entry of judgment for the purpose of allowing the parties time to consider any claim for pre-judgment interest. 3. Within 3 days of today's date, the plaintiff is to notify the defendant and my Associate, in the form of written submissions not exceeding 5 pages, of any claim for interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW). In the event no such notification is received, judgment will be entered for the sum stipulated in order (1) above. 4. Upon receipt of the plaintiff's notification in order (3) above, the defendant has 3 days to notify the plaintiff and my Associate as to whether there is agreement concerning pre-judgment interest calculation. In the event agreement can be reached, judgment is to be entered inclusive of interest. 5. In the event the plaintiff's pre-judgment interest calculation is opposed, the defendant is to notify the plaintiff and my Associate of their objection, in the form of written submissions not exceeding 5 pages. Questions of pre-judgment interest will be determined on the papers, and judgment will be entered following any such determination. 6. The Defendant pay the Plaintiff's costs as agreed or assessed on the ordinary basis. 7. A party seeking to vary the costs order in order (6) above ("the costs applicant") is to file a notice of motion pursuant to r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW). 8. In addition to order (7) above, the costs applicant is to: 1. notify my Associate of the filing of the notice of motion, and to seek a return date from chambers; and 2. file and serve written submissions on costs not exceeding 7 pages in length in support within 7 days of the filing of their notice of motion. 1. Upon receipt of the costs applicant's submissions, the costs respondent has 7 days to file and serve written submissions not exceeding 7 pages in length in support of such opposition.

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DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 April 2024