Dionne Gavin v Janet Morgan & AAMI Limited t/as AAMI

The accident

1. The second defendant's concern that the claim was not made in good faith arose out of evidence that the plaintiff provided two differing versions of the circumstances in which she suffered injury.
2. The first version was recorded in a series of documents forming part of Exhibit F. An ambulance officer who attended upon the plaintiff at about 5:30pm on 19 February 2012, when the plaintiff was lying on the ground at her parents' property at Wongawilli, recorded: Pt reports falling from small motor bike @ low speed (moving across pathway) onto outstretched R arm resulting in R elbow and forearm pain.
3. The plaintiff was subsequently transferred to a second ambulance, the officer in which recorded: … Riding motorcycle 125 cc Thumper (sic) small size motorcycle - and fell off @ low speed.
4. On arrival at Wollongong Hospital, the Emergency Department Nursing Assessment recorded: Painful right elbow post fall while on motorbike, "very low speed" 125cc motorbike.
5. At 23:16:10, Dr Hock Sun Seow, having examined the plaintiff recorded: … fell from motorbike - 10-20 km/hr onto outstretched RIGHT arm and hand …
6. Precisely the same words were used in an entry made at 01:12:18 on 20 February 2012 in the notes contained in a document headed "Discharge Referral".
7. The second version of how the accident occurred appeared in a Hospital progress note at 09:00:54 the following day, 21 February 2012. It recorded: Happened when she fell of (sic) stationary motorbike …
8. The plaintiff submitted a claim form to the insurer in June 2012. It was completed by the first defendant on the plaintiff's behalf. The description of the accident read: I was sitting on my bike and my mum reversed my car into me knocking me off. I put my hand out to save myself causing my arm to brake (sic). (Exhibit C)
9. In a statutory declaration appended to the claim form the plaintiff wrote the following description of the accident: I was involved in an accident on the 19th February 2012 at 26 Wongawilli Road, Wongawilli. I was sitting motionless on a bike when Janet Morgan of 969 Mares Forest Road, Wombeyan Caves reversed into me causing me to fall and break my elbow. (Exhibit C)
10. In her evidence to the court, the plaintiff amplified details of the accident as described in the second version.
11. The motorcycle on which she was seated was a "Thumpster". This was a small motorcycle, designed to be ridden by a child. It had a 125 cc engine. She and her husband bought the motorcycle for their son for his 6th birthday. The motorcycle pointed in the opposite direction to her car so that its rear wheel was pointed towards the rear of the car. She sat on the motorcycle with her back to the car. Her son stood to her left beside her. The car was about one metre behind the motorcycle. The plaintiff asked the first defendant to move the car forward.
12. The first defendant, by mistake, put the car into reverse gear and bumped the motorcycle. The plaintiff put out her right arm as she fell to the right.
13. The plaintiff said her initial version of how the accident occurred was prompted by her fear that a true account would place the first defendant, her mother, at risk of a fine. Her mother overheard the version given to Dr Seow late on the night of 19 February 2012 and told her to tell the truth. From that point on, she said, she provided the truthful version of events.

Which, if any, version should be accepted?

1. The second defendant relied on a number of aspects of the evidence as reasons for rejecting the second version of how the accident occurred.
2. The plaintiff's sister placed the 000 call for an ambulance after the accident. She reported that her sister had "fallen off a motorbike" and she was asked for a number of details, including: PO: Okay. Was the bike travelling at the time, or stationary? EM: It was travelling at the time.
3. The second defendant suggested that this was a version that was coincidentally similar to the history initially provided by the plaintiff. I decided that I could give this evidence little weight for several reasons.
4. The plaintiff and the first defendant said that the plaintiff's sister was inside the house on the property at the time of the accident and out of sight of the place where the accident occurred. I listened to the recording of the conversation between the plaintiff's sister and the Ambulance Service officer who took her emergency call. In order to answer a number of the questions she was heard to call out for information, on one occasion mentioning her mother. This appeared to confirm the plaintiff's evidence that her sister was some distance away and did not witness the accident. Her statement that the motor vehicle was travelling at the time of the accident could, at best, have been hearsay.
5. The plaintiff's sister was brought to the court under subpoena by the second defendant. When invited to call her to explain the source of her information, the second defendant declined. The court and the other parties therefore did not have the opportunity to hear from her or to test the basis upon which she said the motorcycle was travelling.
6. The plaintiff's mother, in her evidence, confirmed that she told the plaintiff to tell the truth about the circumstance of the accident. The second defendant contended that the plaintiff did not correct the Hospital record before she was discharged on 21 February 2012. This was not correct. I have already set out the note recorded on the morning of 21 February 2012. Another undated note appearing in the Hospital records that was made eight weeks after the initial surgery provided the following history: Fell off motor bike from being hit by car.
7. Each of these reports was made before any claim was made on the insurer and before any legal advice was provided.
8. The second defendant was concerned that the plaintiff did not reveal the earlier inconsistent version in her claim form. I could not understand why she should have been expected to do so. The claim form required the claimant to swear on oath that the information contained in the form was true and correct in every respect.
9. The second defendant claimed that the plaintiff did not reveal the earlier version to any medico-legal expert, except Dr Sekel, who appeared to question her closely about the circumstances of the accident. This was not true. The earlier version was referred to by Dr Durrell in his report of 25 June 2015.
10. The second defendant claimed that the plaintiff did not tell Investigator Weir of the earlier version. This was not true. Statements provided by both the plaintiff and the first defendant made reference to the earlier version.
11. I did not accept the second defendant's assertion that the plaintiff gave other later differing versions of the accident.
12. One of these was said to arise when the plaintiff told Dr Selwyn Smith that she sat on the motorcycle because she was feeling unwell. The second defendant appeared to class the provision of this information as an attempt to give a different history or to reinforce one already provided. The simple explanation from the plaintiff, confirmed by the first defendant and the plaintiff's husband, was that she was in the 14th week of the gestation period of her third pregnancy and suffering from the nausea commonly associated with that condition. I did not accept that there was any thing sinister in the fact that this detail did not come to light until Dr Smith examined the plaintiff.
13. The plaintiff emphatically denied that she told Dr Durrell that she was "standing over" the motorcycle or that she was "forcefully struck" by the reversing car. She could not explain what he meant by either term. Dr Durrell was not called to provide an explanation. Neither of these details was ever part of the histories given by the plaintiff in any other statement that she made. I accepted that they were the result of some error of misunderstanding on the part of Dr Durrell.
14. In dealing with these propositions of the second defendant, I noted that the plaintiff and the first defendant gave their evidence forthrightly. They were the only witnesses to the accident. The plaintiff readily conceded that she lied when giving the first version of the accident and provided an explanation for having done so. The first defendant confirmed that she advised her daughter to tell the truth despite the potential for adverse consequences to herself.
15. The plaintiff said that she had never ridden a motorcycle and did not know how to start the machine purchased for her son. She said the only control that she knew of was the brake. Her husband confirmed this evidence. He said he had never seen her ride a motorcycle and she did not know how to operate them.
16. The most compelling evidence in support of the plaintiff's claim came from the first defendant. She described her dread and fear, when she inadvertently reversed the car and heard a bump, at the thought that she had run over her grandchild. I accepted that the distress that she displayed when giving this evidence was entirely genuine.
17. The result was that I find that this was not a matter where I was unable to decide between the competing accounts of how an accident occurred. I was satisfied that the evidence established that the accident occurred when, as claimed, the first defendant reversed the plaintiff's car and knocked her from her seated, stationary position on the child's motorcycle.
18. The first defendant conceded that in reversing the car she committed an error. I find that this error constituted a breach of her duty of care to the plaintiff and find the first defendant liable to her in damages.

DAMAGES

1. Assessments of the plaintiff's injuries placed her beneath the threshold required for the recovery of non-economic loss. Her claim was limited to the recovery of compensation for loss of income earning capacity, loss of capacity for attendant care and out of pocket expenses.
2. The plaintiff claimed that she suffered physical and psychological injury as a result of the accident.
3. There was some history of prior injury to the plaintiff's right arm and she suffered spinal fractures following a fall from a horse. The plaintiff said these injuries were fully resolved at the time of the accident and, although the second defendant pointed to medical records that recorded that the plaintiff complained of hip pain and back strain from time to time, no medico-legal expert considered that they were relevant to the assessment of her physical condition after this accident.
4. The plaintiff also suffered from intermittent episodes of depression for which she was treated with anti-depressant medication. The only relevance of this history for the medico-legal experts was that they indicated a pre-existing vulnerability.
5. The physical injury suffered by the plaintiff was a fracture of the radial head of the right radius. The plaintiff was right hand dominant. Surgery was required on three occasions. The first involved closed reduction and internal fixation of the fracture. The second was necessary because the fracture did not unite and it was fixed with open reduction and internal fixation with a plate and screws. In November 2014 further surgery was undertaken to remove the plate.
6. During the period of recovery a palsy, or radial nerve lesion, developed that caused the plaintiff's wrist to drop. This condition resolved over a number of months with splinting and physiotherapy.
7. The plaintiff complained of ongoing stiffness and pain in her right elbow, increasing with activity and with discomfort at night. She regarded as unsightly the scar on her arm that was the result of surgery. She claimed that she required painkilling and anti-inflammatory medication to relieve her discomfort.
8. Dr Dixon, Dr Crouch and Dr Bentivoglio accepted the plaintiff's complaints of stiffness and restrictions in the range of movement of the arm. They accepted that these were permanent disabilities resulting from her injury. They thought her complaints of pain and discomfort were reasonable. Dr Sekel expected the discomfort to resolve after removal of the hardware but, unfortunately, this did not occur. All of these experts also referred to the prospect that the plaintiff would develop post traumatic arthritis in the elbow. Dr Dixon, with whom Dr Crouch agreed, thought it was already present and that it would progress to the point where more intensive treatment would be required and, ultimately, replacement of the elbow joint. Dr Bentivoglio thought there was a small chance only of osteoarthritic degeneration and Dr Sekel thought there was none.
9. The plaintiff also claimed that she suffered the ongoing symptoms of a psychiatric injury as a result of the accident. She said that prior to the accident she was happy, outgoing, sociable and that she had many friends. She enjoyed bushwalking and the beach, she managed her family and household well and she happily engaged in activities with her children.
10. After the accident she became depressed at being unable to care for her family. The plaintiff described herself as grumpy and moody, frequently in tears. She suffered from panic attacks during which she became breathless and felt a loss of control. She rarely left the house, she had few remaining friends and she engaged in little activity with the children. She went to the beach with the children only when accompanied by her husband.
11. The plaintiff said she became highly protective of her children, in fear that they will come to harm through an accident. She will not allow them to travel in other persons' cars. She drives them to school. She developed some obsessive features. She did not like uneven numbers. She counted as she chewed her food and always ended on an even number. The volume on the television must always be set on an even number.
12. Her relationship with her mother was strained, the plaintiff blaming her for her injuries: Because her stupid little mistake has stuffed up my life, and I know she didn't mean it. (Transcript 25.49)
13. Her relationship with her husband was strained, both as regards intimacy and companionship. She worried that this would end her marriage.
14. The plaintiff recently commenced treatment with a psychologist, Mr Wenzel, who recommended that she seek a prescription for anti-depressant medication from her general practitioner. She did not wish to take them or medication to assist her to sleep. Instead, she relied on herbal remedies.
15. The plaintiff's husband and her mother both confirmed the changes in her outlook on life since the accident and the effects of these changes on their relationship with the plaintiff.
16. The plaintiff was examined by three psychiatrists for the purpose of her claim. They all accepted that she suffered from a diagnosable psychiatric disorder as a consequence of the accident. They differed in their diagnoses and their assessment of the severity of the illness.
17. Dr Selwyn Smith examined the plaintiff on December 2014 and November 2015. He diagnosed an Adjustment Disorder with Mixed Depressed and Anxious Mood, chronic in duration and of mild intensity, the symptoms of which were unlikely to remit, even with treatment. Dr Smith attributed the source of the Disorder as 50% to her pre-existing vulnerability and 50% to the accident. He subsequently stated that her current psychiatric condition was predominantly related to the orthopaedic injuries suffered in the accident. I understood this apparent inconsistency to mean that the prior history of depressive illness rendered the plaintiff vulnerable to the Disorder that followed as a consequence of the accident. Dr Smith disagreed with the opinions of Dr Durrell and Dr Prior.
18. Dr Durrell examined the plaintiff in March 2015. He diagnosed Post Traumatic Stress Disorder - Chronic, caused by the accident and moderate to severe in intensity. He noted as prominent features: mood instability and insomnia with comorbid and secondary pessimistic symptoms. He recommended a substantial regime of therapy and medication and, when symptoms were particularly acute, hospitalisation.
19. Dr Prior was appointed by the Medical Assessment Service to examine the plaintiff in October 2015 on the question of the extent to which her condition resulted in whole person impairment. He diagnosed two disorders: Chronic Post Traumatic Stress Disorder and Comorbid Major Depressive Disorder (recurrent subtype) with secondary panic and obsessive-compulsive symptomatology. Dr Prior provided a thorough and reasoned report in which he noted the prior history of depression and insomnia. He recorded that the plaintiff complained of symptoms that were consistent with those of which she gave evidence during the hearing. He noted that the plaintiff was currently receiving treatment from Mr Wenzel that she thought was of little benefit. Dr Prior said the anti-depressant treatment recommended by Mr Wenzel would substantially assist the plaintiff.
20. In Dr Prior's opinion the plaintiff's symptoms were more significant than those suggested by other practitioners, including Dr Selwyn Smith in their variable diagnoses of an adjustment disorder. He was satisfied that the cause of the plaintiff's condition was the accident. He was satisfied that the plaintiff was permanently impaired.
21. This material established that the following factors were to be taken into account in assessing the plaintiff's claims: 1. A fracture of the radial head of the right radius in respect of which the plaintiff's complaints of continuing pain and stiffness were accepted by majority medical opinion to be reasonable and permanent. 2. Psychiatric injury with variable opinions as to precise diagnosis and severity but resulting in depression, anxiety and obsessive compulsive characteristics. Although the experts differed in their diagnoses, they agreed that the condition was permanent. I preferred the opinion of Dr Prior to those of Dr Smith and Dr Durrell. Having heard from the plaintiff, her husband and her mother, I considered that Dr Smith under assessed the intensity of the plaintiff's symptoms and that Dr Durrell overstated them. Dr Prior reported symptoms of moderate severity.

Loss of income earning capacity

1. The plaintiff's pre-accident work history was limited because she started her family at an early age. She was educated to the end of year 11 and she worked in bars and as a swimming teacher prior to the birth of her first child in 2003. Her second child was born in 2006. At the time of her accident she was pregnant with her third child, born in August 2012.
2. The plaintiff stated that it was her intention to return to work and she focussed on two potential income earning activities.
3. She trained in nail technology for eight months in 2006 and earned a Certificate III in that field. At the time of the accident she was enrolled in a course to train as a beautician. She did not complete the course after the accident. The plaintiff said she intended to operate this business from her home and she had set up a room at the house in preparation for its commencement. This was confirmed by the plaintiff's husband. The plaintiff thought she had talent in the area, as did the first defendant, who had received manicures from her daughter. The plaintiff charged $90 for a manicure that required about one hour to complete. Aside from this, she had done little by way of marketing the proposed business and there was no evidence of her expected turnover or net return from such a business.
4. It was unclear from the evidence when the plaintiff proposed to commence the nail and beauty business. The room set aside for this purpose was subsequently converted to a nursery for the third child. It was apparent, however, that it was intended to provide a limited income until such time as the plaintiff considered that she would be sufficiently free of her responsibilities for her family to embark on a career in real estate.
5. The plaintiff described a long held ambition to work in real estate. She thought that prior to the accident she had the capacity and personality that would lead to success in that field. She studied at Wollongong TAFE for six months and obtained a qualification that she said would allow her to work in real estate, although she did not hold a licence. She explained that she did not apply for a licence because it was issued annually at a fee and there was little point in expending money for this purpose when she was not employed in the field.
6. At the time of the accident, the plaintiff had made no application for employment in real estate or inquired concerning the availability of positions. This was unsurprising since, at that time, she was not contemplating employment in that area. She had some knowledge of the agencies in the Wollongong area and thought that she might start her career as a receptionist and work her way up to the position of a licensed real estate agent.
7. After the accident the plaintiff set up an internet business under the name "Panella's Peapod" through which she purchased and sold children's clothing. The activity involved in this business was limited. She purchased stock online and filled orders that were placed and paid for online by packing clothing into envelopes that were posted by her husband. The business had been operating for two years at the time of hearing and had been running at a loss. She held no Australian Business Number and she was not registered for goods and services tax. The plaintiff was tested concerning her business acumen in ordering more stock at a time when that already on hand was not sold.
8. The plaintiff and her husband said that the business occupied her for a limited number of hours each day and it was continued because it provided her with a distraction.
9. The consensus of medical opinion was that the restriction on the range of movement of the plaintiff's right elbow, while imposing restrictions, would not affect her income earning capacity. Dr Couch said limitations on her options for employment arose from the pain and discomfort that the plaintiff continued to suffer. He set out a number of recommended restrictions on the type of work for which she might be suited that were designed to avoid loading the arm or involving its repetitive use. Dr Couch accepted that work as a nail technician or a beautician would be inappropriate for this reason. He noted that the main issue with work in real estate related to driving and he suggested that this be overcome with regular breaks to relieve right elbow pain.
10. Dr Selwyn Smith said the plaintiff was psychiatrically fit for employment. Dr Durrell said she would never return to meaningful paid employment. Dr Prior, not being asked to comment, provided no assessment of the effect on the plaintiff of her psychiatric illness.
11. I concluded that the plaintiff's most likely circumstances, but for the injuries, were: 1. The plaintiff would have commenced a home based business as a beautician. At the time of the accident, she had studied and set up a room for this purpose. Taking account of the third pregnancy and the need to attend to the care of the third child, born in August 2012, I estimated that commencement of this business would have been deferred for three years from the date of the accident. 2. The plaintiff would have sought suitable employment outside the home when her children were established in school, likely to be at the commencement of the 2019 school year.
12. The injury to the plaintiff's right arm, in isolation, would not in my view have prevented the plaintiff from finding some form of appropriate full time employment, although it was unlikely that she could work as a nail technician or beautician. I was not convinced that the ongoing symptoms in the right arm alone would preclude a career in real estate.
13. The compounding effect of the permanent psychiatric condition was clearly the major impediment to the plaintiff's return to the work force and was a factor that made it difficult to assess the plaintiff's probable loss of income. I was satisfied that the psychiatric condition coupled with the limitations arising from the right arm injury, would diminish substantially the plaintiff's prospects of seeking appropriate full time employment. I made allowance for the cost of future treatment in anticipation that the plaintiff's symptoms might be ameliorated. I considered that she retained a moderate residual income earning capacity.
14. Assessing the loss of income during the period from February 2015 to February 2019 when the plaintiff would most probably have worked in a home based beauty business, I took account of the evidence that her current business has yet to return a profit. However, in establishing the business, the plaintiff demonstrated some initiative and the prospects were that, with greater experience, a small business operating from home would provide some surplus income over expenses. In assessing the likely income from the home based beauty business I had regard to the plaintiff's ongoing responsibilities for her third child so that it would be unlikely that she would devote herself to the business on a full time basis. I assessed her loss from this business at $150 per week net resulting in a figure for the period of February 2015 to 8 December 2015 of $6,750 (45 weeks x $150) and superannuation of $743 ($6,750 x 11%).
15. For the period from February 2019, the economics of modern life suggested that the plaintiff would necessarily have returned to the workforce, whether in real estate or in some other field. There was no reason to assess her income earning capacity at a rate less than average weekly earnings for females working in New South Wales. In May 2015 the figure for this statistic was $926.60 gross or $788 net.
16. While I accepted that the injuries suffered by the plaintiff in the accident were likely to impede her capacity to find and continue in full time employment, I considered the plaintiff's claimed loss of $400 per week, or more than one-half of this amount, to be excessive. I assessed her loss as follows: 1. From 8 December 2015 to February 2019 or 3 years at $150 which amounts to $18,564 ($150 x 145.6 x 85%). 2. From February 2019 for 31 years at $350, deferred for 3 years which amounts to $214,320 ($350 x 833.8 x 0.864 x 85%). 3. Superannuation of $25,617 ($232,884 x 11%).

Domestic Care

1. There was no doubt that the plaintiff required both personal and domestic care during the period of recovery when her right arm was immobilised. She said that much of the care was provided by her husband, her parents and her sister.
2. The plaintiff said she continued to be able to perform little in the way of housework. She had difficulty with mopping, cleaning the bathroom, washing, gardening and caring for the children. She could not drive for longer than 20 minutes. She required assistance from her husband and children with shopping.
3. The plaintiff's husband said that he performed virtually all of the housework both before and after work. He said the plaintiff did some cooking and, on rare occasions, some housework. He said he did the washing, vacuumed, ironed, cleaned, cooked and shopped. He estimated that the time involved in providing this support in order to meet the plaintiff's needs was 7 hours per week.
4. The plaintiff's parents brought a caravan to her home. They visited for about two weeks each month, staying in the caravan. The plaintiff's husband acknowledged with some gratitude that her mother took over some of the housework. Her father drove the plaintiff to appointments, particularly those in Sydney.
5. The plaintiff's mother said it was clear that the plaintiff needed help. She described the house as "spotless" prior to the accident but not well cared for since.
6. Dr Bentivoglio and Dr Sekel said that the plaintiff did not require domestic assistance. The plaintiff denied telling Dr Sekel that she was able to perform all of her pre-accident housework. She said Dr Sekel was very hard to talk to and did not appear to be interested in hearing from her.
7. Dr Couch said the plaintiff's right arm injury had significant effects on her ability to do housework so that, without gratuitous assistance, she would require paid assistance with heavier housework and outdoor tasks.
8. Ms Grinter, Occupational Therapist, interviewed the plaintiff for the purpose of assessing her care needs. The plaintiff agreed that she told Ms Grinter that she was able to perform some of the housework that she told the court she could no longer do. The plaintiff said this was because she did not want to appear to be a "whinger".
9. Ms Grinter recorded that the plaintiff told her that she could clean the vanity and sink in the bathroom but not the bath or shower, she could clean the kitchen sink and bench but not the oven, refrigerator or kitchen cupboards, she could dust, she could make but not change beds, she could hang washing and bring it in and fold it, except that she needed assistance with towels and sheets, she could do limited ironing. Ms Grinter also recorded that the plaintiff needed help with the weekly shopping but could shop in small quantities, and prepare and cook meals. The plaintiff was unable to spring clean her house or clean windows.
10. Ms Grinter's assessment of the plaintiff's care needs to the date of her report was somewhat confusing but I found them to be generally consistent with the estimate of 7 hours per week provided by the plaintiff's husband. I therefore assessed the plaintiff's needs according to the evidence received from the plaintiff, her husband and her mother.
11. For the period from 19 February 2012 to 8 December 2015 I allowed the sum claimed of $36,036 (198 weeks x $26/hr x 7 hrs/week).
12. For the future, I was satisfied that it was unreasonable to rely on the plaintiff's husband to continue to supply services on a gratuitous basis at the current level. I considered it appropriate for some of the plaintiff's needs to be met by paid service providers. I did not think that it was practical to expect that all of the plaintiff's needs could be met on a commercial basis. I considered that services such as preparing and cooking the family meals and performing the weekly shopping would most likely continue to be provided on a gratuitous basis. I allowed four hours of paid service to take account of needs for the heavier aspects of house cleaning and gardening at the claimed rate of $40 equalling $106,624 (4hrs x $40/hr x 666.4). I allowed for three hours per week at the statutory rate of $26 per hour equalling $51,979 (3hrs x $26/hr x 666.4). The total amount allowed for the future was $158,603.

Out of pocket expenses

1. Past out of pocket expenses were agreed in the sum of $1,582.25.
2. The plaintiff claimed a substantial sum for future treatment, including the arthroplasty of the radial head that Dr Dixon proposed as a probable requirement. Even if I disregarded the allegedly uninformed opinion of Dr Sekel, I must take account of Dr Bentivoglio's opinion that the prospects of the development of osteoarthritic changes were slight. I allowed a reduced sum of $2,000 against this possibility.
3. I was satisfied that the evidence established a need for treatment of the psychiatric condition, including family therapy to deal with the strained relationships of which there was evidence. I considered that Dr Durrell overstated the requirement for treatment by suggesting that hospital treatment would be required. I allowed the sum of $7,500 for treatment of the plaintiff's mental health.
4. I allowed a further sum of $2,000 for the provision of general practitioner services.
5. The total allowed for future out of pocket expenses was $11,500.

ORDERS

1. I make the following orders: 1. Verdict and judgment for the plaintiff in the sum of $473,715, comprising: Income loss: Past income $6,750 Past superannuation $743 $7,493 Future income $232,884 Future superannuation $25,617 $258,501 Attendant care: Past $36,036 Future $158,603 $194,639 Out of pocket expenses: Past $1,582 Future $11,500 $13,082 Total $473,715

1. The second defendant is to pay the plaintiff's costs of the proceedings on an ordinary basis and the first defendant's costs of the proceedings on an indemnity basis. 2. The exhibits will be retained for 28 days. 3. My reasons are published. 4. The first and second orders are stayed until 1 February 2016.

AMENDMENTS

1. 18 December 2015: paragraph 93 amended to reflect the order as to costs and the stay of the orders.

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: 21 December 2015