Fung v Bossie Chau Pty Ltd t/a 278 Club, Chang & Hu

Solicitors: Chambers Russell Lawyers (Plaintiff) Viney Law (Defendants) File Number(s): 2018/382671 Publication restriction: None

Table of Contents Nature of case [1] Factual background [2] - [13] Issues calling for determination [14] - [16] Polarised factual positions of the parties [17] - [39] Facts not in dispute and identification of facts in dispute [40] - [76] Issue 1 - Credibility and reliability of testimony [77] - [178] The evidence of Mr Chun Wai Fung, the plaintiff [78] - [125] The evidence of Mr Cheuk Yin Fung [126] - [134] The evidence of Mr Seung Man Ha [135] - [152] General approach to evidence of Mr Chang and Ms Hu [153] - [162] The evidence of Mr Chao Chang, the second defendant [163] - [166] The evidence of Ms Xiao Hu, the third defendant [167] - [178] Issue 2 - Findings on disputed matters of fact [179] - [290] (1) December 2017 ban on plaintiff attending Ginza brothel [181] - [191] (2) Claim of ban from 278 Cleveland Street brothel [192] - [197] (3) Plaintiff's attendances at the 278 Cleveland Street brothel [198] - [207] (4) Plaintiff's transaction for provision of sexual services [208] - [212] (5) Arrival of Mr Chang and Ms Hu at 278 Cleveland Street [213] - [216] (6) Reasons for Mr Chang's entry into Room 11 [217] - [229] (7) Physical contact between Mr Chang, Ms Hu and plaintiff [230] - [263] (8) Confiscation of plaintiff's mobile telephone [264] - [268] (9) Plaintiff's departure from the premises [269] - [272] (10) Plaintiff's attendance at RPAH and hospital records [273] - [280] (11) Statements obtained from plaintiff by police [281] - [283] (12) Guilty pleas - Mr Chang and Ms Hu to common assault [284] - [288] (13) Victim impact statements by plaintiff [289] - [290] Issue 3 - Wrongful tortious conduct by defendants [291] - [296] Issue 4 - Vicarious liability of Bossie Chau Pty Ltd [297] Issue 5 - Claimed defence pursuant to s 5F of the CL Act [298] - [310] Issue 6 - Claimed defence pursuant to s 50 of the CL Act [311] - [328] Issue 7 - Claimed defence pursuant to s 52 of the CL Act [329] - [335] Issue 8 - Claimed defence pursuant to s 53 of the CL Act [336] - [347] Issue 9 - Assessment of damages [348] - [407] General and aggravated damages for non-economic loss [351] - [369] Exemplary damages [370] Past economic loss [371] - [389] Future economic loss [390] - [396] Future treatment expenses [397] - [399] Past out-of-pocket expenses [400] Interest on general damages [401] - [406] Disposition [408] Costs [409] Orders [410]

Nature of case

1. The matter at issue in these proceedings is whether or not the plaintiff has proven his common law claim of having been brutally and unlawfully assaulted, battered and detained against his will, in aggravated and humiliating circumstances.

Factual background

1. Shortly after 2.40am on Tuesday 26 June 2018, the plaintiff, Mr Chun Wai Fung, who was then aged 23 years, was a customer at a brothel. There, he unexpectedly experienced fellatio interrupta whilst engaging in paid sexual activity with a female sex worker named Joy, a nom de bordel.
2. The plaintiff claims that interruption occurred without prior warning when the proprietors of the brothel unlocked and entered the room whilst the sex worker was fellating him. The ensuing circumstances involved a violent fracas, in which he was seriously injured, having been repeatedly punched, kicked, and subjected to intimidation and humiliation by the proprietors of the brothel.
3. The plaintiff claims those events involved a trespass to his person comprising an unlawful assault and battery, and the deprivation of his liberty during a period when he was detained. Accordingly, he claims common law damages including aggravated and exemplary damages from the defendants, the proprietors of the brothel.
4. The defendants have filed defences seeking to rely on s 5F, s 50, s 52 and s 53 of the Civil Liability Act 2002 (NSW) ("CL Act"). Section 52 and s 53 are within Pt 7 of that Act. Not all of those claimed defences were capable of being applied to the circumstances.
5. The brothel in question was referred to in the evidence as the 278 Club. In the police records which were tendered, it was also referred to as the Angel Inn: Exhibit "B", p 285. The reference to the brothel being a club is an apparent misnomer as the premises were not a club and there was no club membership. The brothel is situated at 278 Cleveland Street, Surry Hills, NSW. It is one of two such establishments operated by the first defendant, Bossie Chau Pty Ltd, the second defendant, Mr Chao Chang, and the third defendant, Ms Xiao Hu. The second and third defendants are husband and wife. They are the guiding minds and operators of both of those brothel businesses.
6. In operating those businesses Mr Chang used the working name of Wilson, and Ms Hu used the working name of Yuki. The defendants operated another brothel, known as Ginza, located a short distance away, at 310 Cleveland Street, Surry Hills. Events which occurred at both of those brothels are relevant to these proceedings.
7. Ms Hu claimed the brothel was licensed: T367.37. Although brothels are not licensed as such, and although there is no legal requirement of good character as a pre-condition for persons to operate a brothel, subject to certain conditions being satisfied, the proprietorship of a brothel at which sex workers provide sexual services for payment, is an activity permitted by law: s 15(3) of the Summary Offences Act 1988 (NSW).

Issues calling for determination

1. In addition to their pleaded factual denials, the defendants have claimed defences that respectively rely upon s 5F, s 50, s 52 and s 53 of the CL Act. The plaintiff disputes the factual basis and therefore the availability of those claimed defences. The resolution of those disputed matters stand to be resolved according to the assessment of the credibility and the reliability of testimony.
2. A review of the pleadings, the evidence, and the submissions of the parties, indicates that the material issues calling for determination in these proceedings are as follows: 1. Findings on the credibility and reliability of testimony. My findings on those matters appear between paragraphs [77] to [178] of these reasons; 2. Findings on a number of disputed matters of fact concerning the events leading to, during and following the fracas at the brothel, as those events involved the plaintiff. My findings on those matters appear between paragraphs [179] to [290] of these reasons; 3. Whether the plaintiff was intentionally wrongfully subjected to assault, battery, deprivation of liberty, and intentionally intimidated and humiliated by Mr Chang and Ms Hu. My findings on these issues appear between paragraphs [291] to [296] of these reasons; 4. Whether the first defendant, Bossie Chau Pty Ltd, should be held to be vicariously liable for the actions of Mr Chang and Ms Hu. My findings on this issue appear at paragraph [297] of these reasons; 5. Whether, within the meaning of s 5F of the CL Act, the assault, battery, and the deprivation of the plaintiff's liberty, was as a result of the materialisation of an obvious risk of which the plaintiff must have been aware. My findings on this issue appear between paragraphs [298] to [310] of these reasons; 6. Whether, within the meaning of s 50 of the CL Act, the plaintiff's capacity to exercise reasonable skill and care for his own safety was impaired by reason of self-induced intoxication so that the plaintiff should not be awarded any damages, or alternatively, should be awarded reduced damages on account of alleged contributory negligence on his part. My findings on this issue appear between paragraphs [311] to [328] of these reasons; 7. Whether, within the meaning of s 52 of the CL Act, the defendants were responding to the plaintiff's unlawful conduct, and were acting either in their own self-defence, or in defence of the sex worker, Joy. My findings on this issue appear between paragraphs [329] to [335] of these reasons; 8. Whether, within the meaning of s 53 of the CL Act, exceptional circumstances have been shown to exist that would render it harsh and unjust to award damages to the plaintiff. My findings on this issue appear between paragraphs [336] to [347] of these reasons; 9. The assessment of the plaintiff's entitlement to damages, including compensatory, aggravated and exemplary damages, as well as damages for non-economic loss, past and future economic loss, and past and future treatment expenses, and interest on damages. My findings on these issues appear between paragraphs [348] to [407] of these reasons.

Polarised factual positions of the parties

1. The parties maintained polarised competing factual positions in the litigation.
2. The plaintiff claims that whilst he was at the defendants' brothel at 278 Cleveland Street receiving consensual fellatio from Joy in Room 11, that activity was abruptly interrupted when Mr Chang and Ms Hu entered the room. The plaintiff claims that in those events he was assaulted, battered, and for a time, he was intimidated and humiliated in front of other brothel staff, and that for such time, he was deprived of his personal liberty.
3. The plaintiff claims this all occurred due to the physical actions of Mr Chang and Ms Hu, and by the effect of the juxtaposed position adopted by Mr Seung Man Ha, the brothel receptionist employed by the defendants. In that regard, Mr Ha had placed himself in a position effectively blocking the doorway to the room thereby effectively preventing the plaintiff from leaving the room.
4. In contrast, the defendants claim that they unlocked and opened the door to Room 11 because the sex worker referred to as Joy had been heard to cry out words to the effect: "No. Fuck off, get off me", or variations thereof. The plaintiff disputes that the sex worker said anything along those lines.
5. That dispute will be considered in more detail at a later point in these reasons. The defendants claim that the reason why Mr Chang, Ms Hu and Mr Ha entered the room was in order to go to the assistance of that sex worker because the plaintiff was sexually assaulting her. The plaintiff disputes that allegation and he disputes that there was any such need for the door to Room 11 to be opened in the circumstances.
6. The defendants claim that prior to their entry into the room, contrary to house rules and brothel industry standards, the plaintiff had attempted to achieve unprotected penile-vaginal sexual intercourse with Joy, that is, without the use of a condom, in circumstances where, if that allegation was true, this would have amounted to a sexual assault upon her. The plaintiff disputed the allegation.
7. The defendants opened their case by specifically alleging that the plaintiff had, by his conduct, sexually assaulted Joy because, whilst not wearing a condom, he was attempting non-consensual penile-vaginal sexual intercourse with her. They claim that this was the reason why she had cried out in the manner claimed: T16.45 - T17.11.

Facts not in dispute and identification of facts in dispute

1. Reference was made in the evidence to the existence of an internet caller forum relating to what was referred to as Asian brothels operating in Sydney: T417.20. This was identified in the evidence of Mr Ha as a source for his background belief that, at the time of the events in question, the plaintiff was a receptionist at another Sydney brothel that operated in competition with the defendants' brothels.
2. Before the events in question, since leaving school, the plaintiff had some considerable background familiarity and experience concerning brothels in Sydney. At various times he had managed two brothels owned by his mother and his stepfather at premises in Gladesville and in Marrickville. The Gladesville brothel, at 42 Buffalo Road, Gladesville, was known as the Infinity Bordello: Exhibit "B", p 286. In addition to his work at those brothels, he had regularly frequented other brothels as a paying customer, on a random basis, on an average of about four times per month. For that activity, he used the nom de bordel of Charles.
3. In 2017, on two separate occasions, some weeks apart, the plaintiff had paid for sexual services at the defendants' Ginza brothel at 310 Cleveland Street.
4. In late December 2017, the plaintiff attended at that brothel for a third time but on that occasion he was prevented from obtaining such services. This was because Mr Chang, who had become aware of the plaintiff's presence in the waiting area, informed the plaintiff that he was blacklisted and henceforth banned from further attendance at that brothel. The plaintiff did not offer much protest at that time. He then left the premises. The defendants' underlying reasons for that ban were disputed by the plaintiff.
5. In these proceedings, the defendants' first stated reason for the blacklist ban on the plaintiff was that his image had been copied from earlier CCTV footage taken at the Ginza premises and kept in a file of images of persons who were prohibited from entry to the Ginza brothel. The plaintiff's image was said to be in that file and was said to have been annotated with his identifying nom de bordel, Charles, along with a further notation to the effect that he had a reputation at the Ginza brothel for allegedly removing, or trying to remove, his condom during sexual intercourse with sex workers, an activity which was contrary to house rules.

Issue 1 - Credibility and reliability of testimony

1. Significant credit and reliability of testimony issues arose concerning the testimony of all the witnesses who gave oral evidence. In the paragraphs that follow I set out my analysis and conclusions on matters concerning the credibility and reliability of the testimony of the plaintiff, Mr Cheuk Yin Fung, Mr Chang, Ms Hu and Mr Ha.

The plaintiff's evidence - credit findings

1. The plaintiff was born in Guangzhou in 1994, in China. In 1997, at age 3 years, he moved with his parents to live in Hong Kong where he was educated to a Year 10 level of schooling. In 2013, he arrived in Australia. He studied for 6 months at the Cleveland Street Intensive English High School. He then attended Randwick Boys High School for about a year.
2. The plaintiff was cross-examined extensively on multiple topics. In that regard, I had the opportunity of considering his responses over the course of the three days he spent in the witness box. Although the plaintiff had some facility in the English language, he preferred to give most of his evidence with the assistance of a Cantonese interpreter. The plaintiff gave matter-of-fact evidence on the circumstances of his attendance at the brothel, and as to what he claimed had occurred there.
3. The defendants mounted a series of challenges to the credibility and the reliability of the testimony of the plaintiff. Essentially, those challenges were in three categories. First, on matters which in context, I considered to be minor or peripheral concerning apparent discrepancies between his oral evidence and some factual details appearing in the documentary materials, secondly, the credibility of his evidence on specific matters, both in relation to his finances and in relation to details of the events that occurred on 26 June 2018, and thirdly, what the defendants described as the plaintiff's gross exaggeration of his injuries, except as to his left eye: T190.25. The defendants placed great emphasis on the plaintiff's finances on the issue of his credit, a matter to which I shall return.
4. The thrust of the defendants' submissions as to the plaintiff's credit was to the effect that because "under oath" (a mistaken reference to the plaintiff's affirmation) he had "told a lot of small lies", which counsel for the defendants acknowledged, of themselves, "don't add up to much because he could be mistaken or all sorts of things", nevertheless, there were "some very large lies regarding his cash payments and his bank accounts", where "he's clearly lying". It was therefore submitted that his evidence on critical matters in dispute should not be accepted: T558.35 - T558.39; T571.13 - T571.19.
5. In making submissions along those lines, counsel for the defendants rejected an alternatively formulated proposition to the effect that what had been submitted as comprising "small lies" on the plaintiff's part, should instead be seen as being discrepancies on peripheral matters, not necessarily being lies, and which were not material contradictions that discredited the plaintiff on the more substantive issues: T561.7 - T561.18. The defendants rejected that construction in favour of a more critical and adverse construction against the plaintiff's credit.

The evidence of Mr Cheuk Yin Fung, "Eddie"

1. The defendants submitted that the evidence of the plaintiff's friend Mr Cheuk Yin Fung ("Eddie") should not be accepted on critical matters of fact in dispute.
2. Mr Cheuk Yin Fung, who is a chef from Hong Kong, has lived in Australia on a student visa since 28 December 2017. He knew the plaintiff, initially as a school friend, then in his employment as a cleaner at the brothel owned by the plaintiff's mother at Gladesville, and later as friend and social companion, when they frequented gaming venues and other brothels together. He gave most of his evidence through an interpreter.
3. The substance of Mr Cheuk Yin Fung's evidence was that on the night in question, in the three hours that he was together with the plaintiff, and when they commenced seeking out brothel venues, he did not see the plaintiff consume any alcohol or illicit drugs. That evidence was not contradicted by any other direct observational evidence other than the police and hospital documents, a matter to which I shall return in the context of my findings on matters in dispute. Mr Fung's evidence on this point was not inherently improbable, and I accept that evidence.
4. Mr Cheuk Yin Fung described his own attendance on the night in question at the brothel where the plaintiff was not able to obtain sexual services for himself. Mr Cheuk Yin Fung left that brothel at about 2.00am, at which time, in the company of another friend who had been in their company that evening for the same purposes. He said at that time he telephoned the plaintiff who then told him that he was at the brothel at 278 Cleveland Street, that he had chosen the company of a sex worker, and that the anticipated engagement with that sex worker was about to commence. The call then ended. There is a divergence in the evidence as to whether it was Mr Cheuk Yin Fung or the plaintiff who made that call. In the described context, I consider that nothing turns on whether it was the plaintiff or Mr Cheuk Yin Fung who made that call.
5. After that call ended, Mr Cheuk Yin Fung then went back to the internet café where the group had earlier played games. There, he received a call from another person, and as a result, he then went straight to the 278 Cleveland Street premises.
6. Mr Cheuk Yin Fung said that on his arrival outside the 278 Cleveland Street brothel, he saw police, and he saw the plaintiff sitting on the pavement holding his head. He said that the plaintiff then told him that he had been beaten up whilst at the brothel. He noticed the plaintiff's left eye was heavily swollen and his face was bleeding. It appears from his evidence (at T223.9 - T223.15), that although an ambulance arrived, one of the plaintiff's companions present at the scene drove the group to the RPAH in the plaintiff's vehicle. It is immaterial as to who drove that vehicle.

The evidence of Mr Seung Man Ha, the brothel receptionist

1. Mr Ha is aged 32 years. He was born in Korea and came to Australia in 1997. He completed his HSC in Australia. He later returned to Korea to study aviation but after 1 year, for cultural reasons, returned to Australia. On 30 May 2018, he obtained employment with the defendants as a receptionist at their brothel at 278 Cleveland Street. His duties comprised sales, taking bookings, and dealing with customers. He used the name Tony whilst working in the defendants' brothel.
2. Following the events in question, Mr Ha was arrested by investigating police officers on a charge of kidnapping in relation to his role in the events. However, that charge against him did not proceed and it was discontinued. Those circumstances were no doubt distressing to him at the time.
3. On the plaintiff's behalf, challenges were made to the evidence of Mr Ha on critical matters of fact in dispute. The suggestion was that in his evidence in these proceedings, Mr Ha had provided a selective and factually incorrect version of the events in question in order to support Mr Chang, his employer, in his defence of these proceedings. Mr Ha denied that proposition: T453.15 - T453.45.
4. There are two components to the assessment of the evidence of Mr Ha, first as to its reliability, and secondly, concerning matters that reflect on his credibility as a witness.
5. A useful starting point for that evaluation is to recognise that in his evidence, Mr Ha agreed, fairly, that some parts of his memory of the events were not as good as it was at the time of the events: T450.14. There was no suggestion that before he gave evidence in these proceedings he had refreshed his memory from a contemporaneously prepared statement.
6. On the question of reliability of his testimony, having regard to Mr Ha's concession regarding his memory of the events, as recorded above, I have a reservation as to its factual reliability. That view is reinforced by Mr Ha's hesitancy at a point in his evidence, recorded at T425.42 - T425.47, where he indicated an uncertain recollection where, in my assessment, he was plainly seeking to reconstruct the events in his mind. That matter, together with the fact that part of his evidence was based on his belief as to his initial interaction with the plaintiff, rather than being able to call upon an actual recollection on that question (T416.26), caused me to doubt the reliability and accuracy of his testimony on critical matters in dispute.

General approach to assessing the evidence of Mr Chang and Ms Hu

1. As earlier stated, at paragraph [66] above, in assessing the credibility and the reliability of the testimony of Mr Chang and Ms Hu, I have disregarded as irrelevant the agreed fact of their earlier convictions on the charge of assault occasioning actual bodily harm. Those earlier convictions did not relate to the factual matters in dispute in this case.
2. That said, a problematic feature of considerable significance emerged in the evidence that becomes relevant and common to the assessment of the credibility and reliability of the oral evidence of both Mr Chang and Ms Hu.
3. That common feature is that in the respective evidence they gave in these proceedings, they each conceded to having in the past lied in answering questions when formally interviewed by investigating police officers about critical matters of fact relating to the liability issues in this case. This occurred at a time when they each knew they were being called upon to give a truthful account of the events. They lied not just once, but on multiple occasions when interviewed.
4. This was in circumstances where beforehand they had each been given legal advice to say nothing in answer to police questioning, and notwithstanding such advice, they did not follow that advice. Instead, at that time, and in contrast to their oral evidence in these proceedings, they claimed to have had no knowledge on matters which were the subject of questions raised by police officers in those interviews, where this was plainly not the case.
5. In his evidence in these proceedings Mr Chang acknowledged that he had been given legal advice not to talk or say anything to the investigating police officers: T295.39; T303.39.
6. Notwithstanding having had that advice, he nevertheless proceeded to intentionally obfuscate in his dealings with the investigating police officers by giving untruthful and misleading answers to their questions: T298.31; T299.34; T302.7. I do not accept his evidence that he had taken that course in order to try and avoid trouble and I do not accept that he took that course because he was very nervous at that time: T298.43; T299.41; T302.12. I found those explanations unconvincing.
7. In her evidence in these proceedings, Ms Hu admitted that she had lied to the investigating police officers: T377.26 - T377.31; T379.26 - T379.36; T382.39 - T383.3; T388.17 - T388.31; T389.13 - T389.23. However, she claimed her oral evidence was given truthfully: T409.4 - T409.13. In her answer to Q13 in the electronically recorded record of interview with the investigating police officers, in effect, Ms Hu disagreed with the proposition that the plaintiff had been beaten, punched and kicked whilst at the defendants' brothel. To her direct knowledge at the time, that answer was plainly untrue, as is unequivocally evident from her contrasting oral evidence given in these proceedings.

The evidence of Mr Chao Chang, the second defendant

1. The second defendant, Mr Chao Chang, is presently aged 34 years. In his brothel businesses he used the working name Wilson. He was born in Hunan Province in China in 1986. He arrived in Australia aged 19 years. He married Ms Ha in 2007. He and his wife commenced operating the Ginza brothel in 2013.
2. Although Mr Chang was plainly sufficiently proficient in the English language, part of his evidence was given through an interpreter. That is not a matter of criticism as to his credit. It is understandable that he would want to give his evidence in the clearest of terms.
3. The contentious detail of Mr Chang's evidence concerned the matters he claimed occurred at the time the door to Room 11 was opened and what occurred during the fracas between himself and the plaintiff, and the aftermath of those events. Those matters will be evaluated in that part of my reasons that identifies my findings on disputed matters of fact.
4. In summary, for the reasons outlined at paragraphs [153] to [162] above, and for reasons that will be made plain in my reasons for deciding the factual detail of Issue 1, I have preferred the evidence of the plaintiff on those matters to the evidence given by Mr Chang, Ms Hu and Mr Ha.

The evidence of Ms Xiao Hu, the third defendant

1. Ms Xiao Hu, who uses the name Yuki in her brothel business, is presently aged 35 years. She was born in Hainan in China in 1985. She said that she received her education both in China and in Sydney, having completed High School and having obtained an additional unspecified further diploma. She arrived in Australia in 2006 at the age of 20 years. She married Mr Chang in 2007. They opened their Ginza brothel in 2013.
2. Ms Hu described her facility in the English language as "My English no good", and elsewhere she described it as being "so so": T358.44; T386.21. It seemed to me that she gave her evidence adequately in English, but at times she required the assistance of an interpreter. No criticism arises in that regard.
3. Ms Hu said she knew the plaintiff as a customer of their Ginza brothel where he had used the name Charles. As was established by other evidence, she had known the plaintiff to be a person who had been banned from the Ginza brothel since December 2017: T360 - T361. In that regard, she claimed she had seen the plaintiff's image on the list of blacklisted customers at the Ginza brothel: T361.45.
4. Ms Hu claimed that on 26 June 2018, whilst she was standing near the reception area of the 278 Cleveland Street brothel, which was relatively close to where her husband and the brothel receptionist, Mr Ha were standing, she heard a female voice from within Room 11 scream out the words: "Fuck get off me": T365.30.
5. The detail of Ms Hu's evidence on the matters she claimed occurred at the time the door to Room 11 was opened and as to what occurred during the fracas, will be evaluated in that part of my reasons that identifies my findings on disputed matters of fact.
6. On a consideration of Ms Hu's evidence as a whole I formed the view that her evidence was problematic in terms of its reliability. This was not only because she admitted telling lies to investigating police officers in answer to their questions, but also because she had over time, discussed the detail of the events in question with her husband as recently as three weeks before the trial: T390.19.
7. The fact of such a discussion as between co-defendants may not have been remarkable of itself, however, when Ms Hu was asked about the terms of that discussion she volunteered that she had that discussion with her husband because the events happened nearly two years ago, and she could not remember "so many of the things clearly": T390.32. She later added that she remembered "most of it" but she "wanted to have more memories of it, recollections of it": T390.45. She explained the nature of that clarification of her memory included the fight details, and that the discussion apparently enabled her to put the events into sequence: T391.7.

Issue 2 - Findings on disputed matters of fact

1. The disputed matters of fact that are relevant to these proceedings concern the following topics, which are listed in the chronological order of their factual occurrence: 1. Relevant prior events in December 2017 involving the plaintiff at the Ginza brothel, leading to the plaintiff being blacklisted and banned from attending at that brothel; 2. Whether, as at 26 June 2018, the plaintiff had been banned from attending the defendants' brothel at 278 Cleveland Street; 3. The plaintiff's several attendances at the defendants' brothel at 278 Cleveland Street and his dealings with Mr Ha on 26 June 2018; 4. The extent of the plaintiff's transaction with Joy for the provision of agreed sexual services on 26 June 2018, and the extent to which those services were provided to him; 5. The reasons for the arrival of the second and third defendants at the 278 Cleveland Street premises on 26 June 2018; 6. The reasons for Mr Chang's entry into Room 11 at those premises; 7. The nature of the physical contact between the plaintiff, Mr Chang and Ms Hu after Joy left the room, including the actions of Ms Hu, and the disengagement of contact between the plaintiff and Mr Chang; 8. The relevant events concerning confiscation of the plaintiff's mobile telephone; 9. The plaintiff's departure from the premises; 10. The plaintiff's later attendance at hospital; 11. The plaintiff's statements to investigating police officers; 12. The respective pleas of guilty by Mr Chang and Ms Hu to the charges of common assault in relation to the plaintiff; 13. The content of the plaintiff's two Victim Impact Statements.
2. My findings on those disputed factual matters now follow.

(1) December 2017 ban on plaintiff attending Ginza brothel

1. The first historical personal contact between the plaintiff and the second and third defendants was in December 2017, at the defendants' Ginza brothel.
2. Prior to such contact, in that same year, the plaintiff had been to the defendants' Ginza brothel on two other occasions. On the first two of those occasions he paid for and received from a sex worker what was described as the Diamond Service.
3. There is no dispute that the Diamond Service was available at the Ginza brothel on all occasions on which the plaintiff had attended there. That service was understood to have commenced with fellatio without a condom. On his second attendance there, in December 2017, he made a telephone booking before arriving at the premises. On that occasion, on his arrival, he saw that Mr Chang and Ms Hu were present on the premises.
4. At that time, the receptionist asked him to wait in the waiting room. He was then approached by Mr Chang, who in the course of the ensuing discussion, slapped him, gently it seems, on the side of his face, two or three times, with an open palm, and told him that he was not welcome at the premises. At that time, he was told to never return to those premises. The plaintiff's account of those events was essentially confirmed by Mr Chang and Ms Hu: T260.44 - T261.23; T353.2. The plaintiff then left the Ginza brothel and never returned.
5. The defendants maintained that the plaintiff had been photographed on CCTV cameras during his attendances at the Ginza brothel prior to December 2017. On Mr Chang's evidence, that photographic evidence, described as being in the form of a computer file, was still in existence. The defendants' legal representatives took no pre-trial procedural steps that were available to them to attempt to introduce that photographic and documentary material into evidence: UCPR r 31.10(1).
6. The defendants maintained that at their Ginza brothel they kept a blacklist in relation to some particular customers. This was said to be in the form of a computer file containing photographic images copied from CCTV footage taken from cameras located within the premises. The images in question were said to have included annotations comprising short descriptions that identified reasons for a particular customer being blacklisted or banned. Such annotations included allegations such as being rude to sex workers, drunkenness, taking videos or photographs of sex workers, or non-consensual removal of condoms during sexual intercourse with sex workers.

(2) Claim that plaintiff was banned from 278 Cleveland Street brothel

1. In May 2018, in addition to operating the Ginza brothel, the defendants also commenced to operate their brothel at 278 Cleveland Street. Consequently, the defendants' cannot logically maintain, as was stated by their counsel in opening remarks that outlined the case for the defendants, that in December 2017, the plaintiff had been banned from attending their brothel at 278 Cleveland Street.
2. I accept the plaintiff's rejection of the proposition that, on 26 June 2018, he knew, by reason of his knowledge of the ban preventing him from re-attending at the Ginza brothel, that he would therefore have known that he was unwelcome at the 278 Cleveland Street brothel: T117.8; T201.32; T202.19.
3. The concession made by the plaintiff (at T201.48), to the effect he had heard that the defendants had opened a new brothel in addition to the Ginza brothel, was not a concession that he knew he had been banned from entering the 278 Cleveland Street brothel on 26 June 2018.
4. The plaintiff made the concession of the common ownership of those two brothels after having observed Mr Chang and Ms Hu enter Room 11 at that brothel on 26 June 2018. The concession appears to have been made in the context of him being confronted by Mr Chang in Room 11: T115.41.
5. As to the claimed content of the Ginza brothel blacklist as it related to the plaintiff, although it is possible that Mr Chang may have made an electronic copy of that blacklist, and may also have copied it onto the defendants' computer kept at their 278 Cleveland Street brothel, that was not a matter within the plaintiff's knowledge.
6. The defendants have not made good their claim, as was opened by their counsel at the beginning of the trial, that before the events of 26 June 2018, he was aware that he was not welcome at the defendants' 278 Cleveland Street brothel: T17.18.

(3) Plaintiff's various attendances at the 278 Cleveland Street brothel

1. The plaintiff was asked a question in cross-examination aimed at challenging the proposition that he had only found out on 26 June 2018 that the two brothels were operated by the defendants. The plaintiff gave an answer that was ambiguous. That ambiguous answer was not challenged for unresponsiveness and it was not later clarified. I do not regard that answer to operate against the plaintiff's credit as the question evolved in a confusing way, as appears in the following extract: "WALSH Q. I'm sorry, I'll ask you this question: when you went to the 278 Club on 26 June 2018, were you aware that the same ownership sorry the people who owned the Ginza Club also ran the 278 Club? A. INTERPRETER: I heard of it before. Q. So, you knew that? A. INTERPRETER: Heard it before." [T116.47 - T117.2]
2. I do not read the evidence cited in the above extract to necessarily be an admission by the plaintiff that before the events in question, he had known that the defendants' premises at 278 Cleveland Street were in fact also operated by the same persons who were the proprietors of the Ginza brothel: T116.47 - T116.50.
3. However, on that question, the plaintiff's second statement to the police, which he gave on 29 June 2018, contained the following and slightly different account: "8. When I went to the brothel at 278 Cleveland Street, Surry Hills on Tuesday 26th June 2018, I knew that Wilson was involved in the running of that place. I know this because of the girls that work there worked at the Ginza Club and at my mum's brothels." [Exhibit "B", p 167]
4. In light of the above cited content of that statement I accept that on 26 June 2018, the plaintiff most probably knew that Mr Chang had some involvement in the 278 Cleveland Street brothel. However, it does not necessarily follow from the plaintiff having been banned from the Ginza brothel, that as at 26 June 2018, he was also banned from the 278 Cleveland Street brothel.
5. Even if the plaintiff knew that the two brothels had a common ownership, that fact did not justify the physical actions of Mr Chang and Ms Hu that later followed.
6. The plaintiff said that about 2 weeks before 26 June 2018, he had attended the premises at 278 Cleveland Street. He said that at the time, the receptionist allowed him to view sex workers who were present on the premises, and after he did so, he then left the premises: T31.32 - T31.43. I accept that evidence.

(4) Plaintiff's transaction with Joy for the provision of sexual services

1. Whilst the plaintiff was either entering, or shortly after he had entered Room 11 at the 278 Cleveland Street brothel, he had a brief telephone conversation with his friend, Cheuk Yin Fung. In that call he told his friend where he was located. That telephone call was truncated by the plaintiff at the time Joy entered Room 11. In my view, it is immaterial as to which of those persons made the call to the other. However, I accept the plaintiff's account as being more likely to be correct.
2. In Room 11, the plaintiff's initial conversation with Joy was to the effect that he said he needed to use the bathroom. On returning from his visit to the bathroom Joy was standing near the sofa in that room.
3. The plaintiff said, and I accept, that in his conversations with Joy, there had been no discussion between them as to the nature or the extent of what was to then occur between them in relation to the contemplated sexual activity for which he had paid, other than that Joy had told him to have a shower.
4. After the plaintiff returned to Room 11 following his bathroom visit, he undressed himself. He then showered together with Joy. He then dried himself with a towel she had provided to him, and he then lay on the bed in the room. He was not asked to put on a condom and no condom was produced at that time.
5. Joy then took up a kneeling position at the end of the bed and she then commenced to fellate him without the use of a condom as part of the initial phase of what he understood to be the Diamond Service for which he had paid Mr Ha the sum of $240. Fellatio then continued without the use of a condom for a relatively short time, some two to three minutes, and the next thing to occur was that the door to the room was unexpectedly opened.

(5) Arrival of Mr Chang and Ms Hu at the 278 Cleveland Street brothel

1. Without contradiction, Mr Ha said that after the plaintiff had entered Room 11, he had telephoned the Ginza brothel and had spoken to Mr Chang to inform him that he thought the plaintiff was in the premises at 278 Cleveland Street.
2. The terms of that conversation were that Mr Ha thought the plaintiff, whom he identified as the receptionist at "42" (a reference to the Gladesville brothel owned by the plaintiff's mother), was in a room in the premises with Joy: T439.29 - T439.31.
3. On hearing of the plaintiff's possible presence at the 278 Cleveland Street brothel, Mr Chang promptly left the Ginza brothel and went to the defendants' other brothel at 278 Cleveland Street. He admitted that at that time, he was angered to learn of the plaintiff's presence at that brothel: T314.40. Shortly after Mr Chang left the Ginza brothel, Ms Hu finished the process of closing and locking up that brothel and she then also went to the 278 Cleveland Street brothel.
4. On Mr Chang's arrival at the 278 Cleveland Street brothel he spent some minutes talking to Mr Ha at a location not far from the reception area whilst they each smoked a cigarette. In those events they were later joined by Ms Hu. Some further minutes then passed. Mr Chang claimed he was at that time waiting for the plaintiff's allotted time with Joy to expire in order to then check whether it was in fact the plaintiff who had been in the room with her, and if so, to then speak to him. The events that then followed are the subject of substantial dispute.

(6) Reasons for Mr Chang's entry into Room 11

1. Mr Chang, Ms Hu and Mr Ha each claimed that whilst they were near the reception area they heard Joy cry or scream out from inside Room 11.
2. In their respective evidence, they each recounted the words that they said they had heard, with some variation in content, namely, words to the effect: "no, get off me, fuck" (Mr Chang T270.27) and "Fuck get off me" (Mr Chang T277.45); "Fuck get off me" (Ms Hu T365.30); "Fuck, fuck off" (Mr Ha T419.5).
3. In contrast, the plaintiff maintained that those words had not been said as was asserted by those persons. His account of the events was that fellatio interrupta occurred when Mr Chang suddenly opened the door to Room 11, and that beforehand, nothing untoward had occurred between himself and Joy. Specifically, the plaintiff rejected as incorrect the proposition that the sex worker Joy had cried out using words to the effect claimed by the defendants and Mr Ha.
4. I reject the suggestions from within the evidence of Mr Chang, Ms Hu and Mr Ha, that at any time before or after Mr Chang, Ms Hu or Mr Ha had entered into the room, the plaintiff was situated in a position on top of Joy, or that he was attempting or had achieved penile-vaginal sexual intercourse to any degree, or that he had at any stage removed a condom.
5. Absent any direct evidence from the sex worker Joy, and in light of my findings as to the credibility and reliability of the testimony of Mr Chang, Ms Hu and Mr Ha, without corroborative evidence from Joy, or other reliable evidence, I do not accept that she had called out either : "No. Fuck off, get off me", "Fuck get off me", "no, get off me, fuck" or "Fuck, fuck off", as was variously claimed in the evidence of Mr Chang, Ms Hu and Mr Ha.
6. The plaintiff's account, as outlined in paragraph [219] above, was not contradicted by any credible evidence to the contrary. I do not regard the evidence of Mr Chang, Ms Hu and Mr Ha as being credible on this point. The plaintiff's account was not inherently or glaringly improbable, and I prefer and accept his account as being factually correct.
7. Without other reliable evidence, I do not accept that words to the effect cited above were said by Joy. I do not accept that the plaintiff had sexually assaulted Joy. Even if the words attributed to Joy had been said by her, they do not of themselves necessarily indicate that the plaintiff had either removed or had tried to remove a condom whilst attempting penile-vaginal sexual intercourse with Joy.

(7) Physical contact between Mr Chang, Ms Hu and the plaintiff

1. Almost all of the physical elements of the described fracas in Room 11, from initiation to conclusion, were the subject of dispute. Briefly stated, the opposing factual accounts were as follows: 1. The plaintiff said that after Mr Ha had told Joy to get out of the room he was attacked by Mr Chang whilst he had been sitting on the bed in Room 11. He said in that process, Mr Chang had pulled him off the bed by the shoulder and neck, and flung him onto the floor, and in response, he had defensively tried to fend off Mr Chang with an outstretched hand and arm; 2. In contrast to the plaintiff's account, Mr Chang said on his entry into the room it was he and not Mr Ha who told Joy to leave the room, following which the plaintiff moved towards him aggressively, with an outstretched arm and hand, and had tried to push him out of the room through the open doorway. Mr Chang said that at that time, he then forcibly threw a punch at the plaintiff, following which a fight then ensued between them; 3. Ms Hu stated that she entered the room after Mr Chang. When she entered the room she saw the plaintiff sitting naked on the bed and she saw Joy in a very upset state, wrapped in a towel. She interpreted Joy's facial expression to be one of anger. Ms Hu stated that when Mr Chang asked the plaintiff to get out of the room, the plaintiff used a hand to push Mr Chang away. Ms Hu stated that at the same time, the plaintiff had said "fuck, get out of my room": T370.30. She said that she then saw Mr Chang immediately punch the plaintiff: T371.19 - T371.28. The effect of her description was to suggest that the plaintiff was the aggressor; 4. Mr Ha stated that he and Mr Chang entered the room together. He said that he saw Joy on top of the plaintiff who was lying down: T419.27 - T419.41. He said Joy had a shocked appearance: T420.9. He claimed that Joy had said of the plaintiff, "he tried to do no condom sex" or "he took off condom": T420.5 - T420.18. He said the plaintiff got off the bed and, "like push him away", this being an intended reference to the plaintiff pushing Mr Chang away: T420.37. He said punches were then thrown after that push: T420.45; T449.25 - T449.37. He implied that both the plaintiff and Mr Chang were exchanging blows at that time.
2. Whilst in my view it is immaterial as to whether it was Mr Ha or Mr Chang who had told Joy to leave the room, I prefer and accept the plaintiff's account as being more credible as Mr Chang was the proprietor and Mr Ha took a more passive role in the situation that developed.

Preface to findings as to the actions of Mr Chang and Ms Hu towards the plaintiff

1. In analysing the events in question it must be recognised that the physical actions involving the plaintiff, Mr Chang and Ms Hu, had unfolded rapidly, in violent and confusing circumstances. Consequently, other than identifying who initiated the violence, a precise sequential analysis would be an exercise in artificiality as to who, between Mr Chang and Ms Hu, had delivered which particular blow, punch or kick after Mr Chang initiated the violence towards the plaintiff by slapping and punching him: T46.48 - T47.3. That said, I consider the plaintiff's account to be credible, and not inherently or glaringly improbable.

Location of the plaintiff when Mr Chang entered the room

1. Immediately prior to the opening of the door to Room 11, the plaintiff was laying on his back being fellated by the sex worker named Joy. I do not accept that at that time, or at any other time, the plaintiff was in a position on top of Joy, either prior to or at the time the door to the room was opened by Mr Chang.
2. I do not accept that Joy had cried out or called out in the manner alleged by the defence witnesses. I do not accept that the plaintiff had sexually assaulted Joy in any manner prior to the door being opened. I do not accept that Mr Chang, Ms Hu and Mr Ha entered Room 11 in order to go to the defence of the sex worker Joy. I reject the evidence to the contrary as was variously proffered by Mr Chang, Ms Hu and Mr Ha.

Plaintiff's apprehension of danger

1. When the door to Room 11 opened without prior warning, Joy immediately disengaged herself from fellating the plaintiff. At the time the plaintiff then sat up on the bed in an attitude of startled surprise at the sudden change in the prevailing circumstances. Understandably, in those circumstances, he therefore feared for his personal safety: T44.35.
2. I accept the plaintiff's evidence that, at the time, consistent with having been surprised and interrupted in the manner he described in his oral evidence, he remained sitting on the bed in a state of apprehension as Mr Chang entered the room and proceeded to move towards him.

Mr Chang initiated the violent physical contact with the plaintiff

1. The room in question was a relatively small area and the events unfolded rapidly. After Joy was told to get out of the room, Mr Chang was at that time moving closer to where the plaintiff was seated on the bed. Mr Chang asked the plaintiff why he was back again. Immediately after Mr Chang asked the plaintiff why he was back again, he slapped the plaintiff on the face. I reject the evidence to the contrary as proffered by the defendants.
2. When Mr Chang entered Room 11 and recognised the plaintiff, he believed that the plaintiff's attendance there was in apparent defiance of the plaintiff having been banned from the Ginza brothel. Mr Chang held the mistaken belief that such ban also applied to the defendants' 278 Cleveland Street brothel. Plainly, that could not have been correct, as the 278 Cleveland Street brothel had not been in existence at the time the plaintiff was banned from attending the Ginza brothel.
3. I find that in the circumstances, Mr Chang approached the plaintiff in an attitude of anger, and with the intention of teaching him a painful lesson. Plainly, at that time, Mr Chang intended to use physical force on the plaintiff.
4. Mr Chang was obviously taller, of larger proportions, and more solidly built than was the plaintiff. He was also in the company of others who were in the same interest as he was at that time. Those circumstances clearly emboldened and strengthened Mr Chang's perception of his position and this gave him a significant measure of confidence to direct his actions in the events which then followed.
5. This was in stark contrast to the plaintiff's position of relative disempowerment in that situation. At that time, the plaintiff was feeling apprehensive, he was outnumbered, naked, and he was in a startled and vulnerable position seated on the bed. The plaintiff was of smaller and of more slight physical proportions to Mr Chang.
6. I consider that in those circumstances Mr Chang had no fear of the plaintiff at the time he initiated and used physical force against him.
7. I accept that throughout those events and whilst Mr Chang was approaching him, the plaintiff remained passive. I also accept that in those circumstances, the plaintiff raised an outstretched hand and arm as a protective measure to try to maintain a distance between himself and Mr Chang in order to fend off Mr Chang's progressive and threatening approach.

Multiple blows were directed at the plaintiff who remained passive

1. In the ensuing events, I accept that the plaintiff was hit repeatedly, by "various people" whilst he remained passively silent: T46.48 - T47.3. I find that the persons who struck the plaintiff were Mr Chang and Ms Hu. In those events, Mr Chang was the first to strike the plaintiff. He directed forceful punches towards the plaintiff with the intention of injuring him. In those circumstances I consider it was highly improbable that the plaintiff would have fought back or used his hands other than to hold them in a passively defensive or protective position near his head. I accept that Mr Ha was a shocked onlooker to these events.
2. In addition to the plaintiff having been slapped, there is no dispute that Mr Chang also angrily threw a forceful punch at the plaintiff with his right fist, and that punch was successful in connecting with the plaintiff's head.
3. At some stage during Mr Chang's attack on the plaintiff, in addressing the plaintiff, Mr Chang said words to the effect that he had previously been told not to come "back" and "why do you come back again": T274.13.
4. Mr Chang acknowledged that in his physical actions towards the plaintiff he punched the plaintiff with his right fist, forcefully and with anger, followed by some 10 to 15 repeated similar jabbing punches. I accept that some of those punches connected with the plaintiff's head. I accept his evidence in that regard. I do not accept the evidence of Mr Chang, Ms Hu or Mr Ha to the effect that it was the plaintiff who initiated violence or that he had pushed Mr Chang.
5. I do not accept that the plaintiff attacked, punched, or wrestled Mr Chang, or in any way retaliated. I find that the plaintiff, who whilst outnumbered, remained passive throughout, and I accept that he was trying to extricate himself from that difficult situation without incurring the prospect of further harm to himself in those circumstances.

Mr Chang's dramatic physical and verbal demonstration of punching the plaintiff

1. In his evidence in chief, Mr Chang conceded, including by way of giving a dramatic demonstration from the witness box, in which he made repeated downward and forceful movements with his closed fist moving up and down rapidly beside him in a pumping action, that he repeatedly struck the plaintiff some 10 to 15 times.
2. This was whilst the plaintiff was in a defensive position with his hands up near his head whilst he was seeking to protect his head from those blows. Mr Chang's evidence concerning those circumstances was as follows: "Q. You did something with your hands then. What did A. WITNESS: It was like Q. He pulled up his hands next to his head? A. WITNESS: Yes, yes. Q. Indicating that's what Charles did. A. WITNESS: Yeah. Q. Then what happened? A. WITNESS: Then I keep punching him a few times. Q. You did punch him a few times after that? A. WITNESS: Yes. Q. Did you say anything? A. WITNESS: I didn't say much. It's like abuse him. Q. You were abusing him? A. WITNESS: I say I say bad words. Q. You can use swear words in this courtroom. What did you say to him? A. WITNESS: I can say? Q. You can say them, yes. A. WITNESS: It's like when you throw a punch, like "fuck you, fuck you, fuck you" something like that. I told him --" [T281.22 - T281.48]
3. It was clear that Mr Chang had managed to connect some of those forceful punches with the plaintiff and caused him to suffer injury. The cited words "fuck you, fuck you, fuck you" were delivered by Mr Chang with considerable expressive emphasis, in a violent manner, and in syncopation with his described physical demonstration.

Ms Hu's claimed attempt to separate the plaintiff and Mr Chang

1. Ms Hu claimed that she had simply sought to physically disengage Mr Chang and the plaintiff whilst the fracas was in progress. Ms Hu described making a series of light taps to the plaintiff's head with her open palm in an endeavour to break up the fight: T371.40 - T372.4. In contrast, the plaintiff described Ms Hu as having struck him on a number of occasions in those events, and with much greater force than the benign manner that she had described in her evidence. I do not accept Ms Hu's construction of those events. I prefer and accept the plaintiff's account of her actions in striking and kicking him.

Plaintiff cowered on the floor

1. After the physical blows to the plaintiff had ceased, the plaintiff, who was still naked, assumed a curled position of self-protection on the floor. He had already been injured. At that time his hands were in a raised position to protect his head from further blows. At that time he made it known to those present that he wished to leave the room. At the time he thought he had no way of escaping, and he perceived, correctly, that the three other persons were in effect blocking his exit from the room: T44.42.
2. When the plaintiff asked permission to leave the room he was slapped again. At one point he said that he was again slapped by Mr Chang: T46.9. At another point he stated that it was Ms Hu who had slapped him again: T46.31. In the context of the described confusion, violence and melee, where both Mr Chang and Ms Hu had acted violently towards the plaintiff in the rapidly unfolding events, during which they had both slapped him, I consider it to be immaterial to seek to analyse and to establish which one of them slapped the plaintiff at what point. Overall, the evidence discloses that Mr Chang and Ms Hu were acting together in concert in striking the plaintiff at different times, and without his consent. The plaintiff would have been considerably shocked and shaken by those events.

The line-up and the kick in the guts

1. Ms Hu demanded that the plaintiff kneel near the door to the room. When he refused, she kicked him, twice, in the guts. In the context of having been hit and beaten repeatedly by various persons, he then surrendered, and knelt down as was requested of him. He acquiesced to that demand as he just wanted to leave: T46.30 - T47.3.
2. Against the plaintiff's will, the defendants prevented him from leaving the room until he first obliged their request that he apologise to the sex workers who were present on the premises. For that purpose, Mr Ha left the room and he later returned and assembled a number of female sex workers to stand near the doorway to Room 11 in order to receive the plaintiff's apology: T47.9.
3. The plaintiff initially questioned and declined the demand that he apologise to those sex workers. At that time, he was standing naked in front of them. Mr Chang admitted that at that time he then forcibly kicked the plaintiff in "the guts", an action that brought the plaintiff to his knees, in obvious and in considerable pain. That action was aimed at forcing the plaintiff to submit and it was successful.
4. In the described circumstances where there had been so much violent punching and kicking directed at the plaintiff, I consider that it is immaterial to seek to define the precise sequence and the actors for each of those blows where Mr Chang and Ms Hu had each attacked the plaintiff in the course of those rapidly unfolding events.

Enforced kowtowing

1. The plaintiff said that when he was forced to apologise to the assembled sex workers, he was required to, in turn, separately apologise and kowtow to each of them by deeply bowing before them with his head touching the floor: T48.45; T175.10 - T175.12. He said that this experience was culturally humiliating and degrading for him: T178.35. I accept his evidence in that regard.

(8) Confiscation of plaintiff's mobile telephone

1. At some stage, the plaintiff's driver's licence was taken from him. Initially he refused to hand it over but it was forcibly taken from his wallet: T49.27. It was then photographed, and later returned to him when it was thrown on the bed.
2. The plaintiff claims that he was also photographed whilst naked, after having been beaten. His mobile telephone was taken from him and never returned. In those events the plaintiff claims that he had been intimidated by the defendants into disclosing his passcode to unlock the mobile device. Ms Hu had kicked him in his abdomen again when he refused to divulge his passcode. At that time Mr Chang threatened him with repercussions if he refused: T51.15.
3. The plaintiff further claims that the contact list on his mobile telephone was then accessed, and that later, embarrassing messages and images were sent to various persons on his contact list, including to his mother.
4. The defendants conceded that the plaintiff's driver's licence was taken, photographed, and then returned to him. However the defendants disputed the allegations concerning the plaintiff's mobile telephone.
5. I accept the plaintiff's evidence that he was intimidated into handing over his mobile telephone, which was then confiscated. Furthermore, I accept that he was also intimidated into divulging his passcode for that device. I accept that the mobile telephone was never returned to him. I also accept that someone acting on behalf of the defendants, if not Mr Chang or Ms Hu, then accessed and misused the plaintiff's contact list on that device. This resulted in embarrassing messages and images of the plaintiff being sent, at least to his mother.

(9) Plaintiff's departure from the premises

1. After the physical attacks on the plaintiff had ended, and after his mobile telephone was accessed he was told to get out and he was pushed out of the premises: T51.34. The plaintiff gathered his clothes, dressed himself, and he then left the defendants' brothel.
2. After leaving the premises, the plaintiff walked a short distance across a side street and sat in the gutter nearby to rest. His vehicle was parked nearby. His face was bleeding. He had a painful face and he had intense pain in his back and on his side. He had reduced vision due to swelling around his left eye. He was also numb in that area. He had severe pain in his abdomen. He described it as feeling as if it had been torn. He was feeling helpless. Police officers approached him shortly afterwards. He told them he had been beaten up in the brothel. His friends arrived, and then the ambulance arrived.
3. In the plaintiff's estimation, the whole event, from the time he entered the brothel until when he left, occupied approximately 1 hour. In his more contemporaneous police statement, he estimated having been kept in the room at the brothel for about 20 minutes. Those two estimates are not necessarily accurate or contradictory.
4. The defendants sought to cast doubt upon the reliability of the plaintiff's account by focussing on matters such as whether the police and ambulance personnel arrived before the plaintiff's friends, and as to who drove the plaintiff to seek hospital attention. In my view, given that the plaintiff was dazed, dizzy and injured, those matters are peripheral matters that are immaterial, and of limited utility to an assessment of the plaintiff's credit and to the determination of the central issues calling for decision in this case.

(10) Plaintiff's attendance at RPAH and the hospital records

1. The plaintiff was taken to RPAH. At the time he was feeling dizzy and he was in pain. The hospital clinical notes were tendered as part of Exhibit "B", pp 1 - 36.
2. In essence, those notes show that at Hospital, the plaintiff was examined because of a history of an alleged assault in which he had been kicked and punched. It was noted that he had loss of sensation in his left mandibular teeth and he had tenderness over the left orbital rim. A CT scan revealed depressed fractures to the orbital floor, the medial orbital wall and the maxillary antrum: Exhibit "B", p 20. The CT scan of the plaintiff's face and brain showed related muscle abnormalities of a traumatic origin, and orbital air emphysema: Exhibit "B", p 1. The treatment plan was for him to be reviewed in the Hospital's eye clinic later that day: Exhibit "B", p 25.
3. A graze was also observed on the left side of the plaintiff's forehead. His left eye was swollen shut and could not be assessed. He complained of abdominal and back pain, left-sided frontal headaches and an occipital headache, and blood was seen coming from his nose. The hospital notes recorded that the plaintiff's right eye was also swollen shut, and was unable to be assessed: Exhibit "B", p 7.
4. The plaintiff's left eye was noted to have been bruised and swollen shut and when it was partially opened for the purpose of examination the plaintiff reported blurring of his vision. He was reviewed by the plastics team, he was told not to blow his nose for 3 weeks, and he was given antibiotics: Exhibit "B", pp 4 - 7. He was also given pain medication: Exhibit "B", p 15.
5. It is not clear as to the precise time at which the plaintiff arrived at Hospital. The hospital notes recorded the plaintiff had consumed one to two shots of alcohol that evening: Exhibit "B", p 4. However, the medical assessment was that he did not appear intoxicated and that he did not smell of alcohol: Exhibit "B", p 9. Those entries in the notes were not timed. It appears that the hospital triage notes were not entered onto the computerised record system until 04:47 hours: Exhibit "B", p 7.
6. All that can be said of the timing of those observations was that they were made following the police observations which had been made shortly after 3.40am, and when those medical notes were written up at 4.47am.

(11) Statements obtained from plaintiff by investigating police

1. The plaintiff signed two formal statements prepared by investigating police officers following interviews with him.
2. The plaintiff's first police statement was dated 26 June 2018: Exhibit "B", pp 149 - 151. He gave that statement when he was dizzy, and whilst he was in the more acute phase of his injured state: T187.46 - T187.47. The statement was interpreted to him by a family member: T64.1. From the terms of that statement, it appears to represent a summation of the police officer's interpretation of what the plaintiff had said to him in answer to questions. On that occasion, the police officers took a series of photographs showing the plaintiff's injuries. Those were tendered as black and white images. A number of colour images were also separately tendered: Exhibit "B", pp 152 - 159; Exhibit "G".
3. The plaintiff's second statement to police was dated 29 June 2018: Exhibit "B", pp 166 - 174. That statement was more detailed than the previous one. It contained some incorrect descriptions, such as: 1. At paragraph 4, it was stated that 26 June 2018 was the plaintiff's first visit to that brothel, when it was not. This could have been a mistaken reference to the first visit at which the plaintiff had paid for sexual services at that brothel; 2. At paragraph 8, it was stated that when the plaintiff attended the 278 Cleveland Street brothel on 26 June 2018, he knew that Mr Chang, there described as Wilson, "was involved in the running of that place", because some sex workers whom he knew had told him so. The plaintiff was not directly cross-examined on that entry in his statement. That aspect of the statement was not the subject of submissions. Absent evidence from the police officer who prepared the statement, I prefer and accept the plaintiff's evidence that he only directly found out about that during or after the incident as to the ownership of that brothel; 3. At paragraph 17, it was stated that the plaintiff could not say who had caused him particular injuries. This was because both Mr Chang and Ms Hu had both punched and kicked him multiple times in the face, stomach and back areas. His evidence as to the sequence of the assaults, and by whom those assaults were carried out, must be read in that light.

(12) Plea of guilty by both Mr Chang and Ms Hu to charge of common assault

1. Following a police investigation of the events and whilst they were waiting in custody on remand, Mr Chang and Ms Hu each pleaded guilty to the charge of a common assault upon the plaintiff. They said that they did so for expedient reasons.
2. It is well-settled that, absent improper influences, inducements, or threats, a person charged with an offence is at liberty to plead guilty or not guilty to the offence charged, whether or not that person is in truth guilty or not guilty. It is commonplace for Courts to accept and to act upon a plea of guilty entered according to the exercise of free will without further proof of guilt being required: Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, at [22]. That is what occurred in this case when Mr Chang and Ms Hu pleaded guilty to having assaulted the plaintiff.
3. Mr Chang and Ms Hu claimed that they pleaded guilty to the lesser charge of common assault because of personal, family and business difficulties that had arisen and had become pressing during their period in custody, after they had each been twice refused bail. In my view, those proffered reasons are not persuasive for the proposition that Mr Chang and Ms Hu did not assault the plaintiff.
4. Whilst I am prepared to accept that Mr Chang and Ms Hu each expediently pleaded guilty to a lesser charge of common assault that attracted a lesser penalty, I do not accept that they pleaded guilty despite not having assaulted the plaintiff. They each entered their respective pleas of their own free will.
5. That said, those pleas do not form the basis of my findings as to whether or not the plaintiff was assaulted by them. My findings on that question follow my acceptance of the plaintiff's evidence in preference to the evidence of the defendants, for the reasons that I have identified.

(13) Victim impact statements by plaintiff

1. The plaintiff has provided two Victim Impact Statements which set out some detail of the effect that the events in question had upon him. He was only cross-examined on one of those statements. Those statements were obviously prepared on his behalf at different times and it was obviously intended that such statements be placed before the Local Court at the defendants' sentencing hearings.
2. The first Victim Impact Statement was dated 30 August 2018: Exhibit "B", pp 245 - 249. The second Victim Impact Statement was dated 26 September 2018: Exhibit "B", pp 250 - 257. Those statements were obviously prepared on the plaintiff's behalf, most probably by his legal practitioners. It is not clear as to which of the two Victim Impact Statements was tendered at the sentencing hearing, although it would be reasonable to assume it was the most recent statement. As was the case with the plaintiff's police statements, they were not sworn. I prefer the plaintiff's oral evidence, which was tested, as being more reliable as a source of facts.

Issue 3 - Wrongful tortious conduct by the defendants

1. It follows from my findings of fact as identified above that the plaintiff was assaulted, battered, and deprived of his liberty by Mr Chang and Ms Hu in humiliating circumstances such that his entitlement to damages on account of those matters arises for assessment.
2. The plaintiff pointed to arcane but good authority comprising an extract of a summing up by Coleridge J in an assault case on 16 August 1891, in the matter of Regina v Jeremiah Driscoll, reported at (1841) Car & M 214; 174 ER 477, at p 477, which was in the following terms: "If one man strikes another a blow, that other has a right to defend himself, and to strike a blow in his defence, but he has no right to revenge himself : and if, when all the danger is past, he strikes a blow not necessary for his defence, he commits an assault and a battery. It is a common error to suppose, that one person has a right to strike another who has struck him, in order to revenge himself, and it very often influences people's minds; and I have, therefore, [215] thought it right to state what the law upon the subject really is."
3. Subject to the statutory provisions embodied in Pt 7 of the CL Act, those principles aptly apply to the present case.
4. Significant in this case is the fact that it was Mr Chang who struck the plaintiff and the plaintiff only sought to protect himself. He neither initiated nor struck blows himself. Mr Chang continued to rain injurious blows down on the plaintiff when it was plain that the plaintiff was not offering any resistance or defence other than holding up his arms and hands in order to protect his head.
5. None of Mr Chang's slaps, blows, or kicks that struck the plaintiff were delivered as a means of defence, either of himself, or of any other person. The same conclusion applies to the slaps, blows and kicks that Ms Hu delivered to the plaintiff.
6. I find that the plaintiff has made good his claims of having been assaulted, battered, and wrongfully detained by Mr Chang, and Ms Hu, who are the guiding minds of their company, the first defendant in these proceedings.

Issue 4 - Vicarious liability of Bossie Chau Pty Ltd, the first defendant

1. The defendants no longer contest the plaintiff's submission to the effect that a company can be held to be vicariously liable for tortious acts committed by individuals: Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204: T594.48 - T595.1; T493.48.

Issue 5 - Claimed defence pursuant to s 5F of the CL Act

1. By paragraph 6 of the defence filed on 18 April 2019, the defendants pleaded a defence that the risk of injury that the plaintiff incurred in this case was an obvious risk within the meaning of s 5F of the CL Act.
2. As opened, the defendants' case for invoking s 5F of the CL Act was that if a person in the plaintiff's position was going to criminally assault a sex worker by having non-consensual penile vaginal sexual intercourse without a condom, then that person necessarily places himself at risk of injury, by implication, from the foreseeable consequences of a protective or defensive physical intervention aimed at assisting or defending the affected sex worker: T16.45.
3. Section 5F of the CL Act provides: 5F Meaning of "obvious risk" (1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.
4. As opened, the defendants' contention was that in the environment of a brothel and in the context of transactions for paid sexual services, there was an ever-present and therefore an obvious risk of physical intervention in intimate relations between a brothel customer and a sex worker, including by means of defensive injurious physical force, if the customer behaved in such a way as did not adhere to the conditions that applied to the provision of sexual services. Such behaviour would have included the consequences of a customer removing a condom, or attempting to remove a condom, during sexual intercourse. The implication of the pleaded s 5F defence was that such a risk had in fact materialised for the plaintiff in this case.
5. The defendants' final submissions only lightly touched upon s 5F of the CL Act. As that defence was not formally withdrawn, it must be considered. In my view, it must be rejected for the reasons that follow.
6. First, the factual assumptions underpinning the pleaded s 5F defence has not been made good in that the defendants have not provided any satisfactory evidence that the plaintiff had removed or had attempted to remove a condom during sexual intercourse.

Issue 6 - Claimed defence of intoxication pursuant to s 50 of the CL Act

1. By paragraph 7 of the defence filed on 18 April 2019, the defendants pleaded an intoxication defence pursuant to s 50(2) of the CL Act which provides as follows: 50 No recovery where person intoxicated (1) This section applies when it is established that the person whose death, injury or damage is the subject of proceedings for the recovery of damages was at the time of the act or omission that caused the death, injury or damage intoxicated to the extent that the person's capacity to exercise reasonable care and skill was impaired. (2) A court is not to award damages in respect of liability to which this Part applies unless satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated. (3) If the court is satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated, it is to be presumed that the person was contributorily negligent unless the court is satisfied that the person's intoxication did not contribute in any way to the cause of the death, injury or damage. (4) When there is a presumption of contributory negligence, the court must assess damages on the basis that the damages to which the person would be entitled in the absence of contributory negligence are to be reduced on account of contributory negligence by 25% or a greater percentage determined by the court to be appropriate in the circumstances of the case. (5) This section does not apply in a case where the court is satisfied that the intoxication was not self-induced.
2. Section 50 appears in Pt 6 of the CL Act. By the operation of s 3B(1)(a)(ii) of that Act, that claimed defence is not available to the defendants in this case as the defendants' actions were carried out intentionally to cause injury and there was no such intention, criminal or otherwise, on the plaintiff's part. That said, in the alternative, the factual basis for that claimed defence must be examined, as now follows.
3. In my assessment of the evidence, there was no reliable evidentiary basis for concluding that the plaintiff was either intoxicated by alcohol or under the influence of drugs, so as to enliven a claim of a defence pursuant to s 50 of the CL Act. Accordingly, there is no basis for a reduction in the plaintiff's entitlement to damages on account of alleged contributory negligence.

Issue 7 - Claimed defence pursuant to s 52 of the CL Act

1. By paragraph 4 of the defence filed on 18 April 2019, the defendants pleaded a justification defence claiming that Mr Chang and Ms Hu had acted either in self-defence or in the defence of the sex worker Joy, thus seeking to enliven a defence based upon s 52 of the CL Act.
2. Section 52 of the CL Act provides as follows: 52 No civil liability for acts in self-defence (1) A person does not incur a liability to which this Part applies arising from any conduct of the person carried out in self-defence, but only if the conduct to which the person was responding: (a) was unlawful, or (b) would have been unlawful if the other person carrying out the conduct to which the person responds had not been suffering from a mental illness at the time of the conduct. (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary: (a) to defend himself or herself or another person, or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or (c) to protect property from unlawful taking, destruction, damage or interference, or (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them. (3) This section does not apply if the person uses force that involves the intentional or reckless infliction of death only: (a) to protect property, or (b) to prevent criminal trespass or to remove a person committing criminal trespass.50 No recovery where person intoxicated
3. In order to establish the defence of self-defence pursuant to s 52 of the CL Act the defendants must prove they were responding to unlawful conduct by the plaintiff: s 52(1) of the CL Act. To establish that defence, Mr Chang and Ms Hu must also prove that they believed their actions constituted a reasonable response to the circumstances that was necessary to defend either themselves or Joy from the plaintiff's actions, or to protect their property, or to remove the plaintiff if he was committing a criminal trespass: s 52(2) of the CL Act.
4. In the findings I have already identified, I have found that the plaintiff had not been acting unlawfully. In summary: 1. On 26 June 2018, before he was assaulted, he had not been warned by anyone on behalf of the defendants that he was trespassing at the 278 Cleveland Street brothel, and he was not trespassing at those premises; 2. He had been lawfully engaging in consensual sexual activity with the sex worker named Joy; 3. He had not sexually assaulted Joy at any time; 4. The entry of Mr Chang and Ms Hu into Room 11 was not in response to any cry for help from Joy and she had made no such call for assistance; 5. Joy was not being detained against her will, and was not in need of defence; 6. He was not damaging, interfering with, or destroying, the defendants' property; 7. The defendants had no sound reason for removal of the plaintiff from the premises by the use of physical force; 8. Mr Chang, followed by Ms Hu, were the initiators of the physical aggression that had been directed at the plaintiff; 9. There was no requirement that either Mr Chang or Ms Hu needed to defend themselves against any actions of the plaintiff.

Issue 8 - Claimed defence pursuant to s 53 of the CL Act

1. By paragraph 7 of the defence filed on 18 April 2019, the defendants sought to rely upon a claimed defence pursuant to s 53 of the CL Act.
2. Section 53 of the CL Act provides as follows: 53 Damages limitations apply even if self-defence not reasonable response (1) If section 52 would operate to prevent a person incurring a liability to which this Part applies in respect of any conduct but for the fact that the conduct was not a reasonable response in the circumstances as he or she perceived them, a court is nevertheless not to award damages against the person in respect of the conduct unless the court is satisfied that: (a) the circumstances of the case are exceptional, and (b) in the circumstances of the case, a failure to award damages would be harsh and unjust. (2) If the court determines to award damages on the basis of subsection (1), the following limitations apply to that award: (a) Part 2 (with the exception of Division 3 of that Part) applies with respect to the award of damages despite section 3B (1) (a), and (b) no damages may be awarded for non-economic loss.
3. The defendants' argument in support of a defence pursuant to s 53 of the CL Act was premised upon the factual contention that the plaintiff first laid hands upon Mr Chang in the sense of having assaulted him: T585.10. My fact findings are to the contrary on that contention. I have found that it was Mr Chang who first touched the plaintiff in anger. Furthermore, at the time of Mr Chang's physical confrontation with the plaintiff, he was not at all frightened, apprehensive or scared of the plaintiff: T353.34. Mr Chang assumed control of the circumstances. He was not in need of self-defence, and nor was Ms Hu, or the sex worker named Joy.
4. In my assessment, the actions of Mr Chang and Ms Hu, in initiating slaps, punches and kicks, and repeatedly applying them to the plaintiff in circumstances where he offered no resistance, in no way represented a perceived reasonable response to the circumstances that prevailed at the time: s 53(1) of the CL Act.
5. In conformity with my finding that s 52 of the CL Act does not afford the defendants a defence from liability. The position of Mr Chang and Ms Hu, in attacking the plaintiff, must be seen to have been unreasonable conduct.
6. Section 52 of the CL Act is a protective provision that is expressed in unusual terms that are premised upon the notion of self-defence. Section 53 of the CL Act is only engaged if s 52 of that Act is found to operate. I have found that not to be the case here.

Issue 9 - Assessment of damages

1. Consequent upon the plaintiff having made good his claims of having been intentionally assaulted, battered, and humiliatingly deprived of his liberty at the hands of the defendants, the defendants have failed to make good any of their claimed defences. It therefore becomes necessary to assess his entitlement to damages according to common law principles unaffected by any statutory scheme for the assessment of such damages.
2. The plaintiff ultimately relied upon an amended damages schedule totalling $597,201: MFI "2". In my view, that schedule contained assessment components that sought excessive damages. The defendants' damages schedule produced on the sixth day of the trial was in the contrasting amount of $67,889: MFI "10". In my view, the defendants' contrasting contentions for the assessment of damages represented inadequate compensation.
3. Consequent upon my findings on the liability issues calling for determination, my assessment of the plaintiff's entitlement to damages now follows.

General and aggravated damages for non-economic loss

1. The plaintiff has established that he was the victim of vicious and sustained assaults, during which, despite his attempts to protect and shield himself, he received not only slaps but repeated injurious blows to his head, hands, shoulders, neck and back from punches and from kicks to the abdomen. Those assaults were committed upon him by the second and third defendants. The first defendant is vicariously liable for those events.
2. For assessment purposes, those matters, and the related period of humiliating deprivation of his liberty, should be seen to form a single, but prolonged or sustained event, which was shocking and frightening for the plaintiff. The repeated punches and kicks sustained by the plaintiff were aggravating factors.
3. Given my general acceptance of the plaintiff's credit as a witness, I propose to treat the tendered medical evidence as a reliable source of detail of the plaintiff's post-injury difficulties and treatment: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995 (NSW).
4. The RPAH clinical notes recorded that when the plaintiff was assessed and treated at that hospital, it was noted that his injuries included having been punched and kicked in the head multiple times. He sustained inferior and medial orbital floor fractures with a bruised and swollen shut left eye that prevented a full ocular examination. Blurring of vision was also noted. The plaintiff's right eye was also noted to have been swollen shut. Grazes to the left forehead and cheek were also noted, as well as a fractured tooth. There was a loss of sensation in the left maxillary teeth. The plaintiff at that time also reported having left-sided frontal and occipital headaches.
5. The CT scan of the brain and facial bones taken whilst the plaintiff was in hospital showed a minimally displaced left lamina papyricia with ethmoid bleeding, a 5mm displaced fracture of a medial fragment of the left orbital floor, a comminuted fracture of the left anterior maxilla with retropulsed fragments into the maxillary sinus and probable damage to the left inferior rectus muscle, a facial muscle.
6. The plaintiff's examination at the emergency department at hospital was accompanied by him experiencing pain and distress, with associated numbness and impaired sensation in the distal distribution of the left infra-orbital nerve.

Exemplary damages

1. The assault and battery of the plaintiff was not only carried out in aggravated circumstances of a power imbalance, over a sustained period of time rather just a fleeting incident, the harm inflicted on the plaintiff was intentional. It was calculated at causing him injury and humiliation. This was in contumelious disregard of his rights. In that sense, the blows received by the plaintiff were delivered with malicious intent with the misconceived aim of teaching him a lesson. Those factors justify an award of exemplary damages. In those circumstances I assess the plaintiff's entitlement to exemplary damages in the claimed amount of $25,000.

Past economic loss

1. As a result of the events, the plaintiff has suffered a significant impairment to what was an otherwise unrestricted earning capacity.
2. In September 2016 the plaintiff commenced working as a manager in one of the two brothels owned and operated by his mother in Gladesville and Marrickville. He worked a 48 hour week full-time for 6 months at the Gladesville brothel and was paid between $1000 and $1500 per week in cash on a commission basis. He then transferred his employment to his mother's brothel at Marrickville where he worked a 56 hour week for which he was paid in cash, varying from $1200 to $1800 per week. His financial records did not reflect those earnings.
3. Prior to the events in question the plaintiff was able-bodied. Apart from his limited educational attainments, he had no apparent restrictions or impediments in seeking unskilled work on the open labour market.
4. The plaintiff claims past economic loss of $1000 per week gross or $821 per week net over 86 weeks (totalling $72,068), less estimated earnings as an Uber driver for 6 weeks at $500 per week (totalling $3000), yielding a claimed loss to date totalling $69,068.
5. That claim is based on the proposition that the plaintiff has been unable to return to work in the brothel industry because he has a residual fear of harm, and he has an inability to work as an Uber driver or in like employment, especially at night, for similar reasons. The medical evidence already cited also identifies other physical restrictions on his earning capacity due to the effects of the violence with which he was dealt. In view of his shoulder injury, work as a hairdresser would be difficult for him and this was ill-advised for him.
6. It must be recognised that the plaintiff had a common law duty to mitigate his damages. The defendants did not argue that there has been any alleged failure on the plaintiff's part to mitigate such losses.
7. That said, there seems to have been no sound reason until now for the plaintiff not to seek to pursue some suitable alternative work within his limited skillset. He has worked as a hairdresser in the past. He has an interest in automobiles. This suggests he is capable of acquiring a range of alternative work skills to being a receptionist in a brothel or being an Uber driver.
8. The hospital records euphemistically identified the plaintiff's occupation as being a shopkeeper. It is doubtful but possible that he could work in a conventional shop.

Future economic loss

1. In seeking to obtain evidence in support of an assessment of the plaintiff's claim for future loss of earning capacity, the plaintiff's solicitor obtained a forensic accountant's report dated 13 September 2019 from Furzer Crestani Forensic.
2. On the basis of assumptions put to those accountants, they were asked to prepare illustrative calculations estimating the plaintiff's earnings but for the subject incident on a series of three alternative scenarios. The first was an assumed gross weekly income of $3000 per week as a manager of a brothel; the second was at an hourly rate of $30 per hour as a receptionist in "a high class brothel"; and the third was on the basis of assumed earnings of $80,000 per annum as a venue manager.
3. The Furzer Crestani Forensic report identified calculations based on those three alternative assumptions. The amounts calculated according to those assumptions were all outwith the jurisdiction of the Court for determining this case, namely, $750,000. Those calculations were tabulated as follows: Elements of loss Scenario 1 Scenario 2 Scenario 3 (a) Past income $162,041 $74,151 $91,150 (b) Future income $1,647,227 $742,620 $910,504 (c) Superannuation $290,938 $116,370 $148,677 Total $2,100,206 $933,141 $1,150,331

1. The plaintiff's future economic loss submissions were based on the range identified in element (b) in the above tabulation. The defendants' submissions proceeded on the basis that no damages should be awarded for future economic loss.
2. As already observed, I consider that the submissions from both parties on the issue of future economic loss are unacceptable as they do not adequately reflect the medical evidence.
3. Therefore, instead, I propose to approach the assessment of future economic loss by adopting the same principles for a buffer approach as outlined in the authorities identified at paragraph [381] above.
4. Having regard to the medical evidence that touches upon the plaintiff's need for future treatment, I consider that the plaintiff is entitled to a modest buffer against the possibility that he may in the future encounter a degree of difficulty obtaining employment because of the residual psychological and physical sequelae of the events in question. I consider that a buffer amount of $30,000 would be a reasonable sum on that account. I therefore assess the plaintiff's damages for future loss of earning capacity in the buffer amount of $30,000.

Future treatment expenses

1. The plaintiff claimed an amount of $13,305 for future treatment expenses likely to be incurred over the ensuing 2 years: MFI "2". Those claimed expenses relate to consultations with his general practitioner, a psychologist, medication, and functional vocational assessments.
2. I consider the range of claimed treatment modalities identified in the plaintiff's submissions to be reasonable. However, the amounts claimed are only estimates which will undoubtedly vary as to incidence and frequency. I also recognise that the bulk of any expenses incurred for future treatment will most probably be incurred in the relative short term within the next few years rather than in the longer term.
3. In those circumstances I consider that a discounted buffer sum would be the appropriate method of assessment of this component of the plaintiff's claim. I consider that a reasonable allowance for this head of damage would be the buffer sum of $5000. I therefore assess the plaintiff's damages for future treatment expenses in the buffer amount of $5000.

Past out-of-pocket expenses

1. Past out-of-pocket expenses have been agreed in the amount of $6185.85. I therefore assess the plaintiff's claim for past out-of-pocket expenses in the amount of $6185.85.

Interest on general damages

1. The plaintiff claims interest on his damages award in respect of past damages. In this case interest is only allowable on some elements of the assessed damages.
2. Part of the plaintiff's general damages crystallised as at the time the deprivation of the plaintiff's liberty ceased, that is, within about half an hour of the events: Zavarinos v State of New South Wales [2004] NSWCA 320, at [52]. In my view, that component is a relatively small proportion.
3. Overall, I assess the plaintiff's past general damages for pain, suffering and loss of amenity of life, to date, a period of 1.34 years, at $40,000.
4. This requires that interest be awarded on $40,000 at the rate of 2 per cent over 1.34 years to the commencement of the hearing on 20 February 2020: MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; [1991] HCA 3. This yields the amount of $1072.
5. There is no evidence that the plaintiff's out-of-pocket expenses have already been paid by him. Accordingly, the evidence does not disclose a basis for interest to be assessed on those damages.
6. I therefore award interest on the plaintiff's past general damages in the amount of $1072.

Summary of damages assessment

1. My assessment of the plaintiff's damages is summarised as follows: (a) General damages for non-economic loss $75,000 (b) Exemplary damages $25,000 (c) Past economic loss $12,600 (d) Future economic loss $30,000 (e) Future treatment expenses $5,000 (f) Past out-of-pocket expenses $6,185.85 (g) Interest on general damages $1,072 Total $154,857.85

Disposition

1. The plaintiff has established his entitlement to a damages award of $154,857.85.

Costs

1. As the plaintiff has succeeded in obtaining a judgment in his favour, he should have an order that the defendants should pay his costs of the proceedings on the ordinary basis unless a party can show an entitlement to some other costs order, for which there should be liberty to apply.

Orders

1. I make the following orders: 1. Verdict and judgment for the plaintiff against each defendant in the sum of $154,857.85; 2. The defendants are to pay the plaintiff's costs on the ordinary basis unless otherwise ordered 3. The exhibits are to be retained with the Court file until the further order of the Court; 4. Liberty to apply on 7 days notice if further or other orders are required; 5. I direct the Registrar to forward a copy of these reasons, together with copies of the transcript, MFI "11" comprising the list of transcript errata, and a copy of pages 112 to 148 of Exhibit "B", to the Proper Officer at the Australian Taxation Office responsible for ensuring compliance with taxation obligations.

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 April 2020