Plaintiffs v Defendants

"I have never had to attend a job where I have been having to strike someone and felt fear for my safety to the degree of that night."

1. Asked about control of the situation, he said he thought they were getting it under control, but the arrival of the mother

"Out of control. I wasn't in control of the situation. I couldn't do it on my own."

1. He said he felt scared. I accept these comments except the attempt to blame the mother for the escalation. His comments, however, need to be considered in the context that Carter hit Sesin twice with his baton, that Carter was the person who initiated any physical action and was extremely violent. As to control, I am satisfied that Carter was the problem; Sesin had no control over him.
2. I will in due course consider the evidence about the whole incident. The examination of that evidence will, from time to time, reveal why I have formed an adverse view as to the credibility of Carter and Sesin in particular.
3. Before doing so, however, the evidence of the physical consequences of the incidents should be examined. It provides important context within which to assess the accuracy and credibility of their accounts of their conduct.

SECTION 11 EVIDENCE OF INJURIES RECEIVED BY THE PARTICIPANTS

1. A comparison may be made of what Carter and Sesin said to Sergeant Pluim, what they said in their formal statements, what the hospital records state and what they said in evidence.
   • 11.1 INJURIES TO CARTER AND SESIN

1. There is evidence of contemporaneous statements by Carter and Sesin about their injuries. I refer first to what Carter and Sesin said themselves to Sergeant Pluim as to their injuries, revealed on the recording that Sergeant Pluim made shortly after the event:

"CONSTABLE CARTER: Yeah ... I've got a lump on my head and you haven't.

SERGEANT PLUIM: Have you got a busted nose or just bruising?

CONSTABLE SESIN: No, just blood. A bit of a laceration on the side of the lip.

SERGEANT PLUIM: Yeah. You got whacked on the head with a stick.

CONSTABLE CARTER: Got a bit of a sore neck.

CONSTABLE SESIN: Bruising on the right forearm and bruising on the left upper arm. ...

CONSTABLE CARTER: That's what I did. Sorry mate.

CONSTABLE SESIN: That's all right.

CONSTABLE CARTER: I was just wanting to get him to let go of you ...

CONSTABLE SESIN: It's all right mate. I let go of him after that".[127]

1. Thus to Pluim, Carter complained of a lump on his head and a sore neck only. Sesin complained of blood from a laceration on the side of the lip and bruising to his arms caused by Carter. He did not complain of a punch to the nose or blows or bruising to his face.[128] He complained of blows to both arms from Carter and in fact asserted they were bruised.
2. In his formal statement, Carter stated that he received a lump to the rear of his head and had a burning sensation in that area and also felt quite dizzy "for a period of time after the incident". Sesin, in his formal statement, said:

"I sustained cuts to right side of my jaw, cuts and bruising under my right eye, cut upper lip, cuts to the inside of my mouth on the right side, bruising to my forehead, minor cuts behind my right ear, severe bruising to my right forearm, severe bruising to my left upper arm, stiffness to my neck and headaches."

11.1 (B) CARTER AND SESIN - HOSPITAL RECORDS

1. Later, at or shortly after 1.30 am, the two police officers, Carter and Sesin, were examined at the Box Hill Hospital. Statements made by the examining medical practitioners were tendered in evidence. In the case of Carter, the statement recorded that he "claimed to have been struck on the head with a walking stick. He had suffered no loss of consciousness." He was described as being "conscious and alert and orientated". Examination of central and peripheral nervous systems were normal. The statement recorded that there was "a small haematoma on his head in the left occipito-parietal area but no further injuries". It also records that he was subsequently discharged at 0250. He was instructed to use simple analgesics.
2. In the case of Sesin, the statement recorded that he had claimed "to have been punched in the face and mouth and struck on the right forearm and left arm. The doctor, in describing the facts she observed, recorded that Sesin complained of a painful right forearm and a painful left arm. The examination description recorded that:

"he was alert and vital signs were all within normal limits. Examination of the head revealed blood on the nose and right side of lip with small lacerations on the right side upper gum."

1. The arms were examined and as to the right forearm it was recorded that it

"revealed tenderness, swelling and bruising over the mid-dorsal surface with no obvious bony deformity. Pain limited some thumb movement (adduction and extension) and also limited with wrist extension."

1. As to the examination of the left arm, it revealed

"superficial graze over posterior aspect with pain limiting full elbow extension."

"- Minor laceration to face.

- Soft tissue injury to right forearm.

- Soft tissue injury to left arm."

1. The right forearm was x-rayed. It confirmed the absence of any bony damage.
2. Plainly, the hospital dealt with the injuries to Carter and Sesin on that basis that they were very minor, save for the injuries to Sesin's arm, the right arm being x-rayed. These injuries were caused by Carter not Donald Walker.

1. In evidence-in-chief, Carter said that the blow from Marcia Walker to his head had made him feel very dizzy by the time the other police had arrived and he had a rather large lump beginning to form. In cross-examination he said that he did not now recall what were the after effects of the blow to his head. He said he did have dizziness initially. He could not recall how long it went on for. He said as he sat there, he could not recall feeling like he was going to vomit at that time. Referred to the fact that the hospital record did not contain any reference to dizziness or nausea, he said that he accepted that that was what he said to the doctor, but he did not recall seeing a doctor. He was asked if there was any soreness associated with the point of impact, he said he had a fairly nasty lump on the back of the skull. Referred to the hospital doctor's report which described a small haematoma, he said they always feel bigger when you feel them than they actually are. He did not recall how big it was. He could not see it but he could feel it. He said he remembered that when he had been speaking to Sergeant Pluim, he might have had a bit of a sore neck just initially but as he sat there in the witness box, he could not recall it. He said he did not believe there was reference to it in the doctor's report.
2. Sesin gave evidence about Donald Walker while he was in the headlock pulling and scraping and scratching and thrashing about trying to pull his, Sesin's, arms off his neck and scratching at his face with hands flying everywhere from him. He said there was one that connected with his nose and made it bleed. Photographs were taken of him at the police premises in St Kilda Road about a week after the event. Referring to those photographs, Sesin identified a scratch on his chin running from just below the right corner of his mouth to a point above the jaw bone. He said his nose had been bruised and bled. He identified two small scratches under the right eye. He also identified some small scratches in the area between the back of his right ear and the hairline on that side of his head, and a scratch at the bottom of the neck region in that area. He identified another small scratch mark on his left forehead near the hairline. He also gave evidence that some bruising was shown in the photograph of the right side of his face from the laceration inside his cheek. As to the latter, he gave evidence that he had cuts on the inside of the right cheek, probably one and a half to two inches long. He said it ended up being quite swollen.
3. Most of these matters were not noted by the hospital staff. He did not mention them to Pluim.
4. He also gave evidence that he received bruising and swelling to his left upper arm, where he believed he was struck by Carter. He wasn't sure if he was struck only the once but he thought so. He said he did not get scratches to his arm.[129] He said that he would have been wearing a patrol jacket at night. In cross-examination he conceded that it was possible that he had been struck with a baton on the right forearm. He said he was not aware of Walker striking him on the right or left forearm.
5. Thus, in their evidence and in their formal statements, Carter and Sesin attempted to create an appearance of quite severe consequences, much more severe than anything stated to Pluim, or noted by the hospital staff. The only potentially serious injuries were those to Sesin, caused by Carter's baton blows.
   • 11.2 INJURIES TO DONALD WALKER

1. The police witnesses were unable to say very much about Donald Walker's injuries. His injuries did not appear to have registered with them - if they were telling the truth.
2. Carter, in his recorded conversation with Sergeant Pluim, spoke about Donald Walker's back being crook from his blows and referred to welts on his back being the result of "belting into him with the bat".[130]

1. Donald Walker gave evidence that when he was taken from the house he was very ill and in intense pain and discomfort in many parts of his body. His rib area was more painful than other areas. He said he was going in and out of consciousness. He said he had a complete feeling of concussion, numbness and was in extreme shock.
2. When he got home after being discharged from custody, he said he had pain all over his body which was intense, particularly where the ribs were broken. He said his back was in extreme pain where the officer had dropped from a height onto it. His wrists were extremely sore and he had an extremely sore neck. He said his kidneys, elbows and his whole body were in pain. He said prior to the incident his health had been perfect. He did not usually have aches or pains in any parts of his body. He said be became aware of headaches during the following day - a dull ache. He could not identify a particular part of the head that was affected - they were internal headaches. He also gave evidence that he did not see a doctor for about two or three days after the event. His explanation was that he was in complete shock.[131]

1. Marcus Walker took photographs of Donald Walker on the morning of his return to his home from the police station. They show at least two very substantial and significant sites of bruising on the left side of his torso consistent with being struck by something like a baton. There was a similar significant bruise on the right side of his back. An area above, over and below the back of his right elbow appeared to have been badly bruised. Photographs of his left and right thighs show substantial diagonal marks and a large bruise on the outside of the left thigh. As to the right leg, there is substantial bruising above, around and below the right knee and damage to the inner calf muscle area. There is a photograph of his right wrist showing a laceration to that wrist, which follows a line which would mimic that of a handcuff. He said that they were caused by the handcuffs being too tight. His left inner heel and ankle and top of the left foot show significant bruising and abrasions.[132]

1. For present purposes I confine the description to the injuries apparent in the month after the incident.
2. I refer first to a report dated 13 December 1993 by Dr Thomas, in which he recorded his examination of Donald Walker on 17 August 1993 - approximately two days after the incident. In the report, he noted the following:

"Clinically he did have a number of bruises and abrasions consistent with an alleged assault.

In particular, he had three large bruises on his trunk which was consistent with being hit with a baton. Also he had a large bruise over the medial aspect of his distal (R) thigh and knee - similar in shape to the bruises on the trunk.

He had multiple small abrasions over his (L) arm.

(L) foot

(R) elbow.

(R) wrist (consistent with hand cuffs).

He had a smaller bruise over his left arm.

He also felt that he had been 'concussed'. He had not lost consciousness but since the alleged attack, had noted blurred vision and headache."

1. Dr Thomas noted that the neurological examination was normal, but he also noticed additional findings, including abdominal tenderness and reduced movement of both shoulders. Dr Thomas organised an x-ray of his skull.
2. Donald Walker was also seen by Dr Rodney Spencer, who had been his doctor since 1975. The first consultation after the incident occurred on 19 August 1993. In his report of 26 October 1993, Dr Spencer stated the following:[133]

"Examination on 19/8/93 revealed, five days after alleged assault, severe bruising on the left loin (11 inches by 6 inches in area), left chest, right lower chest, the elbow, right thigh, calf and left thigh.

Mr Walker returned on 24/8 with rib pain suggested broken ribs. X-ray confirmed rib fractures of the eleventh and ninth ribs. He was seen by Dr David Thomas re neurological problems. I felt he was neurologically normal, but I am not aware of the results of the skull x-ray."

1. I note that Dr Spencer gave evidence that fracturing the ribs[134] where the fractures occurred would be very difficult.[135] The fracture was close to the spine in areas protected by overlying muscle - unlike the portions of the ribs at the front of the body.
2. When reviewed by Dr Thomas on 30 August 1993, Donald Walker complained of headache, dizziness, blurred vision, speech/walking affected and sore ribs. Dr Thomas recorded in the report that on that review

"clinically he was tender over the back of his head. He was tender over both sides lower rib cage".

1. Dr Thomas advised Donald Walker to have a CT head scan/x-ray of his cervical spine, and referred him to Dr Chambers, a neurologist, for further examination.
2. I am satisfied on a proper analysis of all the medical evidence that, notwithstanding it does not appear to have been recorded initially by his doctors as a complaint, Donald Walker's claim that he was struck on the head is also true.[136] The ordering of an X-ray of the skull was organised in the very early stages.
3. Donald Walker was next seen by Professor Chambers on 7 September 2003. As to physical injury, Professor Chambers diagnosed whiplash injury to the neck at that time. He also reported cognitive problems including memory, naming, comprehension and speed of processing. His view was that these were connected to the psychological trauma Donald Walker had suffered in the incident.
   • 11.3 INJURIES TO MARCIA WALKER

1. A document was produced from the hospital file of Mrs Marcia Walker and admitted into evidence. It recorded the following history:

"plaintiff involved in incident [with] police earlier tonight according to patient during a scuffle between police, her son and herself. Patient was pushed by police officer causing her to fall onto (R) side - patient's (R) arm was caught beneath patient after fall - causing severe pain. Amb called."

"conscious, orientated time, day and place. Skin pink viscous and dry to touch. Cl[aim]s pain right humerus. ↑ on movement described as severe constant pain. Normal movement, sensation (R) hand. No other cl[aime]d injuries, pain, discomfort. Patient visibly shaken and upset."

11.4 COMPARISON OF INJURIES, ACCOUNTS OF THE EVENT AND EVIDENCE

1. The medical and photographic evidence generally supports the evidence of Donald Walker as to the multiple severe bruising, broken ribs and neck injury, and symptoms of concussion, blurred vision, headaches, speech difficulties and widespread pain. The medical evidence, however, and the statements of Carter and Sesin, do not support Carter's claim of dizziness as a matter of any significance - if it occurred - or Sesin's claim of bruising to his face, or of lacerations as a matter of any significance. In Sesin's case, as noted above, the injuries of major concern were those caused by the baton blows to both his arms from Carter.
2. The evidence of the immediate injuries suffered by the participants, even that which is most favourable to the defence, reveals a significant difference between the injuries suffered by the police officers and those suffered by Donald Walker. That difference cannot be reconciled with the claims made by the police officers in official statements and their evidence about the prolonged and extreme violence of Donald Walker directed at them. Further, there is nothing in the injuries to the police officers to suggest that at any time Donald Walker set about attacking them. Carter had none from Donald Walker. Sesin's injuries from Donald Walker were confined to his face and were minor. They are, however, consistent with Donald Walker's account which was that with his left hand he initially tried to get out of the headlock applied by Sesin so that he could go to help his mother. This would explain the relatively minor injuries to the face of Sesin. If Donald Walker had been engaged in a violent assault on Sesin, and this had been prolonged as they asserted, there would have been other evidence of injuries to his face and head and other parts of his body. Even in the headlock position that he was apparently held in, he could have inflicted more damage, if he had wanted to attack Sesin. He had one arm free with which he could have punched Sesin in a variety of places.[137] He plainly did not. He could have attacked Sesin using both knees and feet, but he plainly did not. Immediately after the incident Carter and Sesin appeared to regard the most serious injuries suffered by Sesin, as did the Hospital, to be the blows to his arms which were blows, as Carter acknowledged at the time, from the baton of Carter.
3. The nature and extent of the injuries suffered by Sesin and Donald Walker and the absence of injury to Carter from Donald Walker, therefore, do not support the evidence and statements of Carter and Sesin about the prolonged extreme violence of Donald Walker. They strongly support Donald Walker's account, however, and the conclusion that it was the police who were violent and not Donald Walker.

SECTION 12 EVIDENCE RELATING TO THE INCIDENT

1. The defendants rely upon the evidence of Carter and Sesin and the other police witnesses to prove facts which justify the actions of Carter and Sesin. It, therefore, seems to me that the appropriate starting point in an examination of the evidence of the incident is to consider the evidence of the defence witnesses. I will do this in two parts. I will commence with the police evidence given about the preliminary events - that is the events prior to the shining of a torch into the eyes of Marcia Walker, the action which started the central event. I will then state my findings about the preliminary events. I will then consider the police evidence about the central events and state my findings about those events.
   • 12.2 EVIDENCE RELATING TO THE PRELIMINARY EVENTS

1. In considering the defence evidence of these preliminary events I have had the benefit of extremely detailed analysis by all counsel. This has required detailed consideration and responses on my part. The detail is such, however, that its significant features are obscured by that analysis. Accordingly, I have set out my consideration of the evidence in Appendix E (Analysis of evidence of Carter and Sesin and other police of preliminary events on 15 August 1993) and set out below a summary of what I consider to be the significant points and the conclusions to be drawn from them. Those conclusions are based on my examination of their evidence and that of other police witnesses, evidence which includes prior contemporaneous statements of Carter and Sesin recorded by them and Sergeants Pluim and Rodgers, all recorded by them in the course of their duties. Sergeant Pluim, recorded statements with a tape recorder. Sergeant Rodgers made notes as Carter spoke to him. At the time he did so, he was seeking the facts. My conclusions about the defence evidence have been reached independently of the evidence of Donald Walker.
2. The prior statements by Carter and Sesin and their evidence about the preliminary events reveal a variety of serious failings on their part as witnesses to those events. The failings cannot be satisfactorily explained on the basis of the effect of time on memory.
3. I refer to the following types of problems that are revealed in what they have said about these preliminary events.

(a) significant attempts to improve on prior statements in their evidence: e.g. evidence by Carter that they were told by D24 that a woman was being held against her will; evidence by Carter and Sesin that they heard Donald Walker say he would not let the police in; inconsistent attempts by Carter to embellish the account of the noises heard on arrival (not supported by Sesin);

(b) inconsistency between statements and evidence: e.g. their formal statements and evidence that the force applied by Carter to control Donald Walker caused a picture to fall from the wall contradicted by their statements made to Sergeant Rogers

(c) failure to support prior statements by sworn evidence: e.g. the level and nature of resistance by Donald Walker when the police entered the premises;

(d) a combination of (a), (b) and (c): e.g. the positions and actions of Ms Hamm and Donald Walker when the police entered;

(e) a claimed inability to remember significant events: e.g. their inability to give any evidence about the presence or absence of Donald Walker's shirt.

1. I am satisfied that they also created events. I refer, in particular, to their claim that Ms Hamm screamed just before Carter kicked the door in, and Sesin's claim that Ms Hamm told him that Donald Walker had threatened her with a kitchen knife.
2. A detailed analysis of these matters is to be found in Appendix E.
3. I note also that a number of aspects of these preliminary events could have been the subject of evidence by Ms Hamm. Ms Hamm could have been called by either defendant. As already noted, the first defendant's counsel stated on three occasions that they would be calling her and also put matters to Donald Walker on that basis.[138] The failure of the defendants to call her has not been explained. I refer to my comments above about the application of the principles enunciated in Jones v Dunkel.[139] In particular, I am satisfied that the failure to call her should be taken into account in deciding whether to reject the evidence of Carter and Sesin on those matters.
4. In my view, the failings revealed in the evidence of Carter and Sesin about the events leading up to the central events so damaged their credibility that their evidence required strong or independent support before it could be accepted. Such independent evidence, however, is not available. They cannot, therefore, establish the facts they seek to have found.
   • 12.3 FINDINGS IN RELATION TO PRELIMINARY EVENTS
5. The making of findings as to what occurred in the preliminary period depends primarily on the evidence of Donald Walker (summarised in Appendix I - Events prior to police arrival - analysis of the evidence of Donald Walker), that I accept combined with the common ground. I am satisfied that the following occurred:

• Carter and Sesin received a call from D24 to attend a domestic in the rear flat at 46 Essex Road. They were not informed that there was a woman being held against her will.
  • Shortly after their arrival, Donald Walker heard a thump on the door and someone shout "Police". Ms Hamm was in the lounge room near the entrance to the music room. Donald Walker moved from the kitchen towards the front door. He did not respond orally. When Donald Walker was about 2 to 3 feet from it, Carter kicked the door in, causing a picture to fall from the wall. Ms Hamm did not scream prior to the door being kicked in or afterwards. Sounds of movement only (not violence) were heard by the police before Carter kicked the door in. Ms Hamm, at this point, was in the lounge room but nearer to the passageway. Donald Walker was not restraining her.
  • Carter and Sesin burst in. Donald Walker held his arms out at shoulder level with palms out in a reaction to their entry.
  • He attempted to speak to Carter and Sesin, but his attempts were ignored and Carter grabbed him and pushed him against the wall. Donald Walker did not resist him and did nothing aggressive. By this time Ms Hamm had come to the corner of the couch which marked the passageway to the front door. She and Sesin went into the kitchen while Donald Walker remained with Carter. Ms Hamm did not say to Sesin that Donald Walker had threatened her with a knife.
  • Carter and Sesin swapped. Donald Walker was requested to obtain a bag belonging to Ms Hamm, which he had placed in his study, which he had locked because of the party earlier that night. He went into the study with Carter and returned with the bag which was handed to Ms Hamm. She was asked to wait outside. Before leaving, she said she had another bag that she wanted. I am satisfied that up to this point, Donald Walker, while probably angry, and his anger probably being apparent, had nonetheless co-operated with Carter and Sesin and had not threatened them.
  • Shortly prior to the arrival of Mrs Walker, the situation appeared to be reasonably calm. Donald Walker, while probably still angry, was not threatening Ruth Hamm or the police and had been co-operative in getting her bag. Such violent action as there had been up till then had come from the police, notably Carter.
  • Mrs Walker arrived aided by her walking stick. There was patently a problem about her mobility and balance. Mrs Walker did not enter waving a walking stick and torch around. Marcia Walker did not wave her arms about like an Italian. Responding to a question from a policeman who asked her who she was, she introduced herself as Mrs Walker and said Donald was her son and that the apartment was his home. She also said that she had a severe muscle wasting disease called polymyositis. Carter then said "wouldn't it be best if you weren't here". She did not say that she would sort the matter out and the police could leave. Donald Walker could not recall his mother's answer to Carter's proposition. Marcia Walker did not ask the police to leave. She did not say to Ruth Hamm words to the effect "haven't you caused enough trouble already?". The police asked Ms Hamm to wait outside and she did so. As Ms Hamm left the premises her bag, it accidentally bumped into Mrs Walker, who was near the door, and she appeared to be in danger of losing her balance. Donald Walker tried to go to her assistance, but Sesin grabbed his shirt and tore it before he could do so. Donald Walker went back around the couch into the living room area, removed the shirt, placed it in a safe place. Ruth Hamm waited outside the entrance near the front door and did not re-enter the unit.
  • Donald Walker returned to a position near Sesin who was near the entrance to the kitchen and was between him and Carter and Marcia Walker. The latter were near the front door.
  • Donald Walker would probably have still been angry and, while co-operating appropriately, would probably not have concealed the fact that he was angry. He had not, however, at any time up to this point threatened anyone or given any indication of threats and had followed Carter and Sesin's instructions.

• 12.4 EVIDENCE RELATING TO THE CENTRAL EVENTS

1. The previous statements and evidence of Carter and Sesin about the central events (from the shining of the torch light onto the face of Mrs Walker to the alleged "standoff") suffer from the same types of failings. They include further examples of subsequent invention, notably:
   • Whether Carter's call to D24 was a "Code 9" call,
   • Sesin's evidence about the circumstances leading up to the headlock he placed on Donald Walker,[140]
   • Carter's statements and evidence about when and how Mrs Walker came to be injured,[141]
   • Carter's and Sesin's statements and evidence about how, after the violent exchange with Donald Walker had ended, they were so exhausted that they had not only to abandon their attempt to handcuff Donald Walker, but also to surrender their position of control and call for help - the "stand-off".[142]
2. I will break up the assessment of the evidence about the central event into its two principal aspects; the altercation between Carter, Sesin and Donald Walker and that between Carter and Mrs Walker.

12.4 (B) THE CARTER, SESIN, DONALD WALKER ALTERCATION

1. Set out below in Appendix G is a review of the statements and evidence of Carter and Sesin concerning difference aspects of their altercation with Donald Walker:
   • The alleged Code 9 call
   • The alleged standoff
   • The physical altercation itself.
2. When Carter and Sesin sat down to write their statements, they attempted to describe an event of continuing and extreme violence by Donald Walker. They contradict that in their evidence.
3. The picture they tried to draw in their statements was that Donald Walker had initiated a violent struggle and had persisted in it despite repeated requests and warnings. For the reasons set out in Appendix G, I have reached the conclusion that they failed in their evidence to maintain that picture. In addition, they differed in what they said in their statements and their evidence was inconsistent with their statements. The explanation for their difficulties was principally that their statements were inventions divorced from the reality of the injuries suffered and what occurred.
4. In evidence, the alleged punch to Sesin was revealed to be a result of Donald Walker's left hand flailing about in the region of his face and striking him near the nose. Sesin, in fact, in his evidence, described Donald Walker as "thrashing like a rabbit". This would appear to be a very apt description because on the evidence, while in the headlock, he was pinned down and engaged in ineffective thrashing of one arm. Carter could do no better in describing the alleged struggle. That appears to be the extent of the violence of Donald Walker.
5. Having reached that conclusion, it might be thought pointless to examine closely their evidence about what appears to have been, on the evidence of Sesin and Donald Walker, the first and critical decision and action of Sesin - the placing of the headlock. Bearing in mind the lack of honesty and unreliability in the statements and evidence of Sesin and Carter as to the preliminary events, it might be thought to be even more pointless. The defendants, however, have advanced arguments to justify that first action, the headlock. They must, to succeed, not only justify that action, but also must be able to justify the action that followed. The points raised need to be considered.

12.4 (C) THE FIRST PHYSICAL ACT IN ISSUE - THE HEADLOCK

1. Sesin claimed in his evidence that he placed Donald Walker in a headlock because he thought he was going to attack him. The central issue is, did Sesin believe, on reasonable grounds, that what he did was necessary? Acceptance of Sesin's evidence of his reasons for placing the headlock is therefore of critical importance for the defendants' case, as is an examination of the circumstances that he observed. These are major problems with that evidence.
2. I turn to Sesin's statement and evidence.
3. In his formal statement, Sesin referred to Mrs Walker flashing a torch in her own face and Donald Walker's complaints and that, immediately after saying "You cunts, leave my mother alone", Mrs Walker said "No dear it's my torch". He then stated that Donald Walker became very aggressive and violent and went on to describe the joint attempts by him and Carter to subdue the defendant by calming him down and subsequently forcing him to the ground. His statement did not record where Carter was situated at the time the violence began but his statement recorded that he and Carter "attempted to subdue" Donald Walker before the headlock was applied.
4. In Sesin's evidence his account changed significantly. He referred to matters not mentioned in his statement. But in doing so, he not only effectively abandoned the hyperbole of his statement, he also introduced new and critical details.

(1) Sesin gave evidence that Carter was nowhere near Mrs Walker and, in fact, was between him and Donald Walker so that the nearest person to Mrs Walker was him, Sesin.

(2) He gave evidence that, in substance, Walker moved aggressively past Carter towards him, Sesin. This movement was described in evidence-in-chief as a lunge, and a little later as like a rugby tackle. Sesin gave evidence that he believed that Walker did so, for the purpose of attacking them. This is a very different picture to that which he attempted to create in his statement when he simply referred to Donald Walker becoming very aggressive and violent and both he, Sesin, and Carter at the same time trying to subdue him.

(3) In his evidence, he placed Donald Walker in a headlock before there was any violence.

1. It needs to be borne in mind that this new evidence helped the defendant's case by helping Carter and so it is significant that it was plainly contradicted by Carter. Carter and Donald Walker were agreed in their evidence that Carter was beside Mrs Walker and physically attempting to move her. Further, the defendants, recognising major difficulties with this new account, seek a finding that Carter was near Mrs Walker at the time the torch shone in Mrs Walker's eyes. The defence, therefore, rejects Sesin's evidence about Carter's location. But it will be seen that the locations of Sesin and Carter were critical to Sesin's justification of the headlock in his new evidence.
2. The description of Donald Walker's conduct by Sesin was consistent with Donald Walker attempting to move quickly to his mother's assistance. Sesin said that he did not know if that was Donald Walker's purpose. Pressed, in cross-examination, he said that because of Donald Walker's aggressive manner he believed he was approaching him, Sesin. Pressed further, he relied on the proposition that, because Donald Walker was complaining about the police shining the torch in Marcia Walker's eyes and he, Sesin, was the closest person to Marcia Walker, he, Sesin, was likely to be the object of Donald Walker's advance and not his mother even though, on Sesin's new account,
   • Donald Walker was moving in the direction of his mother and
   • no policeman was touching her
   • he, Sesin, was not holding a torch
   • no policeman had a torch illuminated. (At one point he said that Carter had his torch but it was in its holder. Later he said that Carter had a torch out but could not recall if it was switched on.
   • both policeman were in Donald Walker's view.
   • He, Sesin, was not in close proximity to Marcia Walker.
3. As to the latter point, he was also asked if he was within reaching distance of Marcia Walker without moving his feet. His reply was "not that I can recall". Pressed, he said he did not know one way or the other. He said he did not know if Carter could have reached her without using his feet. At the same time he said that Donald Walker could not have reached his mother without using his feet. Again Sesin was singularly unconvincing.

1. I am satisfied that Sesin attempted at the trial tried to improve the defence position[143] with a reconstruction which was false and deliberately so. It is difficult to conceive how such an account could be the consequence of failed or distorted memory resulting from the passage of time. His new version served an important purpose. It kept Carter away from Marcia Walker and, as a result, avoided any questions about Carter's treatment of Marcia Walker. It also provided a potentially simple justification for the headlock - namely, Sesin thought he was about to be attacked. He would have done better to adopt one of Carter's scenarios.
2. Defence counsel, appreciating some of the difficulties posed by Sesin's new evidence, do not rely upon its key features - the location of Carter and his lack of any role in the events leading up to the headlock. This creates problems for the defendants; in their attempt to justify the headlock they are not able to use a key element of the justification advanced for the headlock by the person who placed it. The defence might have sought to rely upon Carter's presence near Marcia Walker as a factor in Sesin's decision but could not because of Sesin's evidence. A further problem is that while acknowledging the difficulty in one aspect of Sesin's new evidence, they argue that the other aspects of it are credible and should be accepted.

The defendants' case - Sesin's evidence modified

1. Undeterred, the defendants argued that, while Sesin's evidence about Carter's position and actions should be rejected and that it should be found that Carter was with Marcia Walker, Sesin's evidence nonetheless should be accepted that:
   • he felt threatened by Donald Walker and he had reasonable grounds for that feeling and
   • Donald Walker in any event attacked him by not proceeding past him but locking horns with him.

In either circumstance, the headlock was justified in the exercise of the power of arrest, self-defence or to prevent a breach of the peace created by Donald Walker.

1. As to the first circumstance, the argument appears to be, that notwithstanding that a critical part of Sesin's sworn basis for his belief that he was threatened was erroneous, he had reasonable grounds for his belief. Having reached that conclusion, however, what is to be taken into account in assessing the reasonableness of the belief? Is it to be assumed that Carter was in fact standing next to Marcia Walker? But Sesin did not believe that he was. Further, if Carter was standing next to Marcia Walker, there was no reasonable basis for Sesin to feel threatened because plainly Donald Walker's interests was and would have been in Carter and his mother and not Sesin. Carter and Marcia Walker were Donald Walker's goal and the last thing he would have wanted to do was to attack Sesin. In that regard, I note that in his evidence, Sesin said that he was standing with his back to the kitchen wall when Donald Walker moved and this left a passageway between him and the rear of the couch along which Walker could have passed to get to his mother.
2. The defendants need to point to some other facts believed by Sesin which provide a reasonable basis for Sesin believing that he was threatened by Donald Walker. Sesin was questioned extensively about the nature of Donald Walker's movement. He tried but failed to describe the movements as indicating an intention to attack him as against an intent to go to the help of his mother. Both in evidence-in-chief and cross-examination he was singularly unconvincing. This was another example where under cross examination, he, like other police witnesses, could not substantiate statements intended to give the impression of extreme violence and aggression on the part of Donald Walker.
3. The defendants fail on the first aspect - the issue of reasonable grounds for feeling threatened.
4. As to the second circumstance or alternative, for the defence to succeed, again Sesin's evidence that he was attacked must be accepted. But his evidence as to this event is completely lacking in credibility. In addition, while he attempted to deny it, I am satisfied from his evidence that he turned to face Donald Walker and moved into his path to interrupt his passage to his mother.

The remaining alternative - Carter's statement and evidence

1. The defence is then left with Carter's statement and evidence. This also was unsatisfactory. Carter's account was that, shortly prior to the violence breaking out, he, Carter, was in close proximity to Mrs Walker[144] and had in fact placed a hand on to her shoulder and, shortly afterwards, a torch light shone in her eyes. In his statement and evidence he repeated Sesin's account of what Donald Walker and Marcia Walker said. Carter, however, offered different explanations for the light shining in her eyes - that he bumped her arm which caused her torch light to shine in her face (the statement) or that she was waving her torch about and he must have bumped her arm which caused it to shine in her face (his evidence).[145] Carter, in his statement and in his evidence, then referred to Donald Walker punching the left hand side of Sesin's face with a clenched fist and violently struggling prior to the headlock. In the statement nothing preceded the punch. In his evidence, however, aided by the reminder of what he had said in the Magistrates' Court, he incorporated a period of what he called "chesting" before the punch was thrown, something not referred to in his statement.[146]
2. If that is what happened, why did not Sesin say so in his statement and later in his evidence? There is no independent support for Carter's account.[147] Both accounts should be rejected.
3. The defence faces a further difficulty in trying to rely on Carter's account. Carter, in cross-examination, conceded that he understood that Donald Walker was trying to get to his mother to help her. This was something he had also conceded in the Magistrates' Court hearing.[148] If Carter understood that, why didn't Sesin?[149] Further, if Carter's account is to be put forward as supplying the circumstances to be considered in deciding the reasonableness of Sesin's belief that he was threatened, the fact that it was clear that Donald Walker was trying to go to his mother deprives Sesin of any reasonable basis for Sesin to feel threatened.
4. Mention should be made specifically of the defence of reasonable action taken to prevent a breach of the peace. As to that, one might speculate that Sesin was concerned that if Donald Walker reached his disabled mother and Carter, and tried to assist his mother, Carter might do something physically violent again and matters would get out of control and people would be injured. One might speculate that he decided to try to forestall that by placing the headlock, but there is no evidence of any sort to support such speculation and no party pursued it. On the evidence, as presented by the parties, there was no potential breach of the peace involved in Donald Walker's move towards his mother to help her.
5. The reality is that Sesin has not told the truth about his reasons for his actions and the evidence of both Sesin and Carter on these aspects should be rejected.
6. It may fairly be said that the defence evidence, and its case, on this first critical issue is in disarray. I turn to the defence evidence relating to the alleged assault and battery of Marcia Walker. It is no better.

12.4 (D) THE CARTER, MARCIA WALKER ALTERCATION

1. The only direct admissible evidence of the events surrounding the injuring of Mrs Walker called by the defendants is that given by Carter. It provides an example of Carter dishonestly reconstructing an event in such a way as to, as he thought, assist himself. But he was not astute enough to realise that it made his situation worse. Sesin did not venture into this area. Also relevant is the Pluim tape evidence of an exchange between Pluim and Carter concerning what Marcia Walker said to Pluim. I will return to it in due course. It provides the explanation for Carter's reconstruction.
2. The first account of the altercation given by Carter was one given to Sergeant Pluim immediately after the incident and at the scene. It was recorded in Pluim's tape. Carter said he turned around and Mrs Walker hit him with the cane. He said that he had grabbed the cane and she resisted and he pushed her down on the table, trying to be as gentle as possible without trying to hurt her and trying to get her away from him as much as he could. He said that he held the cane, saying "let go of the cane". He described how she would not let go and he hit the cane with his baton and broke it.
3. Sergeant Rodgers[150] made notes of Carter's statements to him about what occurred that night. The notes were made at the Box Hill Hospital shortly after the event. They record Carter saying that Donald Walker started to struggle with Sesin and that he assisted Mrs Walker around the corner to a seat. He, in evidence, said this was the lounge seat. In the notes he is recorded as saying that Donald Walker was hitting Sesin, that his hands were on Sesin's face and they were struggling up against the wall near the TV. The notes then record "Carter mother fell down on coffee table". The word "Carter", however, has been crossed out. The notes then record him saying that he went to assist Sesin and grabbed hold of Donald Walker's left arm and tried to pull it up behind his back. The notes record further struggles and record that Donald Walker was "gotten on the floor", that (presumably Carter?) "possibly fell down on him"[151] The notes then record:

"Mother has gone crazy. Carter pulled baton (Donald Walker) had hand on Sesin's face. Trying to pull him around. (Donald Walker) told to stop struggling. Carter hit him three-four, two on back and around the leg area. Stop struggling told him."

"Carter reached up to commence strike. Mother grabbed right arm (baton arm) and hit Carter to back of head with cane. Causing Carter to fall on the ground. Turned around and moth[er] had the cane in air again. About to hit again. Carter grabbed cane with left hand. Mother sitting on coffee table. Pulled on cane. Told her to let it go x 2. Didn't. Pulled again. Told third time. Hit cane with baton to force her to let it go. Snapped and threw the handle into the other room. Mother grabbed Carter on jacket. To prevent Carter assisting Sesin."

"Pushed mother to floor so he could assist Sesin. Carter hit (Donald Walker) on back."[152]

1. It should be noted that in the Pluim tape and the Rodgers notes there is no mention that Mrs Walker calling out that her arm was broken prior to the walking stick incident, or prior to being pushed by Carter. In addition, Carter did not volunteer to Pluim or to Rodgers that she was knocked over in any scuffle. The only explanation to be derived from the above is that she was either injured when she was pushed by Carter, or at or after the smashing of the cane. There is nothing in those records to suggest that she suffered a dislocated shoulder prior to striking Carter with the walking stick.
2. Carter's account, in his formal statement and evidence, changed significantly from the statements that he made very close to the event.
3. In his evidence in chief, Carter said in substance that somehow Mrs Walker fell to the ground during the struggle between Sesin and Donald Walker, into which Carter had become involved. This provided an explanation for Marcia Walker's fall in the torch incident which exonerated him. Carter went on to describe her as being on the ground and complaining that she had suffered a broken arm. He was unable to be more specific than that. He gave evidence in accordance with his statement that he placed his arm under her armpit, lifted her up and walked her around, placing her on the edge of the coffee table. He then rejoined Sesin to assist him.
4. In his statement and his evidence, Carter went on to refer to the incident with the walking stick and the restraining of his baton arm, both happening at or about the same time. He referred to his right arm being grabbed by a hand when he had the baton raised about to hit Donald Walker and, at about the same time, he saw out the corner of his eye something about to strike him coming from the location of Mrs Walker. He felt a sharp blow to the rear of his head, causing a burning sensation and he described himself as feeling a little dizzy. He said he turned around and saw her sitting on the edge of the coffee table with her walking stick in her hand.[153] He realised he had been struck by the walking stick and immediately grabbed it and pulled it towards himself, demanding that she let it go. He described himself as repeating the demand twice. She refused to let it go. He said he hit the walking stick with his baton, causing it to break. He said that he threw the piece that he had in his hand into the other room. He then returned to assist Sesin.
5. An obvious problem with this account was that it described Marcia Walker as using both arms at the same time, one to restrain him and one to strike him with the walking stick, and that they fought over the walking stick even though one of Mrs Walker's arms was dislocated at the shoulder. There was no suggestion by Carter that she showed any sign of pain herself when engaged in that exercise. It is understandable that defence counsel thought it wise not to rely on this account.
6. It was Marcia Walker's right arm that was dislocated. Carter was cross-examined by counsel for the plaintiff about whether, with Mrs Walker, who was standing behind him, it was odds on that she used her right hand on his baton arm and struck him with the walking stick held in her left hand. He did not respond to the questions about the logic of the situation, stating that he could not remember which hand "grabbed" his right arm. He also attempted to downplay the description of the grabbing of his arm as he attempted to strike Donald Walker with the baton. It became more that he stopped his arm descending because there was a hand on his arm. In this way, in the course of his oral evidence, he tried to deal with the major problem in his account in his statement and in evidence that Mrs Walker, with a dislocated shoulder, was seeking, with one arm, to restrain the hand wielding the baton and, with the other, to hit him forcefully over the head with her walking stick.
7. Defence counsel produced an elaborate submission canvassing different possibilities on the evidence, in the course of which they distanced themselves from Carter's evidence and sought to draw inferences from the evidence of Sesin[154] to suggest that it was probably in the course of the walking stick incident that she suffered her injury, but that in any event, if it was the result of an intentional act on the part of Carter, it was reasonably justified because of the assault on Sesin by Donald Walker.
8. Sergeant Pluim's tape provides an explanation for the evolution of Carter's evidence. It records that, after Sergeant Pluim mentioned the ambulance taking Mrs Walker to the hospital to get her arm fixed, Carter said:

"I don't know - I can't remember if I hit her on the arm. All I know is I hit the - I know I hit the cane -"

1. Carter was plainly looking for help. Pluim obliged in the following exchange:

"SERGEANT PLUIM: No she said - she told me that hurt - that she hurt her arm when she fell over - when she was bumped over by the police".[155]

CONSTABLE CARTER: Yeah, well, there you go. I didn't think I hit her arm, I was positive I hit the cane ...

SERGEANT PLUIM: In the scuffle - in the police scuffle. She was knocked out of the way or something.

CONSTABLE CARTER: Yeah, because - yeah. Mate, I ..."

1. I note that, on a fair reading of all Mrs Walker relevantly said, Sergeant Pluim misrepresented to Carter the substance of what she said. The tape records her saying that they had pushed her so that she fell, and that she thought her arm was almost certainly broken. Sergeant Pluim then vigorously challenged her.[156]

"SERGEANT PLUIM: You're trying to tell me that a policeman just pushed you over in the lounge room?,

1. He attempted a little later to get her to change her account.

"SERGEANT PLUIM: I don't understand; you said they were scuffling there and that's when you got knocked over, is that right? They were scuffling there and you got knocked over - that's what you just said?,[157]

1. Pluim seized on that answer to his leading question, interpreting her response indicating she was not pushed, but was caught in the scuffle. In doing so he ignored her answers prior to that question and her subsequent answers.
2. Turning to those subsequent answers, Marcia Walker said "The scuffling started when they pushed me." Later on when she referred to her "nice predicament with a broken arm" and she had told him that she was disabled, Sergeant Pluim asked her who she told she was disabled and she replied "That constable and still they pushed me around and I couldn't stand". Later, having spoken about her muscle wasting disease and complained about being pushed, Sergeant Pluim commented that in fairness they were probably not to know about her disability and referred to the heat of the moment, and she replied "They shouldn't push an elderly woman anyway".
3. Carter took up Sergeant Pluim's suggestion. When speaking to Rodgers, the new version was only partially developed. It was not fully developed until he made his formal statement. In his formal statement, he fully adopts the Pluim scenario, notwithstanding the inherent improbability he created in doing so, an improbability such that his own counsel sensibly sought to distance themselves.
4. So far as liability is concerned, it probably does not matter whether Mrs Walker was injured in the alleged scuffle, or was struck or pushed by Carter. The outcome depends upon whether, at the time it occurred, the two police officers were acting lawfully. I am satisfied that they were not.

1. The type of problems identified in Carter and Sesin's evidence and statements about the events prior to the arrival of Marcia Walker also occurred in their account of the central incident. For the reasons discussed, the evidence of Carter and Sesin as to what occurred in the central incident cannot be relied upon. In the matters identified they have created false and exaggerated accounts of what occurred and have done so to try to provide themselves with justifications for what they did.
2. One of the reasons for that occurring was inappropriate encouragement from their colleagues and the general attitude of hostility and contempt towards Donald and Marcia Walker. These matters are discussed in Appendix H (Assessment of Defence Evidence - Causes of the Disarray). In that Appendix and Appendix G, in which the "Code 9" (Appendix G.1(a)) and "stand-off" (Appendix G.1(b)) allegations are discussed, I have considered the evidence of the other police officers. For the reasons there set out, I have come to the conclusion that I should not rely on the evidence of the other defence witnesses about the incident which are relied upon by the defendants to support the evidence of Carter and Sesin.

1. The defendants are not able to justify the initial headlock. It follows that Donald Walker has established that, when Sesin placed him in a headlock, he was the victim of an unlawful assault and battery by Sesin and he was entitled to resist. The defence have not proved any subsequent action on his part as against Carter or Sesin that went beyond his legitimate right to resist the unlawful headlock and their unlawful physical assaults on him. If the police made demands of Donald Walker as to his behaviour, they were not entitled to do so. His conduct at all times was directed by his concern for his mother and his desire to go to her help. Her actions in hitting Carter with her walking stick were also justified, because Carter was engaged in unlawful assault and battery of Donald Walker.
2. The analysis of the evidence of the incident, relevant to the alleged assault and battery on Donald Walker and Marcia Walker, could be left at that point without making findings as to what occurred. It is necessary, however, that I make findings about what occurred in that event. Such findings are required to enable a conclusion to be reached about the respective damages claims, the liability, if any, to Marcus Walker and the question of aggravated and exemplary damages. To that end, it is necessary to make findings about what occurred in the central event. I do so on the basis of Donald Walker's evidence of the events of the night and the evidence of Carter and Sesin that I accept.
   • 12.5 FINDINGS RELATING TO THE CENTRAL EVENTS

1. I have referred to my analysis of the criticism of Donald Walker's credibility made on behalf of defence counsel in which I have indicated my conclusion about the particular items of evidence involved.[158]
2. I have referred above to my overall assessment of Donald Walker as a witness. - essentially, honest and conscientious but some reliability issues. Also addressed above are my findings as to the events leading up to the incident.[159]

1. As to the central event, generally, Donald Walker's account of what occurred should be accepted. He was, in my view, a credible witness and it was only after the point in the incident where his consciousness was affected that I consider that his evidence should not be relied upon about the precise nature and sequence of events that affected him and his mother. His account generally was supported by the evidence of the relative injuries suffered. His evidence was also supported by some police evidence. I refer, for example, to Carter's evidence about the actions with the torch (partial support) and Carter's presence next to Marcia Walker at the time the torch shone in her eyes and his evidence that she had a fall prior to the walking stick incident. I refer to Sesin's evidence of the headlock being the first contact between him and Donald Walker and his description of Donald Walker "thrashing about like a rabbit". I refer also to Carter's descriptions to Pluim as recorded on the tape made shortly before referring to the interruption with the walking stick by Mr Walker where he said:

"...I just starting belting into him with the baton telling him to get down"

"I just - and that's when I flew back over and started belting the bloke with me baton again. What could we do?"'

1. I make the following findings as to the events of the central incident that follow from the shirt incident.

1. Shortly after the arrival of Marcia Walker and the tearing of the shirt, and shortly prior to the torch incident, Carter called for police assistance. This was what Carter told Rodgers. It would have been understandable that they called D24 then having regard to
   • their lack of experience and their high anxiety levels,
   • the fact that the shirt incident had just happened and
   • they now had the obviously frail and a disabled senior citizen to look after.

1. Carter attempted physically to make Mrs Walker leave. He approached her, put his hand on her right shoulder and, for reasons best known to him, shone his torch in her face. This was an assault and created a danger for her physical safety because of her lack of stability.
2. As Donald Walker returned to a position near the couch, he saw the torch shine in his mother's face.[160] She was standing near the door. Sesin was standing between Carter and Donald Walker at the entrance into the dining/kitchen area with his back to the wall keeping everyone under observation. Donald Walker called out to the police "Don't shine your torch in my mother's face" He also spoke of her having an eye condition. She called to him for help several times. Carter cannot justify his actions with the torch. Again it was Carter who introduced an element of aggression.

12.5 (E) THE HEADLOCK AND SUBSEQUENT BEATING OF DONALD WALKER UP TO HIS ARREST

1. Donald Walker moved forward to assist his mother. As he did so, Sesin stepped into his path and placed him in a headlock. Sesin's claim that he felt intimidated and feared for his own safety should be rejected. He did not believe that and there was no basis for that view. For reasons which he has not satisfactorily explained, and for which there is no satisfactory explanation advanced by the defence, he chose to place Donald Walker in a headlock and thereby assaulted him without lawful justification.
2. Donald Walker told Sesin that he was wanting to help his mother. Sesin said nothing. Donald Walker saw his mother fall over the couch onto the floor. He attempted to get out of the headlock, using his left hand and applying it to the face and head of Sesin. In doing so, he scratched Sesin's face and inside his mouth. He also caused a blood nose. I am satisfied, however, that he did not throw a deliberate punch. Rather, his left arm was flailing about like a "thrashing rabbit" in his efforts to get out of the headlock to go to his mother. He kept telling Sesin that he was wanting to go to his mother to help her. Sesin struck Donald Walker a number of blows with his baton on the legs to force him to the ground. He was joined by Carter, who proceeded, deliberately and with all the force he could muster, to strike Donald Walker on the left hand side of his torso with his baton at least twice. While he was still held in a headlock, Carter struck Donald Walker on the head. In the course of doing so he struck Sesin on both arms.[161] One of Carter's blows broke a rib of Donald Walker. It knocked the wind out of Donald Walker. He collapsed to the ground with Sesin who initially still held him in a headlock. He continued to try to get to his mother. Carter continued to hit him with his baton and, at one point, dropped onto Walker's back, landing on his knee, causing the other rib to fracture. Before other police arrived, Donald Walker felt a number of knocks to his head and a number of hits to various parts of his body.
3. Carter and Sesin, with a knee each in his back and with Sesin holding his hair, pinned him to the ground, where he was handcuffed. Police arrived just before, and as, Carter and Sesin were handcuffing Donald Walker.
4. I am also satisfied that after he was handcuffed, one of Carter or Sesin[162] stamped on Donald Walker's right elbow, causing the bruising and marks that appeared on it. It is unlikely that this occurred before the handcuffing, because the arm needed to be stationary and the elbow against a hard surface. The marks on the wrist associated with the handcuffs were probably caused by being fixed too tightly and by Donald Walker bringing his arms from behind his back to the front of his back so he could urinate.

1. The attacks on her son were too much for Mrs Walker and she tried to restrain Carter from yet another blow with his baton and, at the same time, hit him over the head with her walking stick. Carter responded by trying to remove the walking stick and smashing it with his baton. He also pushed Mrs Walker to the ground, resulting in her dislocating her shoulder. I have come to the conclusion that Mrs Walker was pushed and not punched, in part from the evidence that was admitted without objection about her account to the hospital as shown in the hospital records and also from the statements made by Carter shortly after the events to Pluim and Rodgers.

12.5 (G) EVIDENCE OF DONALD WALKER NOT ACCEPTED

1. I have come to the conclusion that some of Donald Walker's evidence about the central incident should not be relied upon. I refer to his evidence that he was beaten while handcuffed and that it was after he was handcuffed, that Marcia Walker fell and, did so, as a result of being struck by Carter on the shoulder. I am concerned about at least two matters. The first is that as the beating went on, including blows to his head, his consciousness became an issue and he lost his glasses. In addition, the subsequent conversations with his mother may have been incorporated into and affected his memory. His account of what he observed is consistent with Carter, while holding onto his baton, giving Mrs Walker a vigorous push and not a punch. With his consciousness then compromised, he may well now be mistaken about what occurred and its precise sequence.

1. In light of the above findings, there was no breach of the peace by Donald Walker. There was no proper basis to exercise the power to arrest him. Carter and Sesin did not act in self-defence of Sesin. In any event, they used excessive force against Donald Walker. There was no lawful justification for the blows to Donald Walker struck by Carter and Sesin. Carter and Sesin totally mishandled the situation and, once Walker was held on the ground, he posed no threat to the police officers or anybody else. He was, at all relevant times, simply wanting to go to his mother's aid. Carter acknowledged that and was aware of that fact. I am satisfied that Sesin would also have been aware of that fact.
2. The actions of Marcia Walker were taken in an attempt to defend her son, Donald Walker, from the unjustified beating that he was receiving, in particular, from Carter. It was Carter she struck, not Sesin. There was no breach of the peace or right to self-defence that might have justified Carter's actions against Mrs Walker.
   • 13.2 THE REASONS FOR THE ACTIONS OF CARTER AND SESIN
3. Carter maintained that the events of that night were so grossly violent, so heavy that they were seared into his memory. Carter described it as "very scary". Sesin described himself as being scared.
4. I accept they were very scared from the outset and that there was gross, heavy violence. But the violence came from Carter, in particular and, for Sesin, that would have been frightening. For Carter, it is also possible that he found his own conduct frightening. The violence did not come from Donald Walker.
5. Precisely and why Carter and Sesin came to act as they did may be relevant to the issue of aggravated damages and exemplary damages. Making findings on that issue is made more difficult, because we do not have the benefit of an honest and accurate account of the events from Carter and Sesin. I note, however, the following matters.

1. Sesin was the more senior officer, but it is unclear whether one occupied a position of authority over the other. Both Carter and Sesin were young and inexperienced and from the outset they were scared and highly anxious about dealing with a domestic situation.
2. Carter, in particular, was highly agitated throughout. His focus at all times was on complete physical control of the situation. It was Carter who initiated physical action from time to time and did so without consulting Sesin, and in a manner likely to raise tensions.

13.2 (B) THE SEQUENCE OF EVENTS - CARTER'S ROLE

1. I refer to my earlier findings. I here focus on those findings as they relate to Carter's actions and role.
2. At the front door, after the initial knock and the announcement of their identity, in the absence of an immediate response and the absence of evidence of immediate need for action, Carter, without discussion with Sesin, kicked the door in causing a picture to fall. He entered the apartment where he was met by Donald Walker with arms outstretched and asking questions. Ms Hamm was some distance away. Instead of attempting to calm the situation down, his response was to grab Donald Walker and push him against the wall and hold him there. Matters then calmed down[163] with Sesin speaking to Ms Hamm and setting in train the retrieval of her bag. Sesin after talking with Ms Hamm swapped with Carter, thus removing him from immediate contact with Donald Walker.
3. Carter and Sesin's immediate concerns should have been substantially resolved with the recovery of the bag, but there was still another bag to be found and it was likely that Donald Walker would have been angry about the entry of the police and the damage they had done to the door and picture. He would also have been angry with Ms Hamm. It was likely that he would not have concealed his anger. I am satisfied that Carter and Sesin remained highly anxious and Carter's priority would still have been total physical control of the situation.
4. With the arrival of Marcia Walker, it was Carter again who took the initiative. Notwithstanding, that Ms Hamm had gone outside the apartment, he took physical action to move Marcia Walker out as well. In doing so, he ignored her obvious frail condition and, in the course of trying to move her out, shone his torch in her eyes - another act of aggression on his part. His actions caused her to fall over the couch.
5. As to the central event, Carter and Sesin knew that Donald Walker was moving towards his mother to help her and that there was no justification for Sesin's headlock. But Sesin had restrained him in the headlock and Carter could have applied his training and grabbed Donald Walker's flailing left hand and turned it into a full Nelson as they had apparently been taught to do. Instead, he escalated the level of violence by hitting Donald Walker with his baton a number of times as hard as he could, including to the head, struck Sesin twice and, later, dropped with his knee into Donald Walker's back fracturing a rib. Carter was in a violent state. While in that state, he dealt violently with Marcia Walker.

1. Making findings on the issues of how and why Carter and Sesin came to act as they did is also made difficult because the parties have not had the opportunity to make submissions in light of the findings that I have made, findings which result in some different conclusions to those advanced by the plaintiffs and totally different conclusions to those advanced for the defendants.
2. I propose to give the parties the opportunity to make further submissions
   • about the evidence confined to the question of whether and, if so, what further findings should be made about the central event relevant to the claim for such damages; and
   • about the claim itself, in light of the findings made and further findings sought.
3. I suggest that issues of relevance may include:

(i) whether anything further can be identified as to the reasons why Carter and Sesin acted as they did;

(ii) what is the relevance, if any, of his evidence in re-examination that if the same situation arose there was "absolutely nothing" he would do differently;

(iii) what is the relevance, if any, of the conduct immediately following and subsequent to the central incident of

• Carter and Sesin and other police
• other government bodies involved in the various investigations
• the State of Victoria.

1. I note the discussion of the relevant legal principles relating to aggravated and exemplary damages in the recent decision of the Court of Appeal in Giller v Procopets [2008] VSCA 236.[164]
2. I turn to the damages issues.

1. It is proposed to address the damages issues raised by taking, in sequence, the claims for general damages of Donald Walker, Marcus Walker and the late Marcia Walker. In each instance the pleadings of the parties will be considered. The positions of the parties will be summarised. The relevant evidence will be considered, and conclusions reached, about the nature and extent of the injuries received and the history of their physical and psychological consequences. Consideration will then be given in each instance to the assessment of general damages.
2. Following that analysis, the claims for economic loss will be considered, commencing with the claims for lost opportunities made by Donald and Marcus Walker in respect of their joint business ventures, such as the Dance Party. Consideration then will be given to their individual economic loss claims based on alleged damage to earning capacity.
3. Finally, the future handling of the claims for aggravated and exemplary damages will be discussed.

SECTION 15 GENERAL DAMAGES CLAIM - DONALD WALKER

1. Donald Walker seeks general damages for physical and psychological injuries that he alleges he suffered as a result of the assault and battery. He also seeks damages for consequential economic loss. The particulars of injuries as pleaded are as follows:
   • Severe injury to cervical spine causing aggravation and degeneration resulting in chronic and debilitating neck and arm pain which impairs his ability to drive a motor car and engage in a variety of normal activity;
   • severe headache;
   • severe and chronic psychological reaction;
   • dizziness;
   • stress and anxiety;
   • stress induced abscesses;
   • insomnia;
   • depression;
   • impaired memory and concentration;
   • concussion;
   • injury to both arms;
   • fracture of the ribs;
   • blurred vision;
   • injury to the back and thoracic spine;
   • severe general bruising and abrasions;
   • severe shock;
   • impairment of speech;
   • disorientation.
2. I turn to the submissions of the parties relevant to general damages and then will consider the evidence, lay and expert, about the impact of those injuries and their causes.
   • 15.2 PLAINTIFF'S SUBMISSIONS
3. Counsel submitted that as a young man, Donald Walker had been actively involved in a wide range of sporting interests and had been a worker from his earliest days. Counsel referred to him working as a young teenager, and later, in bakeries, the apple industry (sorting and driving tractors) and catching and selling rabbits. After national service he continued with the CMF and officer training. When he decided to move into the insurance industry he did brilliantly achieving significant sales in Tasmania and then establishing himself within a very short time as a significant agent in Victoria. Counsel submitted that this could only have been achieved with very long hours. It was put that he was and has remained, as much as he can, a significant worker.
4. Counsel submitted that the medical evidence from Dr Thomas, Dr Spencer, Professor Chambers and Dr Lim fully corroborated Donald Walker's evidence about his injuries.
5. Counsel submitted that Donald Walker went into a severe decline after the incident and became a recluse for a period of time. In particular, he lost all interest in and ceased to socialise with women for some years. He changed the way he conducted his business and had significant periods when he was unable to work because of his significant physical injuries.
6. Counsel for the plaintiff referred to the supporting medical evidence in some detail. Among the details he referred to were the injuries identified by Dr Thomas when he treated Donald Walker on 17 August 1993; to which reference has already been made. Donald Walker thought he had been concussed and complained of blurred vision and a headache. Counsel pointed out that his brother Marcus gave similar evidence. There was also abdominal tenderness and reduced movement in both shoulders. Counsel noted that Dr Thomas organised an x-ray of the skull. He was referred to a neurologist, Dr Chambers and had a CT head scan. Counsel also relied on the evidence of Dr Chambers of a diagnosis of a whiplash type injury caused either by being hit, for example by batons, or being wrestled..
7. Counsel referred to the evidence of Dr Spencer, Donald Walker's treating doctor since 1975, who, on 19 August 1993, saw all the injuries shown in the photographs other than the foot injuries. Donald Walker was then complaining of rib pain. Counsel noted that Dr Spencer described the bruising as severe. Counsel referred to the evidence about medication, initially sleeping tablets and Panadeine Forte. Counsel submitted that by June 1996, Dr Spencer had Donald Walker on Endep, an antidepressant.
8. Counsel submitted that ultimately surgery was required on his neck in January 2000**.** What had occurred was an aggravation of the degenerative condition of the cervical spine**.** The surgery did not relieve his symptoms. The symptoms in fact worsened and he was diagnosed by Dr Chambers and Dr Lim as suffering from myofascial pain syndrome**.**
9. Counsel submitted, on the evidence of Dr Spencer, that Donald Walker's condition, both emotional and physical, plateaued by 2004**.** Adopting Dr Spencer's evidence, counsel submitted that Donald Walker had been severely altered by the events and his whole life seemed to be subsumed in the events. He seemed incapable of getting his life back on any track. He was depressed, anxious, wasn't functioning and was failing in many aspects of his life. Counsel submitted that by this stage he was on Kapanol which is a narcotic. Counsel submitted that Donald Walker still suffers from the condition and is on significant medication. Prognosis was for ongoing pain, neck stiffness, probably anxiety and depression. Dr Spencer expressed the view that he needed as much of the painkillers as he could get to control the pain. Counsel also relied on Professor Chambers' pessimism on the prospects of any improvement and Dr Lim's opinion that the prospects of recovery were not good.
10. Counsel also submitted that the medication was one of the other reasons why his capacity for work has been adversely affected, for he is particularly tired on a regular basis and also has to deal with the constipating effects of the medication requiring "manual evacuation" on some occasions and admissions to hospital on others. Counsel submitted that he suffers from ongoing weakness and pain in his arms and neck and that ongoing pain from his failed neck operation is significant**.**
11. Counsel for Donald Walker gave less direct emphasis to the psychological injuries aspect of the claim. Extensive reference, however, was made to, and reliance placed on, the evidence of experts called to support the diagnosis of chronic post-traumatic stress syndrome and depression. Counsel did not appear to dispute the evidence of experts called for Donald Walker that the psychological consequences of the events had operated as factors increasing the intensity of his experience of the symptoms, but that there was no evidence to suggest he was exaggerating his symptoms. Counsel referred in particular to Dr Cole's opinion that there was

"No evidence that he was exaggerating any of the symptoms physical or mental at either a conscious or unconscious level"

1. Counsel referred to expert testimony that there might be some improvement in Donald Walker's condition with the end to litigation. ounsel for Donald Walker submitted that general damages of the order of $200,000-$300,000 would be commonly awarded for people of his age with his disorder, a failed neck operation result and with grim prospects.
   • 15.3 DEFENCE SUBMISSIONS
2. Generally, the defendants sought to challenge the seriousness of the injuries suffered and their subsequent history and their impact on his life.[165] A range of $30-$40,000 for general damages was suggested by counsel for Carter. Counsel for the second defendant nominated $50,000.
3. As to the injuries suffered, counsel for Carter submitted that while the incident itself produced pain and shock and a degree of humiliation, his present injuries are relatively modest. Carter does not admit that Donald Walker suffered the injuries he alleges, or any other loss, as a result of the assaults and batteries.
4. In addition to relying on the submissions made for Carter, counsel for the second defendant challenged particular parts of the case advanced for Donald Walker.
5. Some of the injuries and their causes of which he gave evidence were directly challenged. In particular, defence counsel alleged that:
   • Donald Walker lied about being struck with a baton to the base of skull and neck or head;
   • Donald Walker lied about losing consciousness and suffering amnesia;
   • an assault that occurred on 6 May 1992 involving a man named Maxwell, caused or contributed to relevant injuries, notably concussion and the degenerative condition of the cervical spine.[166]

For reasons given in Appendix C (Attacks on the credibility of Donald Walker), the above listed challenges do not succeed.

1. Counsel for Carter also attempted to cast doubt on the myofascial pain syndrome diagnosis on the basis that it is controversial. The controversy, however, identified in the evidence of Dr Lim, relates to the mechanism involved in the trigger points, not to the explanation of the persistence of pain after the physical causes have gone because of sensitisation of the spinal cord. In making these challenges, the defendants chose not to lead evidence from other experts to challenge the evidence given by the medical experts on behalf of Donald Walker.[167] When it was put to counsel for the first defendant that the defendants had not called any neurological or orthopaedic specialists, Counsel said that they were "happy" with the evidence given by Dr Lim about the controversies and the evidence of Professor Chambers**.** The evidence of Dr Lim and Professor Chambers should be accepted on this aspect.
2. Counsel for Carter also alleged a limited ongoing impact on Donald Walker's life - an inability to fish or play golf or tennis . Counsel also referred to his contention that his life had been severely disrupted by his "symptoms" which counsel described as "anxiety, depression, sleep dysfunction and left arm pain." Counsel argued that Donald Walker's evidence should be rejected about the ongoing effect of the incident. In support of their argument counsel raised a number of matters:
   • Whether Donald Walker had lied about his social life ceasing for 5-6 years. Counsel referred to McRae's evidence of Donald Walker hosting parties on a commercial basis after the incident - he attending on 10-15 occasions, allegedly inconsistent with Donald Walker's evidence;[168]
   • Whether Donald Walker had lied that he had been unable to travel overseas**.**[169]
   • Whether Donald Walker had lied to Donaldson about National Mutual forestalling his initiatives.
   • Whether Donald Walker had misrepresented insurance sales to Michael.
   • Whether Donald Walker's behaviour in Court which, it was alleged, had shown that he had not lost his capacity for movement or ability to reason in a demanding environment.
3. For reasons outlined in Appendix C, these claims, too, should be rejected.
4. The principal issues raised by defence counsel that remain and which require detailed consideration relate to the gravity of the impact of the injuries and their consequences.
   • The allegation that it is likely that Donald Walker's condition will improve when the litigation is concluded. Reliance was placed on the lay evidence of McRae that a lot of Donald Walker's "current behaviour" related to the stress of the case and Williams' evidence that he was more obsessive than his brother about the case**.** Counsel also referred to the early comment by Dr Chambers, in his letter to Dr Thomas, dated 3 December 1993, which referred to "some degree of psychological exaggeration", and argued that Donald Walker's present injuries are predominantly psychological or functional. It was argued that many of his complaints have the capacity to resolve following the conclusion of the proceedings. In support of this position, counsel referred to the evidence of Mr Crewdson that Donald Walker had reported to him that by May 2005 the level of pain had been reduced by half, and there had been further improvement mentioned by him by April 2007, in spite of the proximity of the trial. Accepting those reports, it must be borne in mind that Donald Walker was talking about the level of pain experienced at a time when he was taking substantial dosages of morphine. These issues are discussed below. The expert evidence does not support the defence position
   • The allegation that Donald Walker had not lost his capacity to earn income. Counsel submitted that Donald Walker's income history showed that notwithstanding his physical complaints and the diagnosis of myofascial pain syndrome, he was able to perform at a high level. Counsel argued that his present employee, Sheehan, described a picture of a normal personality simply reacting to the stress of running a business and prosecuting the action**.** It was put that Mr De Cesare's evidence to the contrary should be rejected. These issues are discussed below in the consideration of the evidence of De Cesare and Sheehan, as well as in Appendix C. For reasons there given, the evidence of De Cesare and Sheehan should be accepted.
5. These issues will be discussed below. Before doing so however, it is necessary to form a view about the nature and extent of the injuries Donald Walker suffered, their progress and their impact upon him.
   • 15.4 EXAMINATION OF EVIDENCE

1. Donald Walker's evidence and that of the lay witnesses on these matters should be accepted.
   • His evidence about his physical injuries is supported by the expert witnesses called on his behalf. The defence failed to call any expert evidence to challenge this evidence. There was evidence of an examination by one such expert on behalf of the defence. He was not called and no explanation for that failure was offered.
   • His evidence about the psychological consequences was also supported by expert evidence called on his behalf. That included the evidence of Dr Cole, the expert engaged by the defence and called by Donald Walker, and again the defence failed to call any expert evidence to challenge this evidence and offered no explanation.
2. To assess the gravity of the injuries, their consequences and the damages claim, however, it is necessary to consider the evidence in detail and make findings. I propose to address first the evidence about Donald Walker's state of health and lifestyle before and after the incident. After considering lay evidence on those matters, I will consider the expert evidence about the injuries and their consequences. It is necessary to follow this course to gain a complete and accurate understanding of both. For the sake of clarity, however, some of the more detailed arguments are contained within Appendices, as referred to below.

15.4 (B) LAY EVIDENCE - PRE-INCIDENT HEALTH AND LIFESTYLE OF DONALD WALKER; FINDINGS

1. I have already given a description of aspects of Donald Walker's life before the incident. That description is expanded upon below focussing more on matters relevant to the damages issues.

1. From an early age, Donald Walker appeared to be hard working and active. For example, at around the age of 13 or 14 he worked in a bakehouse greasing pans and emptying loaves and that sort of thing, during school holidays. He also worked in the apple industry from about the age of 14 or 15 onwards packing apples, driving tractors and emptying bins into hoppers for sorting. From an early age he also used to catch rabbits and sell them for pocket money. He did not play sport in school teams but played lunchtime soccer and other sports to keep fit. After he left school he joined a local golf club and tennis club. Fishing, however, was his main sport. He also did a lot of sailing and rowing. In his mid-20s, he had become a part owner of a rainbow class dinghy which was raced in Hobart. He became part owner of a larger boat with an accountant in Hobart. At the time he left he was a member of the Royal Yacht Club in Hobart.

1. Donald Walker's first employment was at the ANZ Bank in Hobart shortly after leaving school. While he was there, he won the National Service "Lottery" at the age of 20 and left the bank to be trained on the mainland as an infantry soldier. In the army he remained at the rank of private. He was about to go to Queensland for jungle training in 1972 when the Whitlam Government was elected. He was given the option to remain in the service for another six months and he chose to do that, such service entitling him to a war service home loan. He was at the time a private and was rostered during that period to attend to the sergeants' and officers' mess. On discharge he returned to Hobart and went back to the bank and was sent to be the sole officer in a small branch office at the Casino. He also joined the CMF where he was selected for cadet training. He persisted with that for 14 to 15 months. Completing his training required another six months work and he had moved into the insurance industry as an agent of the National Mutual and his work commitments conflicted with the training. As a result he left the CMF. At that time there were about 120 agents in Tasmania.
2. He became an insurance agent in March 1974. He remained in Tasmania for about 2½ years. He left Tasmania because he was running about third in that State in the writing up of insurance business, the market of prospects was finite, and he thought there would be wider scope in a larger scene. He thought Melbourne offered better business prospects. His recollection was that he came to Melbourne in about August 1978. In leaving Tasmania he had to relinquish all his clients there and they were distributed amongst the other agents in Tasmania. He relinquished all secondary commissions and any other entitlements related to them.
3. When he came to Victoria, he remained with National Mutual, joining the Doncaster division. He continued there for several years and then moved to Hawthorn.

1. When Donald Walker came to Melbourne he did not join any sporting clubs but he did have the occasional game of tennis and golf at Wattle Park playing the latter once every three or four weeks in the period of two or three years before 1993. He also played tennis probably once every couple of months. Whenever he went back to Tasmania he did quite a bit of fishing. He fished in Tasmania in the two or three years before August 1993. He did not fish in Victoria. He did not continue his sailing in Victoria prior to the incident.
2. Messrs McRae, De Cesare and Williams also touched on a number of aspects in their evidence.
   • Mr McRae ("McRae") came to know Donald Walker in late 1984 or early 1985. They met socially at the Fawkner Club Hotel. They became good friends and he used to see Donald Walker two or three times a week and sometimes four times a week.
   • Mr De Cesare ("De Cesare") became a friend of Donald Walker in the late 1980's and still is a friend. He used to see him every couple of weeks to a month and spoke to him by phone probably once a week.
   • Mr Williams ("Williams") has known Donald Walker since about 1983. They first met on a social occasion at the Tok H Hotel. They were not in contact at the time of the incident. He said that in the early 1990s he went overseas for a period from approximately 1990 until about 1995. Prior to that, he used to see Donald Walker a couple of times a week, probably, depending on commitments. They would meet and have a meal or go to a club or to his own place or Donald Walker's home in Surrey Hills.

I accept their evidence and that of Donald Walker[170] on the following topics:

• Physical health - Donald Walker said that before the police came through the door his health was perfect. He had experienced very little in the way of colds and flu and stomach upsets. He did not usually have any aches and pains in his body. He was not taking medication on a regular or irregular basis**.**

Williams said he was aware that Donald Walker worked long hours and he knew that he often had insurance meetings at night. He said he was passionate about his work. Williams said that Donald Walker had very high energy levels prior to 1989/1990.

• Psychological health - Donald Walker said that prior to the incident he did not have any elevated anxiety levels. Prior to the incident he believed his libido was perfectly normal. He had no difficultly with sexual performance before August 1993. Donald Walker also gave evidence that he could not recall an occasion prior to the incident when he was troubled by depression or stress. He said he had not been concerned about his physical safety before August 1993. Donald Walker said that before the incident in 1993 any dreams he had were normal ones. Prior to August 1993 his sleeping average was about seven hours at night and he had never taken sleeping tablets.

1. I note that McRae said that prior to the incident, he very rarely saw him sleep unless he was tired. McRae said that Donald Walker was not a nervous type of person. De Cesare said that prior to the incident he had never known Donald (or Marcus) to have any fear of someone trying to kill them or injure them or any like conspiracy theories.

1. Donald Walker said that his social life prior to 1993 was very active. He used to entertain friends once or twice a week at his home for food and drinks. He used to do quite a bit of cooking. He would go out to parties as well. He said that at his home most times they used the music room.
2. Prior to the incident he had developed an interest in the dance party scene and prior to March 1991 he had created a music room in his home. He said he did not particularly want to go to night clubs and such places so he developed his own situation. He had soundproofed the majority of the house. He installed a bar in the music room and sophisticated sound equipment and lighting. He hired out his home for parties.
3. He said he would be a guest at someone else's home, probably once every three weeks or so. His work also involved social activities. His sales manager used to come around on occasions as did work colleagues. Work social occasions occurred maybe once a month. He said he didn't go to the theatre or cinema but used to watch videos and documentaries and used to enjoy them.
4. McRae said that prior to the incident Donald Walker made friends easily and communicated easily with women. He said Donald Walker liked the opposite sex but was not a womaniser. He got on very well with his, McRae's, wife before the incident. He did not think Donald Walker was the sort of person who got into arguments with others. He said he was very polite around people and treated people with a lot of respect. He said he was not the sort of person with whom people would get angry that often.
5. De Cesare described him as outgoing, gregarious, fun loving and hard working. He attached a lot of weight to friendships. He was a gentleman with the opposite sex. De Cesare had attended parties at Essex Road. He described Donald Walker as a fabulous host. He said that he had never had an argument with him and could not recall any harsh words being exchanged between them. In cross-examination he said Donald Walker, in his view, was a man without fault.
6. Williams said he was a very cheerful sort of person and would not have associated with him if he had not been. He had a very good sense of humour and always would have a joke to tell. He said his interaction with people depended on the circumstances - he dealt professionally with business people, with women he showed respect and generally he conducted himself very well. He was very much liked.

1. Prior to the incident Donald Walker said that he had had no problems with pressure. He worked very hard and could usually handle anything like that. The dance party gave rise to a lot of pressure but they handled that very well.
2. McRae said that at the time of the Dance Party, Donald Walker had coped with its stress very well. Apparently a source of stress in their relationship arose from the fact that McRae had lent Donald Walker and Marcus Walker $34,000 to help fund the Melbourne Dance Party. It took some time for Donald Walker to pay him back and there was a lot of stress on him because it wasn't his money, it was overdraft money and he was paying interest on it. Several people told him he had been imprudent in lending the money, including his wife. Donald Walker told him that all creditors would be paid and he believed him because Donald Walker was as good as his word. He believed they were all paid.

1. Before August 1993 Donald Walker was a smoker. He said he picked this up while he was in the army. He was a 20 cigarette a day smoker at the time of the incident. McRae described him as smoking regularly but not heavily.

1. Prior to the incident he had no trouble maintaining his own household and operating his computer. Williams said he had a clean and tidy home at Surrey Hills. It was very organised.
2. De Cesare, who was then a chef, described Donald Walker as a very keen cook and said that he had a well stocked and well appointed kitchen. He kept the kitchen clean and well organised.

1. Donald Walker said that prior to August 1993 he used to do a lot of driving in relation to his work seeing potential clients in regional Victoria in places like Ballarat, Bendigo and Geelong. On one occasion he drove as far as Robinvale.

15.4 (C) LAY EVIDENCE - IMMEDIATE IMPACT OF THE INCIDENT

1. Donald Walker said that when he saw what had happened to his mother, his reaction was one of horror but there was nothing he could do to try to help her. He said when he was taken from the house there was pain and discomfort in many parts of his body and he was going in and out of consciousness. He could only remember certain parts about going down the driveway. He could remember coming out the front door but not anything else until being put into the police van. He was in intense pain. His rib area was more painful than other areas. He felt concussed, numb and shocked. He said he was devastated emotionally. He did not know the reason why the whole thing had occurred. He felt he was innocent and was totally bewildered.
2. Subsequently, when he got home he said that he was a shaking mess. He was suffering intense pain all over his body, particularly where the ribs were broken. His back was in extreme pain where the officer had dropped from a height onto it. His wrists were extremely sore. He had an extremely sore neck. He was in a lot of pain in his kidneys, elbows, his whole body.
3. He said he first became aware of headaches during the following day - a dull ache internally. He first recalled getting symptoms down his left arm shortly after the incident - a few days after. He said he had pain going down his left arm and pain in his neck.
4. He said that he did not go to a doctor for two or three days after the event because he was just in complete shock. He said he had been told by other people that he was just staring at the floor.

1. Marcus Walker said that the photos of Donald Walker's body were taken on 15 August 1993 when he returned home. He said that he and his brother and mother were all in a terrible state. He said that Donald Walker was so shocked and hurt that he was incapable of any "proper talk". He was repeating a lot of words, his speech was continually very hesitant. He had not seen that before. He did not recall Donald Walker telling him anything about any injury to any part of the body. He relied on what he saw in taking the photograph.

1. Turning to the evidence of De Cesare, Williams and McRae, McRae was the only one living in Melbourne at the time of the incident. He first saw him the next day or the day after the incident. He observed the bruising and the marks on the wrists. Donald Walker complained about pain and headaches. He appeared to be in pain and McRae thought his speech was slightly slurred. He was visibly shaken and not the person McRae had seen only a few days earlier. He said that, from his observations, Donald Walker was shocked that the incident had happened. Either on the day he saw him, or a little later, Donald Walker told McRae he was in fear of his life. In the months following the incident, he used to say that quite often. He could not believe that it had happened. There was an air of disbelief that it had all come about.

15.4 (D) LAY EVIDENCE - LONG TERM EFFECTS OF THE INCIDENT

1. I accept the evidence of Donald Walker and the other witnesses called on his behalf on these matters. In summary, the effects have been wide ranging and severe. Since the incident Donald Walker has experienced extreme fear, anxiety and depression, extreme pain, nightmares and sleeping difficulties. His personality and temperament have changed significantly for the worse. He has been significantly adversely affected physically, psychologically and sexually. His social and sexual life, which he had enjoyed, have been severely curtailed, as have other activities that gave him pleasure in the past such as tennis, golf and fishing.

Psychological consequences - fear, anxiety and depression

1. Donald Walker gave evidence that as a result of the incident, he became concerned about his physical safety. He said his fears commenced immediately after the events and worsened about three days later, when a witness came forward and volunteered information to him. He said he acquired mace for his own personal protection. He said that for four years after the event he could not sleep in a bed. He slept on a couch in the lounge room so that if his door was broken in again he would have a slightly better chance of defending himself than if he had been in a bedroom within a relatively confined space. He kept thinking about why the events had occurred, whether they were likely to occur again, and what he could do to safeguard himself, his brother and his mother. He investigated obtaining a bullet-proof vest because he thought his life was in extreme danger at that time. He also investigated getting bullet-proof glass for his car. He said that he left his house in Surrey Hills about four years later and went into a motel. He said he subsequently had to find a place where he had total security.
2. Donald Walker gave evidence that what occurred to his mother had a devastating effect on him. It meant they couldn't enjoy the remaining years of her life. It was completely blighted by the events and their aftermath.
3. Donald Walker gave evidence that since the incident he has had a lot of anxiety and periods of depression. He had been given drugs to deal with psychological problems. They were intended to cut down on stress and anxiety and address depression. By depression he meant the situation where you go over and over events in your mind - like would it be likely to occur again to him and his family? He said he often had such thoughts. He said that, at present, he was also taking a quarter of a tablet prescribed for his brother Marcus called "Karma" - a relaxant, an anti-anxiety tablet.
4. The evidence of Donald Walker's friends supports his testimony. For instance, De Cesare first saw Donald Walker about 12 months after the incident.[171] He found a man who was a nervous wreck. He was smoking excessively. He had lost the full use of his arm, he was tired and scared, paranoid and sleeping on the couch in the lounge room**.** Donald Walker spoke to him about his fear of another home invasion or someone being out there to get him. He thought there was a conspiracy to kill him. He felt he and his family were threatened**.** He expressed concerns for his mother and his brother. The people he knew he told to be careful. He told De Cesare to be careful and not to talk to people about the Walkers. On one occasion Donald Walker discussed a brochure about bullet-proof vests. He said Donald Walker surrounded himself with close friends who would be there rock solid for him. He said that he would not go out except in a group.
5. After Donald Walker sold his home in Surrey Hills, De Cesare lost contact with him for three or four years. Because of Donald Walker's fear and resulting need for security, De Cesare had great difficulty tracking him down. He eventually spoke to a mutual friend who declined to tell him where Donald Walker was because he had promised not to pass his address on to anybody including Donald Walker's friends. As a result of that conversation, however, but not until six months later, Donald Walker contacted De Cesare and they resumed their friendship.
6. Donald Walker's friend Williams came back to Victoria in about 1995. His son, aged six, had been diagnosed with leukaemia.[172] He said when he got back he re-established his contact with the Walker family. He said that Donald Walker was very compassionate during this period. He would talk to Donald Walker about his son's situation and he would listen sympathetically, but before long the conversation would turn to Donald Walker's own situation. He said that he was no longer cheerful and he no longer displayed a good sense of humour. He said that Donald Walker's life was consumed with the events that had happened.
7. Since 1995 Williams has generally been in touch with Donald Walker weekly. He said he visits him at his present home on a regular basis. He confirmed that Donald Walker did speak to him in great detail about what he saw as a conspiracy in which the police were involved. He said he had spoken about it regularly since 1995. He had shown him documents supporting his belief. He said he also subscribed to the conspiracy theory. He encouraged and assisted Donald Walker to move out of his home in Surrey Hills. The reason for moving was that he felt he was in danger. He moved for a period to Rockmans Regency which gave him security.

Psychological consequences - dreams and sleeping difficulties

1. Donald Walker said that since the incident, particularly in the following couple of years, he would wake up having had a dream and think there was someone in the room. He would be wet with perspiration. He said that occurred once every ten days or so. The themes of the nightmares he had were of being bashed. He said he was waking up all the time with it. He says nowadays he has a similar experience. He cannot remember the details but he often has dreams which are unpleasant. He said they are usually associated with violence. He usually wakes up and gets up.
2. He said since the incident he has generally had great difficulty sleeping at night- sometimes sleeping as little as two hours a night. He said for the first few months his sleep was very, very broken. He could remember getting some sleeping tablets but could not remember how long after the accident he first tried them. They did not really have much effect. He would still wake up. He said it was difficult to strike a balance because the more he had the more likely he was to wake up with a hangover and he wouldn't be able to work. He said he is lucky if he gets a few hours sleep.[173] As a result he is usually tired during the day when he is trying to work. He referred to a day where he had fallen asleep twice in court. He said he had taken his usual 50 grams of Kapanol but hadn't had much sleep the night before, only two or three hours. He said counsel sent him home early. He said by the time he got home he wasn't very steady on his feet and went to bed. He said he wasn't speaking or thinking very clearly the day before. He said the medication made him a bit drowsy and dull through the day. He finds Temaze the best sleeping tablet to take - others leave him with a hangover. He took one two nights before.
3. Donald Walker's friends support this testimony, referring to his acute need for sleep. Williams and McRae have observed him away from work. Williams, while noting that obviously he still has some energy levels to enable him to carry on in the insurance business, said he has seen him just suddenly fall asleep in a chair. He said he isn't very good company these days.
4. McRae's experience has been more dramatic. He said that Donald Walker had been to his house on many occasions since the incident. When he comes he will lie on the floor on the carpet and ask to be left alone while he goes to sleep. For some reason he sleeps usually with his arms crossed. He complains all the time that "he is not well". He will sit on the couch and fall asleep within minutes, for example, when watching a documentary on television. Donald Walker is very difficult to wake and, if woken, will fall asleep again within minutes. Often he asks Donald Walker what is the point of coming around and he complains about how he is not well and then ends up leaving. As a result his stays are usually for a short period of time. On some occasions Donald Walker has gone out into the office that McRae has set up in his garage. It is a dark space with no real windows and he takes a small mattress out there and a pillow and will fall asleep out there. He said he lets him sleep for an hour or so and then will wake him up and then he will go home. He said it was very erratic.
5. De Cesare worked for Donald Walker in 2005 and a few months in 2006. He has observed him trying to work. De Cesare observed that during the day Donald Walker's energy levels were very up and down. He recalled occasions where he was exhausted by an interview. Quite often he would have a nap in the afternoon. Sometimes he would go and lie down on the couch. Nine times out of ten he would need a solid sleep and would go and lie down in the bed.
6. Sheehan also confirms the problem. Sheehan commenced working for him in February 2006. He had worked in telemarketing. He said that Donald Walker was attempting to do telemarketing and he was engaged to do "cold calling". He was also given the job of going through all existing files and identifying people who believed in insurance who might be persuaded to upgrade their policy or move to another company and so generate income for him.
7. He said that most days he sees Donald Walker looking sleepy and he often knocked off in the middle of the days and had a sleep - on the lounge couch or on his own bed. Sheehan resigned at one point. He noted that when he returned after his resignation the files were where he had left them with no added notations and no further contacts - "it had come to a standstill".

Psychological consequences - major change of personality, temperament and moods

1. Donald Walker acknowledges that he is more short fused, more irritable. He said his emotions are more short fused and that he is not as relaxed in emotional situations as before the incident. His whole lifestyle has changed.
2. His friends and employee confirm similar changes in both a private and work context but plainly they are more severe than Donald Walker's evidence would suggsest. Their relationships have been put under considerable strain by his behaviour since the events.
3. Williams said that when they met again in 1995, he found that Donald Walker got angry very easily. It was very difficult to have a conversation with him, he was so argumentative and opinionated. He said prior to that he could have had a sensible discussion with him. Since 1995, conversations can descend into a shouting match.
4. McRae has continued to try to see Donald Walker after the incident but there were times when he chose not to do so. He said that Donald Walker is no longer a pleasure to be around. He said his wife tolerates him being there but it is not easy. She is not eager to see him. He said the problem has been Donald Walker's attitude. He has been angry and quick tempered and anything would set him off. Even if you said something nice you could not win and if it was not nice he would jump down the person's throat.
5. He said Donald Walker argues with him now over anything and all things. He is jumpy about everything and seems to talk about most things that come into his mind and he snaps at him constantly. He said that everything he says to Donald Walker, whether it is positive or negative, seems to adversely affect him and he did not go through many days where he did not have a verbal type of disagreement with him.
6. He said he does not bother to see him when he is like that, but it is so regular. He said that is why he tries to stay away from him most times. He said his personality had changed to the extent that he was thinking strongly of not having him as a friend and there were extended periods a few months long when he had nothing to do with him - probably two or three periods over a year. It was Donald Walker who initiated contact. Asked why he still continued to associate with him, he said because Donald Walker has a good heart basically. He based that opinion on how he was prior to the incident. He had been very good to him, had liked being around him and had been a very good friend. He said if ever he needed any type of help Donald Walker would offer. He had lent him his motor vehicles.
7. McRae said that Donald Walker has talked a lot about the case and has told him it is a stress financially and is affecting him emotionally. He believes that a lot of Donald Walker's problems are associated with the stress of the case .
8. De Cesare, Sheehan, and Parton have observed him at work. De Cesare said that he observed Donald Walker trying to do the telemarketing. He said he could not do it. He said that Donald Walker was intolerant of mistakes and very demanding and was short-fused. If things weren't right he would virtually explode sometimes. He said Donald Walker really was not capable of talking to people cold on the phone. He would become extremely frustrated and hang up. He was not able to put figures on it. He said that Donald Walker took his frustrations out on him. He left in September/October 2005 because he could not cope with his mood swings and his inability to cope with things. Around June 2006 he was asked to come back and he did so. The reason was that Donald Walker was not coping and he had to use cold calling because he could not make money by churning policies - that is moving clients from one insurer to another and so getting a fresh commission. He observed Donald Walker interacting with some clients when they came to his office. He said it was pretty swift, clinical and straightforward. He just wanted to get to do business and to get it over and done with.
9. Sheehan referred to the problem of extreme mood swings. Since joining Donald Walker in February 2006, he said that, sometimes, Donald Walker can be very pleasant and at other times he can swing in the other direction. He said because of his experience he is able to handle these variations. He said the mood swings are some of the most severe mood swings that you could ever encounter. He said he enjoyed selling but that he received a fair bit of abuse from Donald Walker because he is hot and cold**.** He said that every day is different. He said that he can walk in and Donald Walker will be quiet for the first few hours and then could flare or go off at a tangent.
10. Parton raised similar issues of variable moods and inappropriate behaviour. He was the Manager for the State of Victoria for PIS, commencing four years ago. He gave examples of complaints from clients and of having to deal with variable moods and aggression. Donald Walker sent aggressive emails and at times his hostility was open. His ability to absorb information varied and he did not take criticism well. Because of his uncertainty about how Donald Walker would behave or react, Parton said he was not prepared to let Donald Walker have contacts with Centres of Influence, the current source of significant income for agents like Donald Walker. He said Donald Walker had begged for that access. His expertise was good. He said that the reasons for not allowing him access were obvious - his psychological problems. The result was that out of 180 to 200 agents he has been one of only two who had not been trusted with access to the Centres of Influence.

Psychological consequences - drinking and smoking

1. After the incident, Donald Walker had a temporary problem with excessive drinking. This occurred after he moved out of his house, when he was contending with the issues of his mother's and brother's illness, as well as his own illness and the case. This continued for about six months at the height of all the pressure. He said everything was happening at once.
2. He has, however, had a long term problem with his smoking. Within a few months of the incident, it increased to 50 cigarettes per day. It has stayed at that level. He has tried to give it away and he did, on one occasion, for about three months. He said others have complained about this.
3. McRae and Sheehan confirmed this change in his smoking and the problems associated with it. McRae said that Donald Walker became a chain smoker. He explained that he smokes without any consideration for others - for example McRae and his family. Sheehan makes a similar complaint. He said that Donald Walker was one of the heaviest smokers he has seen in the sense of the drawback and he is also very messy. He said it would be lucky if there was half an hour between cigarettes when he is working there. He had had to take a stand to force him not to smoke in his working area. To do so he had terminated his services because of Donald Walker's smoking. He left Donald Walker for at least three weeks, but returned after they sorted out the issues.

1. De Cesare described Donald Walker's office as being in a complete shambles. He said that new files were stacked all over the place on the floor. If they wanted to find a file sometimes a search would have to be conducted and it could take thirty minutes to locate it. He said it was pathetic to see a grown man crawling around on the floor.
2. Sheehan confirmed that this problem has continued. The files can be spread between four to six different places and often he is searching for them and so is Donald Walker. He said he often had to go in to Donald Walker's office and search high and low, not necessarily daily, but frequently in a week. Other locations for files are in the living room and the dining room.
3. Williams also confirmed this situation, commenting that Donald Walker now lives in a very disorganised and untidy home**.**
4. Sheehan spoke of another issue - the disorganised way in which Donald Walker conducted himself. He would give him instructions requiring immediate action at inappropriate times such as when he was trying to make telephone calls. He said instructions were not delivered in the way you would expect from an organised businessman. There is no organised thought pattern - it swings from one point to another and off on a tangent. He said you have to be quick on your feet to pick up what he is talking about. The instructions are conveyed aggressively but he does not let that rattle him. Asked how he put up with it, he said he had done selling for so long he just lost himself in the objectives of selling. He enjoys that type of work. He says it is something that he can do well.

1. Donald Walker says that there is a lot of difference in his once active social life. He said he did not go to work social functions either. His evidence about the impact on his social life and travel was severely criticised. The detail of that evidence and the criticisms are considered below in Appendix C (Attacks on the credibility of Donald Walker). In the end, counsel for the defendants can point to evidence of some advocacy on the part of Donald Walker and of generalisations which required qualification, ones which he readily gave. Ultimately, however, it is clear that since the incident, has not had anything like the social life he previously enjoyed, and what social life he has had has been severely curtailed by the consequences of these events. His travel has been also, and while he has travelled more in recent years, it is very difficult for him.
2. Donald Walker said that prior to August 1993 he had a circle of female friends. For the first five years after the incident he would not go anywhere a lady at all. He said that that has continued to a lesser degree and he still feels the effect of August 1993 on that aspect of his life.
3. Since the incident, Donald Walker has not had any involvement in tennis or golf. He did try after the incident to fish on trips to Tasmania in 1994 and 1995 but found it too difficult. He used to enjoy the simple pleasure of watching videos. He cannot watch videos. He doesn't have the patience to watch a movie all the way through. The most he can watch is for about ten minutes and then he has to stop.

Physical Consequences - pain, headaches and effects of medication

1. While giving evidence, Donald Walker said that sitting in the witness box he was in pain and discomfort down his arms and shoulders. He said this pain first manifested itself after the incident. The symptoms in his left arm never disappeared and are still present today.
2. The operation he had in January 2000 did not improve the arm pain, but did give him slightly more neck movement. A few weeks after the operation, however, he suddenly noticed pain was going down his right arm, a very strong pain. Before the operation he was naturally right handed. He said he does not now get many internal dull aching headaches, he just gets stress related headaches which affect the whole of his brain. The treatment for myofascial pain was itself painful. His evidence was that the pain in him arms had been virtually the same since 2003.
3. I note that he was taking Kapanol at the time of the trial. He said he was taking a 50 milligram capsule of Kapanol and one quarter of a Karma tablet. He said the pain medication dulls his thinking[174] and restricts his daily activities. He said he has been on the present drug, Kapanol, which is a form of morphine, for about eight years.[175] The current dosage has been operative for the last two years. He said he had been prescribed one in the morning and one in the evening, but had tried to limit it to one a day so he could still function. He said if he takes two he gets very dizzy and just goes to sleep. He said with Kapanol you have a floating feeling the whole time. He said it is a fine balance between being able to function and controlling the pain and he still has to be able to function mentally.
4. The medication creates problems for him driving because he has difficulty staying awake. Another major problem with the medication is constipation. He takes drugs to minimise that problem but he has to "manually evacuate" his bowels once a week. He has also been hospitalised two or three times to deal with the problem. He said this problem started when he was on Panadeine Forte (about two a day), and continued after he began to take Kapanol. The change was made because Panadeine Forte was not alleviating the pain. While the Panadeine Forte had had a physical and mental impact, it was to a much lesser degree and he could control the effect of Panadeine Forte on his bowels by taking care of what he ate. He has had less success in controlling the effects of Kapanol.
5. Williams mentioned that he observed Donald Walker, while driving, in pain in the left shoulder, arm and neck. De Cesare has also said that in his home he is too tired, too sore and too injured to perform any housekeeping tasks.[176]

1. Donald Walker says that now it is not very good. He said he does not have sexual thoughts readily much now. He said he was still attracted to the opposite sex. He said it was quite difficult to obtain and maintain an erection and he found this extremely upsetting.

Physical consequences - inability to perform household chores

1. Donald Walker described how, after the incident, he had great trouble doing simple chores like vacuuming or straightening a doona, because he had to use his arms. He had trouble reaching anything in an upper cupboard. He could not hold his arms up for a while before having to drop them. Shopping and washing was also very difficult, as was carrying out the waste. Where he is living now, he puts waste down a chute. He lacks strength in his arms, which makes carrying things difficult. He also has difficulty doing things like opening cans and jars He has someone else to do jobs like cleaning recesses, toilets etc but he used to do those things for himself beforehand. He finds it very difficult to use a computer because of the angle of arm required. He has trouble using the mouse on his computer.
2. De Cesare has confirmed these difficulties. He has observed that he did not have the energy or physical fitness to look after his home. The kitchen has become a very messy one. He tried to help him a couple of times to rearrange and clean up the kitchen. It involved putting things away. Donald Walker could not put anything away that required him to reach up. The sheer effort of having to go and tidy the kitchen and clean and prepare meals was beyond him. He let cooking go by the wayside. He was just too tired, too sore and obviously injured. He would come home from shopping and about as much he would be able to do would be to get the groceries from the car to the unit and then put them on the bench. He would then be too tired and too sore to bend over to put things in lower cupboards or to reach up high.

1. Donald Walker says that to drive he now has to alternate the arms on the steering wheel. He has difficultly winding down windows and turning his head to the left to be able to see any blind spots. He has great trouble reversing because of the problem of turning his head. He drives now with a disability sticker. He gets a discount when he uses taxis. He says he tries to minimise the use of taxis.
2. De Cesare said that Donald Walker was often unable to drive. When Donald Walker was able to drive, he did. De Cesare said there were some appointments, however, where he, De Cesare, drove there all the way. In some instances driving home, De Cesare said he would do the driving because Donald Walker would have spent an hour or an hour and a half with a client and have been exhausted and would ask him to drive.
3. He said that Donald Walker could not turn his head to see the rear vision mirror or see the side mirrors and he had difficulty concentrating. The lack of concentration scared him a few times with near misses. He would offer to drive and Donald Walker would say "good, I can't". He noticed that when Donald Walker did try to drive, he would put two hands on the steering wheel but would take one off and flex his shoulder and neck. He appeared to obviously be in distress. Williams spoke of observing him trying to drive the car and steering and having seen him have great difficulty looking to the right.

1. The lay evidence paints a picture of considerable pain and a very serious deterioration in Donald Walker's psychological and physical health, his life and circumstances. But it provides only a partial understanding of the physical and psychological consequences of the incident. To gain a more complete understanding, it is necessary to consider the medical evidence.

15.4 (F) MEDICAL EVIDENCE - PROGRESS OF PHYSICAL AND PSYCHOLOGICAL HEALTH

1. I have referred above to some of the evidence given by the doctors who treated Donald Walker initially, namely Dr Spencer, Dr Thomas and Professor Chambers. That evidence covered the first few months after the incident. Their further evidence, and that of Dr Lim, in particular, charts the progress of his physical and psychological condition over the ensuing 14 years and significantly adds to that evidence. In summary, I note the following chronological account of the physical consequences of the incident:
   • 1993 - 1994: Physiotherapy and medical treatment for pain in the neck, back and arms; possible head injuries, marginal improvement only, then stabilisation;
   • 1995 -1996: Worsening of symptoms, X-Rays and later MRI examination of cervical spine; prescription of Endep, Normison and Panadeine Forte;
   • 1996 - 1999: Deterioration of symptoms, X-rays of cervical spine and further MRI examination;
   • 2000: Performance of surgery, but subsequent worsening of conditions and pain. Diagnosed with Myofascial pain syndrome, prescription of Aropax, desensitising rehabilitation treatment.

• 2001: No improvement; "consumed by pain". Rehabilitation program completed without benefit. Change of pain medication - Oxycontin, Neurontin and Kapanol.
  • 2002: No improvement. Medication by now comprising Kapanol, Endep, Duphalac and Colxyl.
  • 2004 - present: Myofascial pain syndrome diagnosed as continuing and persistent, alongside psychological pain. Pain medication, Kapanol being used, doctors expressing concern at Donald Walker's ability to function while using Kapanol.

Physiotherapy and medical treatment - marginal improvement then stabilisation (1993 - 1995)

1. Donald Walker received physiotherapy treatment from Mr Pritchard between 21 September 1993 and June 1994.[177] Mr Pritchard reported that Donald Walker was unable to return to work for 12 weeks following the assault. He noted posterior bi-lateral neck pain, global headache (except for face pain), dizziness and vertigo, blurred vision and gazing, slight lack of coordination and concentration difficulties together with temporal and spatial disorientation. On 24 September 1993 he noted that Donald Walker reported pain extending down the mid-lower thoracic spine region and injuries to his left upper arm with tingling and numbness down the arm to his hand and fingers - symptoms consistent with irritation to the lower cervical nerve roots. He recorded that on examination he found moderate limitation to active and passive range of movement of neck rotation and stiffness of the neck inflection/extension plane (all 50% of normal expected range). He also found moderate tenderness and stiffness on passive intervertebral movement and palpation in the cervical spine.[178] He found a moderate increase in adverse neural tension of the left upper limb when it was tested. He noted Donald Walker adopting postures and positions in an attempt to relieve discomfort - e.g. a hand placed on top of his head to try and unload the tension and sitting in that position.
2. He noted moderate improvement from 11 sessions of treatment.[179] When Mr Pritchard reported on 16 February 1994, he noted neck movement had improved to 75% of normal and the cervical pain had lessened in intensity and become intermittent to some extent but was a limiting factor to the normal functioning of the neck. The left arm pain continued and that, in fact, bothered him constantly. The upper to mid thoracic spine was stiff and tender. A similar picture was presented according to Professor Chambers when he saw Donald Walker in February 1994.
3. Dr Spencer saw Donald Walker on 9 March 1994. . He recorded that he was unwell and was stressed with multiple complaints of pain in the neck, back and especially down the left arm and limited neck movement.
4. Professor Chambers saw Donald Walker again on 12 July 1994 and subsequently over the next 12 months and recorded no significant improvement in his symptoms, even though he was undergoing regular physiotherapy. His symptoms were headaches, heavy headedness, intermittent pain and numbness down the left arm. Reporting on the situation on 12 July 1994, he described the neck problems and said they depended on muscle tension which in turn was connected to psychological stress and recorded the hope that things would improve when then "lengthy legal proceedings" were dealt with. He described Donald Walker as working at "half pace".
5. To conclude the survey of this period, I note the evidence of the psychological impact of the pain Donald Walker was experiencing.
6. In late October 1993 Dr Jane Nursey conducted a neuro-psychological assessment of Donald Walker. It revealed a mild to moderate reduction in psycho-motor speed and a mildly reduced verbal fluency but no other abnormalities and cognitive functioning. She concluded that he remained psychologically traumatised by the assault. She also was of the view that there was some degree of psychological exaggeration of his cognitive deficits because of the pre-occupation with pain. This was also the view of Professor Chambers who considered that cognitive problems were largely due to psychological issues and pre-occupation with somatic complaints such as headache and pain generally and dizziness. His view was that the problems were genuine. He thought there may have been some overemphasis of their severity. Professor Chambers was of the view that the problems were still continuing when he last saw him in 2002.

X-ray & MRI examination - worsening of conditions (1995 - 1996)

1. In 1995 things had not changed. Donald Walker was still experiencing headaches, neck pain, pain in the middle of the back and pain down the left arm and complained of a feeling of numbness in the head and the left arm. He had taken a break from physiotherapy but was doing exercises. There was moderate restriction of neck movement and the thoracolumbar spine. He was very stiff and tender on palpation of the neck and the upper dorsal spine in the region of the thoracic.
2. In May 1995, Professor Chambers arranged a series of x-rays of the cervical spine. He reported on 25 October 1995 that they revealed a progression in the degenerative changes compared to those taken in September 1993 and significant foraminal stenosis at C4/5 and C5/6 on the left and C5/6 on the right. They also revealed a new problem, namely, an involuntary reversal of the normal curvature. This pointed to muscle spasm and suggested underlying joint irritation common with whiplash-type back injuries. X-rays of the thoracic spine showed aged related degenerative changes. His opinion was that there was a connection between what he saw in the May 1995 x-rays and the injuries reported to him in September 1993. Donald Walker expressed dissatisfaction with his then physiotherapist and a new one was organised.
3. The problems continued into 1996 and on 26 February 1996 Professor Chambers organised an MRI examination of the cervical spine. It confirmed a degenerative disc disease with osteophytic narrowing of the right C4/5 and left C5/6 intervertebral foramina. He commented that the neck was becoming increasingly stiff. He also noted that Donald Walker was not having physiotherapy because of time constraints and expense. The pain and paresthesia down the left arm seemed to be a significant problem. He considered those symptoms were likely to be related to facet joint dysfunction. For some time Donald Walker had been prescribed Endep (an anti-depressant and pain reliever), Normison (for his insomnia) and Panadeine Forte for pain relief. According to Dr Spencer, on 13 June 1996 Donald Walker complained of symptoms of stress associated with the upcoming criminal court case and that he was wanting help to cut down his consumption of cigarettes from 50 per day.

1. By 22 September 1998 Donald Walker's condition had further worsened. At that time, he presented to Professor Chambers with a history of agonising pain down the left arm associated with a burning sensation affecting the whole hand. This had been continuing for some three months. He was getting a lot of headaches. He had stopped seeing the physiotherapist and was seeing a chiropractor, but there had been no improvement.
2. Further x-rays were taken of the cervical spine. There was also a repeat MRI examination on 27 October 1998. It revealed further deterioration, there being a marked osteophytic narrowing of the C6 neural exit foramina bi-laterally and of the right C5 nerve root foramen. Professor Chambers was of the view that the neck problem was slowly getting worse and it was likely that he was starting to get symptoms of nerve root compression affecting one of the nerve roots on the left side. He said the patient was complaining of symptoms which you would associate with nerve root compression but he could not see that occurring in the MRI scans.
3. In late November 1998, Professor Chambers referred Donald Walker to the Austin Hospital Neurosurgical Unit for opinion as to whether surgery was appropriate. His reasons for doing that were the pain was obviously a lot more severe, the progression in the MRI findings and Donald Walker was keen to obtain another opinion. In February 1999 he underwent a cervical spine myelogram and post-myelo-graphic CT. This showed impingement on the left C7 nerve root by osteophytes and slightly reduced filling of the left C6 nerve root sheath - supporting the conclusion that the pain in the left arm could be associated with the compression of the C7 nerve root and possibly the C6 nerve root. Donald Walker experienced the severe headache and neck pain that normally follows the myelogram. The first neurosurgeon consultant was reluctant to operate and Donald Walker sought a second opinion.
4. The second specialist was prepared to operate and, in January 2000, he underwent a C6/7 anterio-cervical decompression which involved removing the bony spurs that were narrowing the foramen and he had a Novus cage fusion.

Surgery and worsening of condition and pain (2000)

1. Unfortunately, post-operatively, he experienced pain radiating down both arms. In June 2000, when seen by Professor Chambers, he was complaining of pain down both arms with associated paresthesia and weakness of both hands and their reddening. His neck movements were limited and he had frequent headaches. He had pain in the middle back region. Professor Chambers reported from his examination that Donald Walker was stiff as a board and unable to relax his upper limbs. Passive movement, particularly of both shoulders was painful and restricted, as was his neck movement to the left. There was, however, no focal muscle wasting and proximal upper limb movements were full strength. There was possible slight weakness in both hands. There was no un-coordination. Reflexes were present, save for right sided biceps and radial jerks and brisk finger jerks indicating nerve-root compression. There was increased sensation in both hands. He arranged a post-operative MRI examination in June 2000. It demonstrated the fusion, normal alignment and no spinal cord compression. It showed, however, neuro-foramenal narrowing on the left at C2/3 and the right at C4/5. He regarded this as evidence of an on-going degenerative process identified in 1993. Professor Chambers, however, was of the view that the clinical findings didn't really correlate with the new findings and the extent of the pain syndrome had increased significantly. He came to the conclusion that the on-going problems, particularly the worsening of symptoms after surgery, were due to myofascial pain syndrome and, on 22 June 2000 referred him to Dr Lim, a spinal rehabilitation specialist with expertise in that area.

1. The identification of the condition, myofascial pain syndrome, arose 40 to 50 years ago. It has been established as a recognised organic condition in the last 15 years. There is some controversy over the mechanism of "trigger points"[180] but it is accepted that they exist in people suffering the condition of myofascial pain syndrome. The critical concept is "central sensitisation" which refers to sensitisation of the central nervous system pain pathway. Dr Lim explained that when a person suffers an injury that evokes pain, there is a central nervous system response to that injury. Changes occur in the back part of the spinal cord called the dorsal horn, as well as in the brain. If such changes become established they can become permanent and that explains on-going pain when there isn't necessarily any evidence of on-going injury. It is now understood that pain that is chronic or persistent has organic causes. Central sensitisation can amplify pain out of proportion, cause spontaneous increases of pain and recruitment of parts of the body not previously injured. People suffering from the condition can find that where the original injury has healed, pain can continue, spontaneously generated by the central nervous system as a result of the process of central sensitisation.
2. Dr Lim gave Donald Walker a thorough examination and came to the conclusion that he was suffering from myofascial pain. Dr Lim prescribed Aropax (an anti-depressant) with repeats for three months. The aim of his treatment was to stimulate endorphin production and reduce his anxiety. Donald Walker was to use stretching exercises for the neck, shoulders and arm muscles to try to improve the length of his muscles and so increase the range of motion and ultimately their function. He was also to continue with trigger-point therapy, the aim of which was to de-sensitise and so reduce the generation of pain from the trigger points. This was a treatment in which the patient had to ignore the pain involved in the process. As of 31 October 2000, Dr Lim reported that Donald Walker was still very sensitised to pain and had increased his Aropax to two a day. Donald Walker's condition did not improve. Dr Lim saw him again on 14 December 2000 and recorded that Donald Walker's life was consumed by his pain.

1. The situation had not improved by 3 April 2001, when Dr Lim reported that Donald Walker was barely keeping his pain under control using the techniques he had learnt at a pain relief clinic, Olympia. He suggested to Dr Spencer that the pain level was such that Donald Walker should be prescribed Oxycontin, a synthetic morphine, and set out a program by which drugs should be given and how they might be increased. In his view, the chances of Donald Walker not being in pain in the future were about zero. He did note, however, that things can change as science changes, people age and psycho-social circumstances change. He suggested Donald Walker might benefit from attending a pain management program and noted that knowledge, experience and science changes every 6 to 12 months. He said that everyone with this pain syndrome has a history of sleep disturbance and being very tired and a history of difficulty with concentration and memory. Asked about psycho-social factors and litigation, he said that he sees people before and after court cases and that after court cases they are still miserable with their pain. When Dr Lim reported to Professor Chambers on 25 July 2001, Donald Walker was still suffering from the myofascial pain syndrome. He had completed the rehabilitation program without any benefit. Donald Walker reported to Professor Chambers that he was taking low doses of the drug Endep, was still in pain and that his general practitioner had recommended that he go onto Neurontin, a drug effective for neuropathic pain. Professor Chambers said that the only other thing he could suggest to Donald Walker at that time was that he ought to be managed in a chronic pain clinic setting.

1. In 2002 the situation had not improved. Professor Chambers discussed with Donald Walker the possibility of cortisone injections into the cervical facet joints. This was not proceeded with. At that stage Donald Walker was being prescribed Kapanol (a form of morphine) 60 mg twice per day and Endep (anti-depressant) 75mg at night. He had previously been taking Neurontin, which had been prescribed. He was taking Duphalac and Coloxyl to try to cope with the constipating side effects of Kapanol. Professor Chambers said that Kapanol and Endep can slow down the mental processes.

1. Professor Chamber's opinion, in his report of 16 April 2004, was that the various problems associated with Donald Walker's neck injury were the result of the incident in 1993. He assumed that it was the result of being beaten repeatedly over the head and neck with batons, but said it could have been caused by being arrested and placed in a headlock with wrestling. He said that struggling in a headlock would be more than adequate to cause the injuries. He also said that a single severe blow to the head or neck would be sufficient to cause a whiplash-type injury. He said that each time he examined Donald Walker he had found neck tenderness. In his view there was ample evidence to explain the development of his myofascial pain syndrome. His view was that Donald Walker required management in a chronic pain clinic with a multi-disciplinary approach. He expressed the opinion that during his treatment of Donald Walker there was no conscious or deliberate exaggeration. He thought that in the last year or so of his involvement[181] Donald Walker had been managing a little better with concentration and reasoning and behaviour, despite the fact that the pain was worse.
2. Dr Spencer, who reported on 27 April 2004, expressed similar views and described Donald Walker's prognosis as basically "more of the same and the emotional physical hurt have been, and will continue to be, very disabling". He summed up the situation as one where Donald Walker had had 10½ years of very poor quality existence and had ended up on narcotics on a continual basis. Looking to the future his view was that he would physically continue in the same vein, but hopefully would improve when the litigation had finished. He thought the physical condition has probably plateaued. He said that Kapanol, a drug being used for some time by Donald Walker, was the drug you use when all else fails and you have to get pain relief. He said the dosage of 60 mg was more than he would liked to have seen Donald Walker using. He expressed concern about his capacity to work if he was to remain on Kapanol. Dr Spencer last saw Donald Walker in April 2007. He said he did not think there had been any change.

15.4 (G) PSYCHOLOGICAL AND PSYCHIATRIC EXPERT TESTIMONY

1. Evidence was given by Michael Crewdson, an experienced psychologist. He has had more than 50 consultations with Donald Walker since 2000 and has attempted to treat him. The psychiatrist engaged by the defence, Dr Cole, also gave evidence - but as a witness for the plaintiff, not the defence.

1. Mr Crewdson first saw Donald Walker at the request of Mr Lee of counsel. He was told that Donald Walker had a psychological disorder and no-one was looking at it and he needed help.
2. Their initial discussions concerned whether he needed assistance. Donald Walker did not accept that he had a psychological disorder and that he needed help. Mr Crewdson said that he made it quite clear that his involvement was to try to assist Donald Walker and they had maintained that interaction ever since. He said Donald Walker would like to deny that he has any real psychological issues that could be dealt with by people like Mr Crewdson. In obtaining instructions from Donald Walker he considered whether Donald Walker had the mental capacity to give instructions and to understand the case.
3. He had formed the judgment that Donald Walker was of above average intelligence. He said this was shown from formal testing. He considered there was no interference with his capacity to instruct or understand the circumstances. But he said whether one could get clear instructions from him because of his anxiety state or his own level of disorganisation might be another matter.
4. Mr Crewdson's opinion is that there are three interactive psychological streams -
   • post traumatic disorder,[182]
   • chronic pain disorder involving both medical and psychological issues - the medical issues being myofascial pain syndrome that had been diagnosed and the headaches and sleeplessness that were a consequence, and
   • adjustment disorder with depression and anxiety flowing from the ongoing consequences of the event - the damage to the business, loss of businesses and the involvement in the litigation.
5. Prior to 2005 Mr Crewdson had been approached by three different solicitors to provide forensic reports, but he had not done so, explaining that his role was of a different kind. He was asked for a report in 2005 by Mr McMonnies. By that stage he thought that the whole process had become so complicated that he had no choice but to give a report. He administered some standard tests to assist in his diagnosis and to prepare himself for such involvement. He said that he last saw Donald Walker three weeks earlier but, prior to that, had not seen him since the second report of 26 April 2007**.** The arrangement generally had been an open arrangement. He said he could not see why he would not be seeing Donald Walker again.
6. Asked if he had not been able to do much for Donald Walker over the years, he said that he had thought that possibly he had done something, but he had not done what he wanted to do for him and, regrettably, he had not in general terms helped him. He said he thought he had given some support and had been able to try and teach him some methods of controlling anxiety. He had tried to teach him some techniques of a cognitive behavioural kind to try and challenge thoughts and patterns. He saw his role in part as that of an emotional punching bag. He was not saying that Donald Walker would attack him, but he would absorb the pain, the stress and the frustration of what was going on.
7. He said the difficulty in helping Donald Walker was his complexity. He said that where there can be no surgical or physiotherapy relief or other drug relief, all one can do is palliate by controlling the pain. There is inevitably a consequence then that with opiates in the system on a constant basis, the person starts to accommodate to the effect which sometimes in some people will lead to an acceleration of dosage. He said he had not had a concern in the past that that would occur with Donald Walker. He thought he was quite disciplined in his use of medication. Another consequence is that on occasions if one is battling against the effects of soporific drugs, one's functional level of acuity in a cognitive sense starts to deteriorate. The opiates Donald Walker was on were soporific and he said he thought that that was an additional problem. He referred also to the unpleasant gastro intestinal effects. He said that one of the difficulties is that if a person is preoccupied by a psychological set that they have been damaged and they have evidence that they have been damaged physically, psychologically and socially, it is very hard to shift them away from that. He said that the effects of litigation sometimes unwittingly exacerbate those processes, particularly when it is complex and lengthy. But he said that that just becomes "another stream in the cascade or avalanche of events that follow". He said he would have liked to have seen him back at Olympia for a more intensive revisitation of the psychological and physical processes. But he said there were other difficulties such as money, time, urgency and preoccupation, flowing in part from his personality and anxiety and partly from his aggrievement and his high sense of injustice as to how he had been treated as he saw it.
8. In his report of 2005, Mr Crewdson reported a moderate to high level of anxiety in Donald Walker, and a constant battle against depressive responses related to the pain and the frustration from the losses he had suffered**.**
   • The losses: Mr Crewdson was there referring to Donald Walker's level of physical activity and his capacity to handle insurance sales work. There were also concerns about mobility, the safety of him driving and what it would be good for him to be doing. There was also the loss of the development of the various business ventures with his brother, and the loss of his mother in circumstances in which he felt she had been badly treated and, as he saw it, her death had been hastened. Finally, there was the loss of his brother; Donald Walker has expressed a lot of guilt about the effect the process has had on his brother Marcus.
   • Depressive responses: Here Mr Crewdson was referring to difficulty in sleeping which can be the result of both anxiety and depression, a lack of ability to appreciate anything of a pleasurable emotion, relatively little activity in the pleasure centre, everything seen in fairly dark attacking terms and a lot of anger. He had noted early morning waking, variations in mood, appetite and loss of libido.
9. He said in his view the depressive aspect was clearly reactive and Donald Walker tends to deal with the depressive processes by fighting them and his anxiety level then carries above them and he rebuts them. He said he did some assessments and his depressive scores still came out as being quite high to the point where, in ordinary circumstances, you would prescribe an anti-depressant. Donald Walker will not, however, take any other drugs. He said he is not depressed in the same sort of way that Marcus Walker is. Marcus Walker is more introverted and the introversion becomes amplified. He said Donald Walker acted out and he virtually has no time in a sense to be depressed. This did not mean, however, that he did not have depressive impulses.
10. Mr Crewdson said he did not think he had ever seen Donald Walker free of signs of anxiety. He said they fluctuate; Donald Walker manages them and controls them. He said at times he can present as being affable and seemingly relaxed, but you have only to say the wrong thing and he goes off. He did not think anxiety had ever been absent. In the report, he described Donald Walker's anxiety as being at a moderate to high level. Asked to identify the signs he saw of anxiety, he said it included the constant need to break off the consultation and go and have a cigarette, to smoke the cigarette compulsively, almost angrily and then come back almost as if he was coming back to the fray. A consequence for his functioning is that he has difficulty processing material .
11. The psychological tests Mr Crewdson administered gave no indication of any psychotic disorder or delusional disorder or paranoid related disorder. There was a very defensive focus in Donald Walker's perceptions, but these were focused and Mr Crewdson's opinion was that they may well be based on the reality of particular events.
12. Mr Crewdson's overall assessment was that there was an underlying series of depressive processes that Donald Walker was pushing away and this, together with a change in social circumstances, led him to consolidate a continuing diagnosis of post traumatic stress disorder. The adjustment disorder he diagnosed on the basis of Donald Walker's response to ongoing events. He diagnosed the chronic pain disorder on the basis of the interaction between the medical condition (as reported to him) and Donald Walker's attitude towards the events**.**
13. The material that Mr Crewdson had in his possession in forming his opinions was comprehensive. As far as the injuries were concerned he said that he had contacted a number of practitioners and he had relied upon what he was told by Donald Walker. Without going into detail, this was essentially in accord with Donald Walker's evidence and that of his friends and employee. Donald Walker did say to him that the operation in the year 2000 had increased his neck movement.[183] He also said that when he first came under his treatment, Donald Walker had told him that he did not have any leisure activities**.**
14. The detailed analysis of the diagnosis of Post Traumatic Stress Syndrome is set out in Mr Crewdson's report. In view of the fact that Dr Cole also arrived at the same diagnosis and that there is no contrary evidence advanced, I do not propose to go into those matters in great detail.
15. DSM-IV summarises the diagnostic features[184] in the following terms:

"The essential feature of post-traumatic stress disorder is the development of characteristic symptoms following exposure to extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one's physical integrity; witnessing an event that involves death, injury, or a threat to the physical integrity of another person's; or learning about unexpected or violent death, serious harm, or threat of death or injury experienced by a family member or other close associate (Criterion A1). The persons response to the event must involve intense fear, helplessness, or horror (...) (Criterion A2). The characteristic symptoms resulting from the exposure to the extreme trauma include persistent re-experiencing of the traumatic event (Criterion B), persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (Criterion C), and persistent symptoms of increased arousal(Criterion D). The full system picture must be present for more than one month (Criterion E), and the disturbance must cause clinically significant distress or impairment in social, occupational, or other important areas of functioning (Criterion F)."

1. I have attempted in Appendix L to summarise the major points made by Mr Crewdson in respect of the relevant criteria, issues raised by defence counsel and my analysis of them.

1. Dr Cole supplied a report giving his assessment. He expressed the following conclusions about Donald Walker in response to the questions that had been put to him by the defendants' solicitors.

"1 He is suffering from a chronic post traumatic stress disorder accompanied by depression.

1. 2 His condition is directly contributable to the injuries alleged.
2. 3 He received treatment from a neurologist and is currently receiving psychological counselling.
3. 4 He is not fit for his pre-injury employment and I doubt if he would be employable in any other capacity, at least until all forms of litigation have been concluded.
4. 5 His condition appears to have stabilised at its present level, but there could be a modest improvement following settlement of his claim. However, I think it in the highest degree unlikely that he will recover completely.
5. 6 The effects of his injuries upon his employment, social and domestic pursuits are described in his history and in the document he provided. I would accept that, whatever the rights and wrongs of the matter, he has experienced very considerable pain and suffering. ..."
6. In cross-examination by counsel for the first defendant, Dr Cole accepted the proposition that there was a spectrum of people who met the DSM IV criteria for post traumatic stress disorder, some of whom could lead a life with vocational and social fulfilment and with close personal relationships and, in many respects, lead a normal life. In response to a leading question from defence counsel, he said that nothing he observed placed Donald Walker in the extreme end of the spectrum. Accepting those propositions, his conclusions listed above nonetheless point to a serious case of post traumatic stress disorder. He said the word "chronic" simply meant of long standing as opposed to acute, which is sudden and short lived. He pointed out that chronic was not a definition used in DSM IV.
7. In cross-examination by counsel for the second defendant, Dr Cole said that his view was that the symptoms Donald Walker was reporting were real. He also said that it was hard to be certain as to the degree of the symptoms reported - whether underreported or overstated. He said that the impression he had was that the PTSD had had an adverse effect upon his life to a moderate degree - it was more than mild and he would not say it was severe.
8. In re-examination this issue was taken up by counsel for the plaintiff who asked Dr Cole to assume that there was evidence before the court that Donald Walker tired during the day and when an employee was present he would take himself off on a moderately regular basis to sleep, and evidence from the plaintiff himself that he slept for short periods of time at night. Asked how the information fitted together, the witness said it fitted together quite well. He said he did not detect any deliberate exaggeration or understatements by Donald Walker. He said he was on the lookout for such things. He said he did form the impression that the condition had had an adverse effect on Donald Walker's life of a moderate degree.
9. Returning to the issue of the impact on his life generally of the events of the night, Dr Cole said that Donald Walker had conveyed the impression that they had been quite substantial. He had not slept in his own bed for four years and had nothing to do with a woman for five years. He said this was consistent with a disorder of moderate severity. The decision to sleep on the couch to be available to go straight to the door in the event that people came through the door, again pointed to him living in a state of fear and apprehension. Asked if he saw anything physiological that was of assistance to him in his diagnosis, he said that Donald Walker showed pressure of ideas, a preoccupation with the theme of the injury that had been done to him, and when speaking, a tendency to do so restlessly and volubly. He said he thought Donald Walker showed objective evidence of tension and anxiety.

1. Looking to the future, Mr Crewdson did not think that Donald Walker's prognosis was that good, even if he obtained a satisfactory result in the case. If there was just the one disorder, he would be reasonably confident about the likely prognosis, but Donald Walker has three interacting disorders. He agreed that the vindication of Donald Walker's belief and claim was an important psychological function. He commented, however, that sometimes it does not stop people from wearing their cervical collars for 30 years. That is part and parcel of their own process and often, for psychological reasons, they cannot get rid of that collar. He said the mere outcome does not guarantee anything. He said the reverse is certainly true.

1. Dr Cole said that the length of time the case has been going on was significant, because it meant that Donald Walker's prognosis was not as good as it would have been if it had been possible to clear the matter up within a year or two of the incident. He had all these years to think about it, to dwell upon it, to describe it and to become involved in the machinery of litigation, all of which had the effect of perpetuating his condition.[185] He expressed a little bit of concern about the possibility of Donald Walker becoming dependent upon Kapanol. He said if it is accepted that the physical condition will remain much the same, then his prognosis is less favourable than it would otherwise be. He confirmed his view expressed in the report that while complete recovery was in the highest degree unlikely, he thought there could be some improvement following settlement of the proceedings - if Donald Walker was likely to be less preoccupied with "this business". In cross-examination he explained that he meant Donald Walker may be less preoccupied with the events of the night and the effect it had had on him and his family. It wouldn't be continually brought to his attention by the litigation process.

Defence arguments regarding the expert testimony

1. The histories given to Mr Crewdson and Dr Cole were substantially consistent with Donald Walker's evidence and that of his friend and his employee. Comparing them with the diagnostic features, it is hardly surprising that both experts agreed in their diagnosis of post-traumatic stress disorder.
2. Notwithstanding the agreed diagnosis and the absence of any expert testimony called by the defendants, defence counsel focused considerable attention upon the diagnosis of post traumatic stress syndrome. Defence counsel were at pains to emphasise that what matters forensically are the symptoms identified which attract the label rather than the label itself. Accepting that proposition, if the diagnosis is a valid one and the label attaches, the situation is one where the Court should be satisfied that Donald Walker is suffering from a serious psychological disorder and has been for the last 15 years. In any event, Dr Cole obviously identified symptoms of serious concern. Another point that counsel for the defendants sought to argue is that someone could satisfy DSM IV criteria and it would not have necessarily have any significant impact on that person's life. But, as Mr Crewdson pointed out, under PTSD criteria there had to be a significant adverse impact on the individual.
3. While several matters were raised in challenging the basis of the diagnosis of Mr Crewdson,[186] the evidence supporting the diagnosis is plainly compelling and is supported further by the fact that the psychiatrist engaged by the defence, Dr Edward Cole, reached the same conclusion. His examinations occurred on 22 and 30 March 2007. His conclusion was that Donald Walker was suffering from "a chronic post traumatic stress disorder accompanied by depression". Ultimately an attempt was made by the defendants to attack the diagnosis on the basis that what Donald Walker has said to the experts, from which they formed their diagnosis, should not be believed. It is conceded that, if it should be believed, the diagnosis is correct and post traumatic stress disorder has occurred. The seriousness of the disorder, of course, is also an issue.
4. The attacks on the factual basis of the diagnosis by the experts primarily concerned the following attacks on the credibility of Donald Walker:
   • the exaggeration of blows and symptoms,
   • inconsistencies in answers to the Cornell questionnaire,
   • inconsistent evidence relating to loss of consciousness and amnesia,
   • exaggeration of the deterioration of his business, particularly to Crewdson.
5. My analysis of these attacks and my reasons for rejecting them appears in Appendix C and in the case of the last issue, also in the discussion of the economic loss below. I note also that part of the expertise and experience of psychiatrists and psychologists is assessing the truth of what they are told by persons they are treating or assessing. Dr Cole accepted that Donald Walker was genuine.

1. Both Mr Crewdson and Dr Cole agree that Donald Walker is suffering post-traumatic stress disorder as a result of the incident and both agree that he is suffering depression. Mr Crewdson, however, saw the situation as more complex, with three disorders interacting.
2. In comparing the two experts, an important difference appears to be their opinions as to the severity of the consequences of the events of the night on Donald Walker. Dr Cole's assessment was not as grave and he was more optimistic as to the future. The difference between the experts, however, is not great.
3. Mr Crewdson's assessment is to be preferred. He has a very significant advantage over Dr Cole in assessing the plaintiff, because of his many meetings with him over a considerable period, some seven to eight years. Dr Cole, on the other hand, only saw Donald Walker for a total of one hour and 45 minutes on two occasions in March of last year. Not only is he at a disadvantage in terms of the depth of his experience of dealing with Donald Walker, he has not had the advantage that Mr Crewdson has had of observing Donald Walker over a longer period. The evidence on which Mr Crewdson acted is also supported by lay evidence of people who have known Donald Walker well, for some time.
   • 15.5 EXAMINATION OF EVIDENCE - CONCLUSION
4. Donald Walker has suffered post-traumatic stress disorder as a result of the incident and still suffers today. The relevant symptoms include living, initially, in a state of acute fear, which dominated his existence for several years, and suffering repeated nightmares, including violence and waking thinking there was someone in the room. He has been in a state of sleep deprivation since the incident and still lives with a high level of anxiety, suffering unpleasant dreams which usually are associated with violence. He also has suffered from chronic pain disorder and adjustment disorder. Since the incident he has been in a constant battle with depression and anxiety, battle being the operative word. Looking to the future there is no magic wand to be waved that might improve his situation. The two experts accept that the psychological consequences described are genuine**.**
5. In addition to the psychological consequences, Donald Walker has had to deal with considerable pain constantly, each day and night, from the night of the incident. The cause was the aggravation of a degenerative condition in his neck and its worsening. After some initial slight improvement, that pain worsened, resulting in surgery in 2000. It was not successful and the pain in fact significantly increased shortly after the surgery. Subsequently, he was diagnosed as suffering myofascial pain syndrome. At that time, as Dr Lim expressed it, he had become "consumed by pain". Treatment was attempted involving its own considerable pain. It was unsuccessful. The pain has been such for the last eight years that he has had to use Neurontin for a short period and then Kapanol, the latter being the pain killer of last resort. During that time he has been on medication to help him deal with the constipation resulting from the use of Kapanol. The medication is of minimal benefit. He has had to be hospitalised three times because of constipation, and once a week, on average, he has to "manually evacuate" his bowels**.** His faculties and functioning have been adversely affected by this medication. To function he has generally taken only half the daily recommended dose of Kapanol and continues to live in a state of considerable pain. Physically he has been and remains significantly restricted in his head, shoulder and arm movements. He has not been able to drive safely, or without great difficulty, because of these physical limitations and his sleep deprivation.
6. Because of the incident, his previously highly enjoyable and socially active lifestyle has been lost. He has attempted to travel, but that has been difficult in his condition. His active sexual life has been lost, as his libido is virtually non-existent and he is unable to function sexually.
7. His personality and temperament have changed significantly for the worse. He has become a very different person. He gets angry very easily and is difficult, moody and unpredictable. As a result, his friends have found it a challenge to maintain contact. In addition, those who have to work with him find him very difficult. He has become a very heavy and messy smoker.
8. He has not been able to resume tennis and fishing. He is no longer able to enjoy simple activities such as watching videos. Because of his constant fatigue and physical injuries, he is unable to look after his home and office and they are in a constant mess. To quote Dr Spencer's understatement, he has experienced 15 years of "very poor quality existence". He has, however, retained his capacity and determination to push through.
9. As to the future, as noted above, Dr Spencer expressed the opinion that he expected Donald Walker to continue physically in the same vein. Professor Chambers appeared to hold a similar position. The future will require ongoing pain management. There is no evidence that supports the conclusion that his physical condition will improve - or could worsen. He will presumably continue, as Dr Lim put it, in December 2000 to be consumed with pain and so, will continue to have to use morphine and endure the consequences of that. Coping with chronic pain and disabilities will inevitably have psychological impacts. The stress of the pending litigation will not have helped in the past and, as Dr Spencer put it, "hopefully [he] will improve.... when this episode is resolved"[187]. Psychologically, accepting that his fundamental physical disabilities will remain much the same then, at the most optimistic, as Dr Cole put it, "his prognosis is less favourable than it would otherwise be". The reality is, however, that, as Mr Crewdson explained, a prognosis on this aspect is very difficult because of the complexity of Donald Walker's three interactive disorders. Counsel for the plaintiffs, however, appear to accept that it should be accepted that for the future there is the possibility of some improvement psychologically and I proceed on that basis. There is also a very slim chance that further pain relief treatment in a pain clinic, free of the stress of the litigation, might assist. His depression might also be assisted.
10. As to the issue sought to be raised by the defendants, based on the views of Professor Chambers about psychological exaggeration of disabilities, he was there referring to a much earlier time and the psychological consequences of Donald Walker's pain on his ability to cope with his disabilities. He was not referring to a primary psychological or functional problem. Accepting the scenario that his pain and disabilities have plateaued, and the absence of evidence to suggest that this issue still exists, the issue would appear not to be a live issue for the future.
11. I accept that there is likely also to be some slight improvement in his quality of life when the litigation ultimately concludes; a major source of stress will disappear from his life, stress that he has been living with for many years. As a result, as the defendants have argued, relying on McRae, the is likely to be some improvement in his behaviour. Donald Walker has shown extraordinary determination and an extraordinary capacity to keep going in spite of his injuries, psychological and physical condition and ongoing disabilities and pain. Many people would have given up the struggle. A person with his capacity to press on with his life in such circumstances is likely to be assisted by the conclusion of the litigation, particularly a successful conclusion of that litigation. But I would not expect it to be significant or consistent because of the continuing pain, the need for drugs and the residue of the psychological damage. It is likely that his pain and suffering and his remaining post-traumatic stress disorder issues and depression will continue even if at a slightly lesser level, and that he will continue to have to rely on Kapanol and deal with its side effects. His future quality of life is likely to be much the same as it is now - "of very poor quality". Also the continued use of Kapanol poses potential problems for his future functioning and quality of life.
12. Damages for pain and suffering and loss of enjoyment of life for the future should reflect these matters. Any assessment, of future loss, however, must among other things, allow for the possibility that some later event may have accelerated the degenerative condition in the cervical spine.
    • 15.6 QUANTUM OF GENERAL DAMAGES FOR DONALD WALKER
13. The narrow and minor compensatory framework advanced for the defendants should be totally rejected. Donald Walker's claim for general damages should be assessed on the basis that he has been and will remain very seriously injured.
14. Counsel for the first defendant submitted that any award for general damages must be made bearing in mind the level of general damages "which such injuries attain". Counsel referred to Royal Dental Hospital of Melbourne v Akbulut.[188] I note that in his reasons, Winneke P made the following points about the learned trial judge's assessment in that case:
    • The sum awarded by the trial judge was significantly in excess of the median of the range of figures put by senior counsel for the plaintiff, indeed even beyond the highest;
    • His Honour's assessment was highly disproportionate to the consequences of the plaintiff's injuries and disabilities when compared with the range of compensable injuries and disabilities of which the law, and human experience is cognisant.
15. His Honour commented generally that, when assessing non-pecuniary loss damages,

"Judges must bear in mind the same things that they would instruct juries to bear in mind; such as the inability to perfectly compensate pain and suffering in terms of dollars and sense; and not to fall into the trap of punishing the wrongdoer and awarding compensation in amounts which individual jurors would want or expect if they were the injured party; and to avoid the risk of "doubling up" by awarding damages under the head of "loss of enjoyment" when that same loss is to be considered under some other head."

1. In a footnote his Honour drew attention to recent awards for non-economic loss in serious injury cases, notably quadriplegia cases which ranged from $250,000 to $450,000 in New South Wales and Victoria respectively.[189] Having regard to those figures, His Honour commented that the award of the trial judge of $225,000 for general damages was disproportionately excessive. His Honour commented that the plaintiff:

"Has not lost her freedom of movement, her capacity to communicate at a superior level, or her ability to earn income at a level above that which she was earning at the time when her injury accrued, although less than the ultimate which she aspired to earn. The latter disability falls to be compensated primarily under economic loss, and care must be taken not to over-compensate, on account of it, when assessing non-economic loss;"

1. His Honour went on to refer to the same problem arising for the pianist who loses the use of his or her hands or a model who suffers unsightly scarring. His Honour also had regard to the possibility of the disabilities which were psychological or functional having the capacity to resolve themselves in time. In allowing the appeal, the court reassessed the damages. Winneke P[190] assessed the damages at $150,000 for general damages having regard to:

"the nature of her disability, and its past and ongoing consequences to her, ..placed alongside, and comparison made with, the range of damages for compensable disabilities for which compensation is and has been awarded, in this state"

1. The injuries of Ms Akbulut and their consequences as claimed were as follows:

"In essence, her claim was that she suffered residual and permanent injuries as a consequence of the doctors employed by the appellant hospital negligently performing the operation to remove her impacted wisdom teeth. She was left, so she claimed, with the anterior two-thirds of her tongue anaesthetised and desensitized as a consequence of the adopted procedures damaging the lingual nerves which serve the senses of taste and feeling in the tongue and floor of the mouth. These injuries, so it was alleged, had led to further disabilities of a physical and psychological and/or psychiatric nature. Those further disabilities included lack of control of the muscles around the mouth giving rise to a tendency to "drool"; aching and "locking" of the muscles of the jaw due to endeavours by the respondent to compensate for the incapacity to control the movements inside the mouth; depreciation of marital status and relationships with her husband and child as a consequence of the "poor self-image" developed by the respondent of herself; development of personality changes involving mood fluctuations to the point of depression, excessive drinking of alcohol and suicidal ideation."[191]

1. As to the findings made, the following was recorded in the Court of Appeal:

"I have already given a brief outline of the physical, emotional and psychological consequences of the injuries suffered by [the respondent]. She has profound or total numbness of the left side of her tongue and the floor of her mouth. On the right side there is substantial loss of sensation with very limited response to stimuli. Both conditions result from the removal of the two wisdom teeth and they are permanent. I reject submissions made on behalf of the defendant that the right-sided injury was a temporary condition."

1. His Honour then referred to the respondent's lack of capacity to sing for any length of time which, as his Honour said, was for the respondent "a very substantial loss". He referred to the psychiatric evidence of "mood swings" and depression, the difficulties in the marriage between the respondent and her husband and her relationship with her son. His Honour noted that the respondent had refused medication for depression, a decision which his Honour said he "respected".
2. In assessing general damages for Donald Walker, regard must be had to the matters referred to by counsel, which were articulated in the Akbulut case. But a consideration of the level of general damages "which such injuries attain" is difficult. A comparison, for example, of the Akbulut case with quadriplegia cases clearly demonstrate the problem that what is being compared is not apples and apples. There is the further issue that must be borne in mind that some time has passed since these past authorities were handed down. Akbulut was decided six years ago and the cases referred to in it, eight and ten years ago. The value of the dollar has declined in that time.
3. In this case, the injuries, pain and suffering experienced initially, and in the last 15 years, and that will be experienced in the future, by Donald Walker are significantly greater than those experienced by Ms Akbulut although they were in themselves significant. In Donald Walker's case, even assuming some slight improvement for him in his quality of life and in his coping with his pain and disabilities once the case is finalised, because that major stressor will have been removed, the fact remains that he was very seriously injured physically and psychologically in the incident, that he has endured it impact for 15 years and he is left with a serious neck injury and chronic myofascial pain which can only be dealt with by using morphine. This will significantly impact on his ability to function and so enjoy life. It appears that the best he can expect is that his physical condition will remain stable but that means that he will continue to need Morphine and there is a real possibility that his use of it will increase. It will continue to adversely affect his functioning and quality of life. He also has experienced and will experience serious psychological problems. His enjoyment of life was destroyed and for the future any improvement is likely to be marginal and comprise, principally, the reduction of the stress resulting from the conclusion of this litigation.
4. This case also has a significant feature which must be borne in mind in making any assessment. I refer to the fact that Donald Walker has shown remarkable stoicism in pressing on and pushing through his considerable disabilities to maintain his business and some sort of life. In assessing someone who has done that, it is easy to award too little because his stoic approach may subconsciously encourage a discounting of the effect of the incident.
5. Having regard to the foregoing, it seems to me that the range of damages nominated by counsel for Donald Walker is in fact a moderate one and that damages of $300,000 should be awarded by way of general damages to cover 15 years of pain and suffering and loss of enjoyment of life, plus many more into the future. This figure appears to me to be within the range when comparison is made with the cases abovementioned and allows appropriately for relevant vicissitudes. The injuries in those cases were serious, but the situation in which Donald Walker has lived and finds himself now and into the future was and is much more serious.

SECTION 16 GENERAL DAMAGES CLAIM - MARCUS WALKER

1. Dr Marcus Walker seeks compensation for severe and chronic psychiatric injury which he alleges resulted from the incident in which his mother and brother were injured. The particulars of injuries alleged in the pleading are:
   • Severe and chronic psychiatric injury;
   • Post Traumatic Stress Disorder;
   • stress related abscess;
   • severe anxiety;
   • nausea;
   • insomnia;
   • indigestion;
   • respiratory difficulty;
   • severe shock.
2. It is not now alleged that he suffers from post-traumatic stress disorder. The psychiatric injury alleged comprises chronic adjustment disorder and depression.
   • 16.2 CAUSATION ISSUES - INTRODUCTION
3. Before considering the damages claim of Marcus Walker, it is necessary to consider the causation issues raised by defence counsel. It is also necessary to consider the defence argument that the damage alleged is too remote. These issues ultimately determine whether any loss or damage flows from the incident and is recoverable.
4. After considering these issues I will turn to the adduced medical and lay evidence, in the context of the general damages claim, consider defence arguments and reach final conclusions regarding Marcus Walker's claim for general damages. I will then consider the claim for general damages for the estate of Marcia Walker. Following that, I will turn to the economic loss claims of Donald and Marcus Walker.
   • 16.3 CAUSATION ISSUES - COMMON GROUND
5. It is common ground that causation is to be determined in accordance with March v Stramere [1991] HCA 12; (1991) 171 CLR 506, that is, causation is a question of fact to be resolved by the application of common sense. [192]
   • 16.4 PLAINTIFF'S SUBMISSIONS ON CAUSATION
6. Counsel for Marcus Walker relied upon Dr Pargiter's evidence in arguing that there is a causal link between his current psychiatric disabilities and the incidents involving his brother and his mother.
7. Marcus Walker was referred to Dr Pargiter by his general practitioner and first seen on 23 February 2001, approximately two weeks after his mother had died. He has since seen him some 70 or more times.
8. In his report of 30 April 2004 Dr Pargiter stated:

"He initially presented as a 48 year old, never married, former science academic and now disability pensioner referred for assessment and management of a chronic illness associated with a drawn out legal dispute and his late mother's terminal illness. He had symptoms of depression with emotional exhaustion, dizziness, reduced concentration, dyspnoea, anergia, misery, insomnia and social withdrawal. Poor appetite, low, unresponsive mood, psycho-motor retardation, morbid thought completed a variable, fluctuating seven year clinical picture. The mental state assessment reflected both depression and personality characteristics. Psychiatric and psychological intervention in the past had not been helpful. In the causation of his illness personality characteristics and his mother's terminal illness were pre-disposing factors and perpetuating factors litigation, career interruption and family disputation. The trigger was a physically and psychologically traumatic incident of August 1993 ".

1. Dr Pargiter then stated his diagnosis which was "chronic adjustment disorder with depressed mood which still obtains." He elaborated on his reference to fluctuations in the context of Marcus Walker's depression saying it ranged from moderately severe to normal. He later gave evidence that a precipitating cause would be a sudden shock, a sudden loss "they would be the trigger". He later added that the impact on his mother and his caring for her, bearing in mind her terminal illness were perpetuating factors.
2. Dr Pargiter also expressed the view that an important factor in the development of the psychiatric conditions was his belief, following the incident, of injustice and the sequelae to that. Dr Pargiter in cross-examination also said that he did not know that the belief in the conspiracy existed early. He thought it tended to grow as justice was pursued, unsuccessfully. Counsel for Marcus Walker accepted that his client cannot succeed unless there is ultimately a finding that there was at least an injustice in this affair.
3. Counsel submitted that the evidence of Marcus Walker and other witnesses should be accepted and that it pointed to a sudden break or alteration at about the time of the injuries to his mother and brother. Counsel submitted that this was because of the impact psychologically upon him of his observation of the aftermath of the incident.
4. Anticipating defence arguments, counsel submitted that what occurred would not have happened to Marcus Walker eventually anyway. Further, the fact that he was able to get into the witness box and give evidence for a protracted period under heavy cross-examination did not demonstrate that he was in fact unaffected psychologically and intellectually and could pick up and resume the life he enjoyed before. Counsel submitted that it was plain observing him in the witness box that he gave evidence as a psychologically damaged person. In addition reliance was placed on the evidence of other witnesses such as Dr Hughes about his exceptional physical and intellectual capacities prior to the incident**.**
5. His counsel accepted that Marcus Walker's belief that there was a conspiracy had exacerbated the psychological impact of the offence. But it was put that he had a basis on which that view could be formed and if he was ever overwhelmed by the conspiracy thesis, it was because of the assaults and was a consequence of the assaults and it is not to the point that a conspiracy has not been proved. Counsel submitted that Marcus Walker held these views and that they arose out of the impact of the events on the night and his efforts, flowing from the events, which exposed the information. It was not a novus actus. he actions of the defendants and police generally after the incident including the issuing of and withdrawal of proceedings, and the discrepancies produced in the documents produced, provided a basis for the conspiracy theory and flowed from the original events[193]. They aggravated the psychiatric damage already done by the events.
   • 16.5 DEFENCE SUBMISSIONS ON CAUSATION

1. The defendants deny any causal link between the alleged injuries of Marcus Walker and the alleged assaults and batteries. They deny any initial causal link and also argue that, if there was an initial causal link, it was broken by one or more other factors or that those factors were the true cause of the injuries. They also submit that the damage claim by Marcus Walker is, in any event, too remote.

16.5 (B) DENIAL OF INITIAL CAUSAL CONNECTION

1. Counsel submitted that Dr Marcus Walker has not proved on the balance of probabilities that his psychiatric ill health is causally connected to the original assaults and his observations of their consequences at the time. Relying particularly on the evidence of Dr Sale, counsel submitted that the causes of Dr Walker's psychiatric illness were to be found in his unusual personality and his development of the conspiracy theory, in which he had immersed himself..
2. In assessing these claims, I will consider first the case advanced relying upon Dr Sale's and Dr Pargiter's evidence. I will then consider the case advanced relying on other evidence.

16.5 (C) INITIAL LINK - PSYCHIATRIC EVIDENCE

1. Counsel for the first defendant relied upon Dr Sale's reports and evidence. The details of Dr Sale's testimony and defence arguments supporting it are considered in Appendix N1(a) (Dr Sale's evidence). For reasons there stated, Dr Sale's testimony should be rejected. His was a singularly unprofessional approach. The reasons include the fact that he formed his opinions in ignorance of the circumstances leading to the injuries to Marcia and Donald Walker, and the extent of those injuries and Marcus Walker's past history. Further, he deferred to Dr Pargiter's analysis in abandoning his hypothesis of Delusional Disorder because of Dr Pargiter's greater contact and familiarity with Marcus Walker. He declined to defer to his analysis, for no satisfactory reason, however, in maintaining what at best was a speculative hypothesis that "underlying personality characteristics"[194] were a key factor.

1. Dr Pargiter has seen Marcus Walker some 70 or more times since 23 February 2001. He was fully informed of the circumstances surrounding the incident. Dr Pargiter's diagnosis was "chronic adjustment disorder with depressed mood which still obtains." He acknowledged that the mental state assessment reflected personality characteristics and that they were a pre-disposing factor and perpetuating factor. But he did not identify unusual personality characteristics or suggest them as the cause. Referring to the conspiracy theory factor, Dr Pargiter expressed the view that it was an important factor in the development of Marcus Walker's psychiatric conditions, but that the theory had a real basis in the injustice that occurred in the incident. For Dr Pargiter, the trigger was the incident. I accept this evidence. It is not to the point that a conspiracy has not been proved.
2. I turn to the other evidence relied on by the defendants to support their argument that there was no initial causal link between the incident and Marcus Walker's psychiatric illness.

1. Defence counsel submitted that there was other evidence that supported the conclusion that it was in fact Marcus Walker's unusual personality and the development of the conspiracy theory and his immersion in it that was the real and common sense cause of his primary psychological injuries. Counsel referred to a number of matters.

Marcus Walker's immediate reaction not outside normal range

1. Counsel for the first defendant argued that on Marcus Walker's own evidence, his reaction at the scene was normal and there was no expert evidence to contradict that conclusion. By "normal" I understand the first defendant to be arguing that there was no indication of shock or anything to indicate he was particularly shaken by the experience.
2. Counsel for the second defendant argued that on the evidence, there was nothing to suggest that, as a result of his limited involvement in the events of the nights, he was in any sense in a state of shock or grief on the night. Reliance was placed on Dr Pargiter's evidence that the report by the second plaintiff and information given to him did not suggest that his response at the time of the events was outside the normal range of shock and anger. Implicit in that assessment, however, was the conclusion that there was shock and anger.
3. Mr Meldrum argued that contrary to the submissions of the defendants, Marcus Walker's evidence about the impact of the injuries was not muted. He gave evidence about the appalling shock they were all in on the following morning. Counsel also referred to the evidence that he in fact slept on the floor of his mother's home for three nights and then took her home to Tecoma. Counsel submitted that Marcus Walker had seen the injuries and severe shock affecting Donald.
4. It is necessary to consider all the evidence including that of Marcus Walker and relevant police officers.

Marcus Walker's immediate reaction - his evidence

1. In considering these submissions it is important to consider the evidence given by Marcus Walker about what occurred that night, evidence which I accept. He said that he arrived at between five and ten minutes after 1 o'clock in the morning. He found his mother in the ambulance about to be driven off to the hospital. He knocked on the door of the ambulance and the doors were opened and he spoke with his mother. He said she was reclining, totally prostrate and appeared to be in agony. He based that on her facial contortions and the fact that she was holding one arm with the other. His impression was that she was in severe shock. He said she told him she was in extreme agony and they were taking her to hospital. While in cross-examination, he gave what the defence argue was a different account as to what he was told by her as to the cause of the injury,[195] but the substance of his evidence as to his reaction was not affected. He spoke of the impossibility of anyone understanding the impact of the incident or the immediate realisation of that impact on each of the three of them.

Marcus Walker's immediate reaction - evidence of Shenton and Pluim

1. I refer first to the uncontested evidence of Constable Shenton, who was present with Sergeant Pluim when Marcus Walker arrived. Constable Shenton described Marcus Walker as being concerned about his mother, and wanting to know how she had become injured and gone to hospital. He said that Sergeant Pluim tried to explain how she had come to be injured, but said that Sergeant Pluim had a problem doing so because Marcus Walker kept asking questions and interrupting him and did not seem to be taking in what Sergeant Pluim was saying. He said that he wanted to jump in and tell him to be quiet and let Sergeant Pluim talk, but deferred to his superior . Sergeant Pluim in his evidence said that his recollection was that Marcus Walker was argumentative and very difficult. He could not remember his exact responses but he seemed very angry about what had happened.[196]
2. It may be said that these descriptions point to someone in a state of considerable shock such that he was not listening, not functioning rationally and had lost his self-control.

Marcus Walker's immediate reaction - his behaviour at the scene

1. I refer to the evidence of the other behaviour of Marcus Walker at the scene - his inspection of the premises.[197] It is clear that he checked the whole premises - every door and every room. He secured all the external doors except the front door. In the kitchen he turned off the gas, noticing what implements were about.
2. It is said for the defence that this behaviour showed that he was not in shock and revealed a calm reaction to the events. I disagree. In my view, it was the behaviour of a person in a state of severe shock; for he had totally lost his perspective. He was needed at the Box Hill Hospital by his mother whom he loved dearly, and with whom he was very close, and he knew she needed his support.[198] Instead he gave priority to a detailed inspection of the home and the securing of the entrances to the unit - a pointless activity because, as he said, it was effectively impossible to secure the front door.
3. Marcus Walker's reaction was, in my view, well outside "normal" range. He was severely shocked and shaken with the result that he had lost his equilibrium and perspective.

1. Counsel for the first defendant relied on the evidence of Dr Pargiter to argue that without the "injustice overlay", Marcus Walker's reaction would have been relatively short-term anger and surprise - a matter of months.
2. This argument does not advance matters for the defence, because the belief in injustice was founded on the facts of the incident and its consequences. The belief was also soundly based. As counsel for the plaintiff submitted, if you assault and beat someone, it is a foreseeable consequence that those affected will believe a grave injustice has been done. That belief was only reinforced by the ongoing refusal to acknowledge the truth of what had occurred and this helped to perpetuate and worsen the problem.

1. Defence counsel referred to different items of evidence which they argued supported the conclusion that the onset of the psychiatric disabilities did not occur in close proximity to the incident but some years later, sometime between 1996 when he applied for his disability pension and 1998 when he first consulted Dr Grainger-Smith. Counsel referred to various items of evidence.
   • Statement of Donald Walker Defence counsel referred to the fact that when Donald Walker filled in a document for Dr Chambers on 7 September 1993, he described his brother as being in good health.

Little weight should be attached to what Donald Walker placed in the document for Dr Chambers on 7 September 1993. Compared to him, his brother was no doubt in good health. At that time also, as Mr Meldrum pointed out, it was Marcus Walker who was the carer supporting both Donald Walker and his mother.

Donald Walker also gave evidence that his brother became obviously very ill in 1995. He said he went on a disability pension in 1996 but should have been on it a couple of years earlier. I accept that evidence.

• Marcus Walker's evidence of his "resilience". Defence counsel submitted that Marcus Walker was, on his own evidence, resilient for some time after the incident.

I accept his own counsel's submission, however, that what Marcus Walker said was that he was able to keep going to a degree for some time, and attended the needs of his mother and brother but that resilience declined over the years. As to the assertion that he was resilient for some time and the matters relied upon, such as his diligence in investigation, these can be translated into a description of a resilient person. That does not mean, however, that he was undamaged; the diligence shown is consistent with his preoccupation with the injustice caused, a feature of his psychological disorder.

• Date of first attendance on psychiatrists. Defence counsel also submitted that on the evidence Marcus Walker did not attend a psychiatrist, Dr Grainger-Smith, until 1998.

The evidence on that issue, however, points to the first contact being in 1996. Dr Pargiter gave evidence about a letter he received from Dr Grainger-Smith. The letter does not appear to have been tendered. He did, however, refer to it and initially said that it stated that the first attendance on Dr Grainger-Smith by Marcus Walker was in 1998. He then appeared to correct that to refer to 1996. That was Marcus Walker's evidence. He also saw a Dr Minter in 1995 about "case stress".[199] I note that it is common ground that Marcus Walker obtained a disability pension in 1996. In Grainger-Smith's letter it was apparently said that Marcus Walker was in a depressed and withdrawn state when he saw him.

In light of the foregoing, it is clear that he sought medical help in 1995 and psychiatric help not long afterwards.

• Dr Pargiter's evidence**.** Reliance is also placed by the defendants on the evidence of Dr Pargiter that when he first saw Marcus Walker in February 2001, he was reasonably neatly dressed and groomed, but that he became more decrepit during subsequent visits, with stained clothing and nearly always unshaven. Reference was also made to Dr Pargiter's evidence that the deterioration had reached the point where his chances of employment were slight to non-existent. Counsel submitted that the evidence pointed to a later decline over time from normal appearance.

1. In my view, an examination of all the evidence points to a significant deterioration in the psychiatric health of Dr Walker over time. No doubt it varied from day to day as it deteriorated. Dr Pargiter himself made the point that Marcus Walker's condition fluctuated. The issue is whether his exposure to the aftermath of the assaults on the night they occurred was causally connected to that deterioration. Dr Pargiter described it as the trigger. Plainly his psychiatric health did not immediately deteriorate in any noticeable way. But this was to be expected.

16.5 (E) CAUSATION: INITIAL LINK - CONCLUSION

1. In the first 12 months, there was an unbroken chain of events commencing with him learning of the assaults on the night. Marcus Walker was profoundly shocked and shaken on the night by what had happened. What occurred was not simply assaults and batteries on two people with whom he was very close. This was done by police in his brother's home. He believed that a grave injustice had been done. That sense of grave injustice was reinforced by subsequent events.
2. It is true he did not seek medical help until 1995.[200] He first saw a psychiatrist, Dr Grainger-Smith, in about 1996. By 1996 he was on a disability pension. Marcus Walker said that he had resisted seeing a psychiatrist for a long time after he should have started. He said seeing Dr Grainger-Smith was difficult, describing it like "a two edged sword" in that he needed to talk to someone but did not want to talk about these matters.
3. Accepting the foregoing, it does not detract from the proposition that learning of the assaults, and seeing their consequences, was the trigger for his psychiatric illness and, from the outset, caused a sense of serious injustice. The continuation of the sense of injustice worsened the problem. This accords with the assessment of Dr Pargiter referred to above.
4. The early profound shock and gradual deterioration was confirmed by Donald Walker's friend who was in contact with them both before and immediately after the incident, McRae. He saw the Walkers the day after the incident. He said that Marcus, like his brother and mother, was visibly shaken by what had occurred. In the case of Marcus Walker, he saw a marked change from the man he had come to know prior to the incident. He said he saw his decline, basically day by day. He saw him decline over the years, and progressively get worse .
5. I accept that there was a strong link between the initial incident and the development of Marcus Walker's psychiatric disabilities . The deterioration was not immediately noticeable but soon was. Within two to three years it had become significant. Over time his psychiatric condition continued to deteriorate and became severely damaged. Marcus Walker accurately described it as a process of attrition.

16.5 (F) INTERVENING OR TRUE CAUSES - DEFENCE ARGUMENTS

1. Counsel for the defendants also submitted that the true cause of Marcus Walker's psychological injuries was one or more of the following
   • A belief that an injustice was done
   • An immersion in the conspiracy theory
   • His mother's illness
   • His legal dispute.

Counsel submitted that they broke the chain of causation and, if they did not, were such that they should be regarded as the cause of the psychological injuries.

1. My analysis of the arguments advanced by the parties is set out in Appendix N (General damages claim of Marcus Walker). For the reasons there set out, I am satisfied that the matters listed were not isolated from the initiating causes and did not break the chain of causation. Rather they were interacting and perpetuating factors which were a direct consequence of and caused by Marcus Walker's exposure to the incident and the knowledge received on that night of the incident and the injuries his mother and brother suffered and their consequences. Further, it was Carter who was responsible for those injuries and consequences and he remained responsible over the ensuing 15 years.

16.5 (G) DEFENCE SUBMISSIONS ON CAUSATION - CONCLUSION

1. The principal issues raised by the defendants are whether the incident was a causal factor and whether other causal factors identified broke the chain of causation or whether, as a matter of common sense, they should be regarded as the cause or causes of the psychological injuries to the exclusion of the impact of the knowledge of the unjustified attack on and injuries suffered by his brother and mother. For the reasons set out above, and in Appendix N, I am satisfied that the incident and its immediate aftermath was the cause and that the other matters raised did not break the chain of causation or supplant the original cause. They were interacting and perpetuating factors which were a direct consequence of and caused by the knowledge Marcus Walker received on the night in question of the incident, the injuries his mother and brother suffered, and their consequences. Further, it was Carter who was responsible for those injuries and consequences and he remained responsible over the ensuing 15 years.
2. As a matter of common sense, the assaults and batteries committed upon Donald and Marcia Walker caused Marcus Walker's psychiatric injuries.
   • 16.6 ISSUES OF REMOTENESS OF PSYCHIATRIC DAMAGE
3. The parties accepted that, assuming that a cause of action existed and that causation is established, the plaintiff must establish that the injuries suffered were of a kind that was reasonably foreseeable.
4. Counsel for the second defendant submitted it was not a case where the defendants had any knowledge of any particular susceptibilities of the second plaintiff. That much may be agreed. But Marcus Walker's case is not put on that basis. Other matters were raised.
   • Failure to prove the elements of reasonable foreseeability. Counsel for the second defendant further submitted that to prove that the injury was reasonably foreseeable, the second plaintiff had to establish that the first defendant should have reasonably foreseen that he would immerse himself in the case on behalf of his brother, that he would become obsessed with the conspiracy theory developed over many years and involving many officers, or that his brother's case and the development of the conspiracy theory would become his raison d'etre leading to psychiatric damage. Counsel submitted that the obsession with the conspiracy theory was a self-destructive folly which overtook his life and lead to his social withdrawal. It was extreme and idiosyncratic.[201]

To the extent that this argument sought to define that which needed to be shown to be reasonably foreseeable, it ignores the common law test. What the plaintiff must establish as reasonably foreseeable is the kind of injury suffered not the precise mechanisms that caused it.

• Normal fortitude issue. In arguing the cause of action issue, counsel for the first defendant made submissions of relevance to the issue of remoteness. Counsel put that it was not objectively likely that Marcus Walker would suffer the reaction he did. He was a mature man of 40 years and was not confronted directly with a shocking event. But when he arrived he saw his mother in the back of an ambulance and spoke to her for between thirty seconds and one minute and he obtained information from her of some brevity as to what had happened and where his brother was. He then went into the unit and stayed there for between ten and fifteen minutes and took careful note of the state of the premises. He attended his mother at the hospital where she was treated, not in his presence, and he took her home with her arm in a sling. He was able to take photographs of Donald Walker's injuries on the Sunday morning. He went with his brother to the first consultation with the doctor. Again it is put there was nothing in these events that would make it likely that a person of normal fortitude would suffer nervous shock.

This is a bland, selective and minimalist description of what occurred. In particular, it fails to convey the drama of the events and circumstances with which Marcus Walker found himself confronted, involving the two people who were the closest to him and the most important in his life. It also ignores the evidence of Marcus Walker, which I accept, about his reaction at the time and that of the police officers who observed his behaviour. In any event, whether this reaction was "objectively likely" is not the test.

1. I accept the submission of counsel for Marcus Walker that the question is whether it was reasonably foreseeable that causing the injuries to Donald and Marcia Walker would also cause a close and loving relative to suffer "an adverse psychological reaction to the infliction of those injuries".[202] A person in the position of Carter should reasonably foresee that any person who was close to Donald Walker and Marcia Walker would be likely to be shocked, horrified and shaken by what had happened to him and the injustice of it, particularly when they discovered that the damage was inflicted by the police. Our sense of security in our community depends in large measure on a belief that there is a system of law on which we can rely, that the police are there to enforce the law and that we can rely upon the police to comply with the law and protect us. That sense of security was destroyed for the Walker family by the police action in what they would, like all of us, have seen as their most secure place, the home. It was reasonably foreseeable that a close and loving relative would suffer psychiatric injury in such circumstances.
2. It is very easy to be cynical about such matters - but a person in Carter's position should have reasonably foreseen that the impact of his actions could be psychiatric injury to a close and loving relative of the actual victims of the assault.
3. If more is required, it may be said that a person in Carter's position should also have reasonably foreseen that, if appropriate action was not taken immediately to remedy the situation by accepting responsibility, any adverse psychological effects were likely to be worsened.
4. For these reasons I am satisfied that Marcus Walker's psychiatric injuries were not too remote.
5. I turn now to the issue of Marcus Walker's general damages. I will first outline the submissions of the Plaintiff and the Defendants on the issue. I will then examine the evidence and arguments put forward by each party.
   • 16.7 GENERAL DAMAGES - ASSESSMENT

16.7 (A) PLAINTIFF'S SUBMISSIONS ON GENERAL DAMAGES

1. Counsel for the plaintiff submitted that Marcus Walker should be awarded compensatory damages in the order of $250,000 - $350,000. Counsel submitted that Marcus Walker is as destroyed emotionally and physically as if his capacities had been surgically removed, because his psychiatric damage has prevented him from utilising those capacities.
2. Counsel cautioned on the need to guard against what he described as the lack of real empathy and the cynicism which many have towards people who cannot point to physical injury as the cause of their lost capacities, but point to psychiatric injury. Counsel argued that that sort of reaction is only made more likely where the person concerned is a loving and caring son and brother. Counsel argued, however, that people are not intellectual machines and their behaviour is a complex interaction of the intellectual and the emotional. Counsel spoke of the reality that the mind can be overborne by depression, anxiety or panic attacks.
3. Counsel submitted that in many ways Marcus Walker has been more injured than his brother Donald who still has a career, albeit damaged, and the elements of a social life, albeit confined.

16.7 (B) DEFENCE SUBMISSIONS ON GENERAL DAMAGES

1. Counsel for the first defendant submitted that any award of general damages for Marcus Walker should not exceed $75,000. Counsel for the second defendant agreed with that submission. He referred by way of support to an award of $85,000 in the matter of State of Victoria v McIvor [2005] VSCA 50, where it was established that the plaintiff had suffered an adjustment disorder with anxiety and depression and indications of post-traumatic stress disorder and feeling of inferiority, humiliation and embarrassment. The court in that case had considered the plaintiff had suffered a chronic psychiatric deficit of moderate to moderately severe intensity and would be likely to remain at that level permanently. The court held that an award of $85,000 was neither manifestly excessive or manifestly inadequate. Counsel for the second defendant submitted that Dr Pargiter's evidence suggests a somewhat better picture and prognosis than Mr McIvor's.

16.7 (C) PRE-INCIDENT HEALTH AND LIFESTYLE OF MARCUS WALKER - LAY EVIDENCE

1. I accept the summary of the evidence by counsel for Marcus Walker. Counsel referred to Marcus Walker's achievements in science and his obviously considerable intellect. While acknowledging that for the period from 1988 to 1993 he had not continued with his scientific career, counsel submitted that he had not abandoned it but had simply applied himself with great endeavour and ability to developing business opportunities which he had enjoyed very much. The incident resulted in him losing the pleasure and satisfaction of engaging in scientific pursuits and the academic and business life.
2. Counsel submitted, Marcus Walker was a gifted scientist. Throughout his life he had displayed a very strong work ethic. He had grown and sold vegetables at the age of 10 and worked regularly on a dairy farm at the age of 12. He picked fruit at the age of 14, graduating to being put in charge of a shed at 15 where the fruit was graded and washed. While at university in Tasmania, he worked at a 40 unit motel delivering breakfasts and so impressed the manager that he was put in charge of the motel units for three months while the manager took some leave. Before taking up his PhD scholarship at the University of Queensland, he spent a year working in construction works relating to a divergent tunnel and water trading planned for a township of some 2000 people. He finished up in a supervisory position.
3. I accept counsel's submissions that Marcus Walker's school and university record was outstanding**.** He was obviously gifted scholastically and intellectually. Before the incident his memory was acute. He remembered things very easily and readily absorbed matters in his scientific field when reading.

1. Marcus Walker was very gifted athletically. He was skilled in a number of sports such as golf and tennis which he had enjoyed, particularly as a young man. He was still playing social tennis in 1993. He greatly enjoyed and was very good at skiing (and had engaged in it in the years prior to the incident in USA, Australia, Europe and New Zealand). He had obtained his qualification as a ski instructor at the age of 37 not long before the incident. He did so to hone his skills. He last skied in the 1992 season at Mount Hotham. He enjoyed swimming and running. As a young man, for example, in 1979, he swam a mile and ran five miles each night in Queensland where he was working. In America on the day before he returned to Australia, he jogged down to the bottom of the Grand Canyon and returned to the top in the dark - a 42 km round trip. He had kept fit by running about 5 miles with his then girlfriend who was a very good runner. He had run in 3 one-half marathons in America. In Tasmania he had rowed in a four and in America he took up sculling. When he returned to Australia he returned to bushwalking, mainly in Tasmania. He enjoyed bush walking, in particular, by compass off the beaten track, and fishing and kayaking. About a year prior to the incident he went kayaking down the Mitchell River. He said that in the twelve months prior to the incident he was doing bush walking, skiing and kayaking. He said that was the main thing keeping him fit. All these activities he had greatly enjoyed. He said it was very important to him to be fit, to have physical fitness. McRae described him as fit and athletic before the incident.
2. I accept counsel submission that Marcus Walker had been physically active at high-level right up until the time of his injury and would have continued to do so notwithstanding the inevitable ageing processes**.**

1. Marcus Walker had taken a great interest in photography in the past, commencing when he was quite young. Up to the incident he used to carry a camera and would take photos if an appropriate subject presented itself. He was interested in the artistic side of it. He had had a great interest in gardening and established a garden in Tecoma approximately six years before the assault**.** He took a detailed and scientific approach to his gardening. Prior to the incident he had worked in it most days.

1. I accept that prior to the incident Marcus Walker was resilient psychologically. He had in the past and prior to the incident suffered iritis twice. This was associated with stress but he recovered from it quickly. He said that he generally relished periods of prolonged intense and stressful circumstances prior to the incident and did not recall being stressed about anything particularly before that time.
2. He had received no psychiatric treatment prior to 1993. I accept his evidence that he did not have any emotional liability in him before the incident and that he had emotional capabilities and cared about people. He was never someone who was depressed or miserable. He used to shed a tear at the movies. He could not recall being depressed before the incident. He could not recall having dreams or nightmares with any frequency before the incident. His only physical problem had been ankylosing spondilitis which caused slight problems on occasions.

1. Before the incident, he had a very active social life. He got great pleasure from cooking. His functions range from the small and intimate to the large. He enjoyed a normal appetite and got pleasure from food.
2. He mixed very comfortably with strangers. He had no difficulty in going out and into open or crowded places like shops or supermarkets or going down the street.
3. Before the incident he dressed casually, but not shabbily. He was careful with his personal hygiene.
4. Prior to the incident his libido was active. He had had relationships with women which had lasted for some length of time. He had considered marriage but had not committed to doing so. It was not his intention to live as a bachelor. He had hoped to raise a family. He said in response to cross-examination that he did not have a partner at the time his mother was injured. He said he had had female friends who had stayed overnight since 1993, but no female partners. Prior to the incident and after his mother was diagnosed, he had had partners living at Tecoma.

16.7 (D) IMMEDIATE AND LONG-TERM EFFECTS OF THE INCIDENT ON MARCUS WALKER

1. The evidence of Donald Walker's friends, McRae, Williams and De Cesare, describes Marcus Walker's decline.
   • McRae He said that before the incident Donald Walker was fit and athletic. He saw him after the incident. He saw his decline day by day. He described him as ruined.

During a visit some six months earlier in late 2006, Williams observed Marcus Walker shaking, lonely, not really wanting company. He wanted to hold him still (1383). He was shocked to see the extent to which he was smoking. He did not know how to help him and felt that Marcus Walker was a destroyed man. He said it was nerve-wrecking for him to see Marcus Walker like this, because he liked him very much. He spoke of a conversation in which Marcus told him how he feels he is alone and that the case had ruined his life. He said that Marcus felt he had nowhere to go. He said they were both a bit teary.

• Williams He did not see Marcus Walker for approximately two years after the event. He said that when he first saw Marcus Walker on his return, he didn't really notice much difference. He said that it was a social situation and "there was perhaps a little bit of a front up there". After that occasion, however, he had spoken to him on a one to one basis and he noticed Marcus Walker had changed. Williams said he was a shadow of his former self. That was unlikely to have happened overnight. He was a lot more nervous and his bearing had changed in that he was not standing as upright as he had been. He was smoking quite a bit. Williams also said that he saw Marcus Walker deteriorate further as time went by. Williams observed him chain smoking, and exhibiting nervousness and shaking .

Referring to visiting him in Tasmania on several occasions, he talked about the difference in the standards of maintenance of the house and garden. He said that Marcus did not have the energy. He spoke of the time he spent in working on the case doing research work.

Approximately two weeks prior to giving his own evidence, Williams saw Marcus Walker again. On that occasion, he said Marcus Walker was as close as anyone he had seen to having a nervous breakdown or heart attack. He also said that the last time he had seen him was when he had visited in the preceding week in the hospital, where Marcus Walker still remained.[203] He said as to shaking, it had not been earlier to the same extent as that which he had observed in the last month. He said that over the last few years he has seen shakes and tremors.

• De Cesare De Cesare got to know Marcus Walker quite well before the incident. He did not see him after the incident until about 1998, although they had been in touch by telephone. He noted initially that Marcus Walker's hair had gone virtually grey. He had had a big shock of black curly hair. He was living in Tasmania. The garden was overgrown and shambolic, nothing like the garden De Cesare had seen in Tecoma. He was stooped over, nervous, shaking and smoking a lot of cigarettes. De Cesare said he was quite shocked when he saw him. He said he had a couple of trips to Tasmania for two and three weeks at that time. He had cause to check the pantry, which appeared to be well stocked, but it was found that 80% of the food was past its use by date and had to be thrown out. He spoke of his visits being a godsend to Marcus because he could not go out, and often had trouble going to the supermarket because of anxiety. He had not seen an anxiety attack, but had seen him after an anxiety attack when he was uncontrollably shaking and like a little boy not able to cope or comprehend or understand what was happening to him and why. He also noticed that he was drinking Scotch Whiskey and sometimes smelt alcohol on him as early as 10 o'clock in the morning. He said the house downstairs where he lived was pretty messy.

Depression, sleeplessness, tremors, shaking and loss of self-esteem

1. He said that about a week after the incident he had strange dreams where he would find himself in dangerous situations and the culprits would hold out their hands to help him. He said that, every couple of nights, for a few years, he had bad dreams at least once every two nights. He said there is one particular theme that stands out in which he is amongst people. He said it has been very common for some dreams to wake him up. When that happens, he cannot go back to sleep. In the last six months, he has slept on the floor, as was the case in the first six months after the incident. He said what troubled him about going into his bed was the darkness. He sometimes finds it soothing to go to bed with something like the television on or the radio, just so there is a bit of noise.
2. He referred to the problem he has with a tremor. It first occurred about two years after the incident. About four years after that it got to the point where he had to at times hold the hand with the glass or fork. He did not have that before the incident. He said it had affected him slightly in the witness box handling pens and papers and he said it was less on that particular day than most. He says it never entirely disappears. At worst he is unable to take a glass of water and get it to his mouth. To bring food on the fork to his mouth he might have to hold one hand to get it into his mouth and often it falls off. He said that at least once or twice a year it becomes that bad. He said it especially happens when he has had to look at material relating to the incident.
3. He said that depression is now part of his daily existence and he feels miserable. Tearfulness is part of that. He said he did not feel he had much compassion for sad situations as he should have and did not have the emotional energy to assist where once he did. He said that what happened with him now was not so much crying but an uncontrollable release. He said he knew it sounded indulgent, but it can happen when he reflects on how life was and now. He said he wonders now whether he has a life at all and that will bring a tear. He referred to a pre-occupation with the contrast with how his life was compared to the attritional deterioration that has occurred from that night and the shock to him on that night. He said he was resilient for some time but that declined over the years and that also was depressing. He commented that the two individuals who were injured were his sole surviving relatives. He said he still finds thinking about the events very unpleasant because of the injustice of it.
4. Marcus Walker said that he avoids looking at himself in the mirror because if he sees himself naked he feels very vulnerable. He believes his posture is badly affected. He was proud of it before. He now finds it very difficult to walk properly or hold himself as he feels he would prefer to. Since the incident he has not taken the same care over his appearance. He rarely purchases clothing, he does not shave as often as he should and does not attend to his personal hygiene as he should.
5. He has suffered from shaking which varies and it is very hard to explain what causes it. He finds it happens when asked to attend to something particularly associated with the case but also with other things such as paying a bill. He finds that it will cause him problems.
6. He said that he finds himself perspiring when others are obviously comfortable and the awareness of that exacerbates the condition. He said he also experienced what he called fragility, at some time everyday, by which he means a lack of stability, for example, when walking.

Anxiety, handling stress, intellectual abilities and motor movements

1. He says he now handles stress very badly. He said that at the previous weekend he had had an experience that he had had on occasions before, where he could not stand up straight, could not direct where his walking was going and was shaking uncontrollably and could not speak properly. Asked what seemed to bring that on, he said that it was all the associated worries relating to the entire matter; the sickening violation that had occurred in the first place, the never ending reminder of it from the very first night it happened. He said it was there the whole time. He said he did not have a day when he did not think about it.
2. He has difficulty starting and finishing intellectual tasks. He used to read books in a wide range of areas. His capacity to read and absorb information has been severely diminished. He said that he has now taken a particular interest in cryptic crosswords and they have replaced, in general, things that he might otherwise have been interested in. He said he just does not have the capacity to care. He said that with his memory problems now he writes notes. He did not do that before. He also said that it may on occasions take a week for him to open mail and this has been the situation for some time.
3. He denied any contradiction between his evidence of a decline in memory and his ability to recall matters in the witness box. He said, for example, that his ability to list the countries where he had skied was a situation where he was recalling a life-long passion. It was not an area of memory that had been affected.
4. He says his thinking since the incident is much slower with just about everything except cryptic crosswords. He said his motor movements, such as movements of dressing and eating, are much slower. He said this has been the case for about eight years and that it is attritional.

1. As to his social life he said it was virtually non-existent. The only social contact he has is essentially when he goes shopping. As to open spaces and people, he said he does have difficulty walking down the street and that he avoids looking at people. He does that because he sees a lot of normality and people with purpose and people who are able to afford fairly basic things which he struggles to do. His appetite is poor and he gets no pleasure from food.
2. He does not relate socially with many women. He does not have the emotional energy he once had to put himself in a position where that normal interaction might occur. His libido is absent. He rarely obtains an erection. When he does, it is not sustained. He said his diminished libido is of maximum significance to him. He said he is still hopeful of a relationship and children.
3. He has had one relationship since the incident. It commenced in about 2001. It included the opportunity for co-habitation under the one roof. It ceased in about 2005. He said that at the commencement of the relationship his libido was in decline and it was absent by the end of the relationship and had been absent for two years prior to that. At the start of the relationship they socialised once or twice a week and that level lasted for about four years. At the end of the relationship they were doing no socialising as a couple. He said the reason why the relationship fell away was the decline in his libido.[204] He said that there was no decline with long term friends apart from a guilt complex on his part - guilt for giving them concern about him .
4. At one point he said the courtroom was not a lonely place, it was a crowded place compared to where he had spent most of his time for many years. He said in his home if he is not playing his guitar, he would probably spend the entire day talking to no-one, and if he manages to talk to someone, he is often exhausted after ten minutes. He said that talking for the length he had been talking in the witness box was an ordeal.

1. Following the incident, some 10 years ago, Marcus Walker bought a kayak in which to fish. He thought it would be therapeutic and help his fitness. He has not used it since 2002 and had used it about a dozen to fifteen times prior to that. For the last 6 years he did not seem to have the energy to put it on the car and go fishing. This has been his only exercise. He has not engaged in fly fishing since the assaults, something which he had loved. Following the incident he lost the required patience and lost not only his previous passion for it, but also all pleasure in it.
2. In relation to his gardening**,** Marcus Walker was unable to maintain the garden at Tecoma after the incident and this inability to be involved in something he had enjoyed so much continued when he went back to the family home in Tasmania in 1997, until his mother's death in 2001. When he returned there, the home was in good condition but it is now appalling. At these premises he has only been able to maintain a small but insignificant herb garden.

1. Despite the apparent loss of interest in activities previously enjoyed, Marcus Walker testified he has some pleasures which he describes as therapeutic.
   • Repairs and woodwork For some time now, for example, he has been finding some therapeutic pleasure in repairing old things such as an Abbott's buggy. He has also worked with wood building many shelves and cupboards and desks. He has restored chairs.
   • Playing the guitar Before the incident he played the harmonica and guitar. He now plays only the guitar. He plays primarily for himself, but has had an audience of two on a couple of occasions. Asked about why he gets pleasure from it, he said many weeks go by in his life when he does not hear anyone else's voice unless it is on television, radio or the phone. He said even if he is playing his guitar and even if it is only his voice, at least it is satisfying to him..
   • Motorcycle Another activity that gives him pleasure is riding his motorcycle. He began riding the motorcycle eight years after the incident.[205] He would ordinarily ride it on his own once every two days at least. A typical journey would be to the post office for something or popping into town for something. Another route would be the lovely rides near Hobart. He said it is one of his very few pleasures and one of his greatest pleasures at the moment. Asked why he had not included riding the motorbike in his hobbies in parts of his interrogatories, he said that it might appear to be a minor distinction to make, but he saw it as a pastime and a therapy. He did not see it so much as a hobby because he did not have a lot of money and the motorbike was cheaper to run than the car. He uses it when he needs to get out of the house, and he did not think that was a hobby. He said he knew it might seem like splitting straws, but it was less of a hobby than a therapy or a pastime for him. He was asked to explain how it is that he is able to revel in the joy of motorbike riding but finds there is an emotional barrier to doing a few laps in the pool. He says he is completely at ease on the motorbike. He said motorbike riding took him away from day-to-day, from the misery of his day-to-day existence. He said he actually relaxes when he is on a motorbike, but in essence he treats it as a means of transport. He said there was usually the getting from A to B aspect to it.

1. Dr Pargiter expressed the opinion that Marcus Walker would continue to need counselling and supportive psycho-therapy and, from time to time, anti-depressant medication. He also stated that having regard to the

"chronicity of his condition, the prognosis for a return to his pre-morbid condition is very guarded, but a better adjustment with a possible return to some earning capacity does depend upon the outcome of his legal case."

1. In subsequent reports, on 21 November and 26 November 2007, Dr Pargiter noted that following Marcus Walker's return to Hobart in July 2007, he was not seen for four months. Appointments were made but were cancelled or postponed, mainly because he was too ill to attend. He stated that he was able to review his progress on 1 November and had seen him on two occasions since that date. He commented that Marcus Walker remained substantially the same as when he was hospitalised in Melbourne,[206] in that he was "chronically anxious, tremulous and, of course, absolutely pre-occupied with the case in hand". He reported that he continued to need anti-depressant/anxiolytic medication. He noted that he appeared to gain considerable support from his "social circle",[207] but nevertheless led an isolated life. Dr Pargiter did not expect a great deal of improvement until the court case was settled. Dr Pargiter confirmed that there was a mixture of anxiety and depression, needing treatment with heavy doses of anti-depressants. He also commented as to the prognosis that he thought it more likely than not that whatever the outcome of the case, there would remain significant psycho-pathology, although not at the same level as was existing at that time because there would be no concern about meeting deadlines.

16.7 (F) DEFENCE ARGUMENTS REGARDING MEDICAL AND LAY EVIDENCE

Marcus Walker's condition not as dire as he claims

1. The first defendant argued that Marcus Walker's condition was not as dire as he claimed (para.145 and following of White Folder). Particular items of evidence were identified:

1. Counsel referred to the evidence that in 1993 Marcus Walker had a female partner and that between 2001 and 2005 he "cohabited" with the lady named Pamela.
2. As to that relationship with Pamela, they maintained their own accommodation and in that five year period his libido and ability to socialise declined. The fact that he is "still hopeful" of a relationship and children tells us something about Marcus Walker and his hopes but also highlights his losses.

1. Counsel referred to his pleasure from his guitar and motorcycle and the kayak. They appear to provide pleasure for him. No other pleasures were identified.
2. He has not, however, derived any pleasure from the kayak in recent years. The guitar and motorcycle provide pleasure but they are solitary and the pleasure that is engaged in therapeutic in nature.
3. In cross-examination, counsel sought Marcus Walker's agreement to the proposition that, rather than having a pathetic life as suggested by Mr Meldrum, he had not lived a reclusive, solitary life devoid of relationship with others, devoid of hobbies and devoid of a good place to live or the necessities of life. After some further discussion Marcus Walker responded that, without exaggerating, he did not know if there would be many people who would have endured the misery that he had endured in spite of the pastimes mentioned. He said that, without exaggeration, he lived in absolute misery and extreme loneliness.
4. The defendant's efforts have not succeeded in altering the picture painted by Marcus Walker. I am satisfied that it is accurate. It accords with what Donald Walker's friends have described. The evidence of Marcus Walker and his brother's friends should be accepted.
   • 16.8 ASSESSMENT OF EVIDENCE - CONCLUSION
5. The full enjoyment of all aspects of life by Marcus Walker and his physical and mental condition before the incident is to be compared with his present situation. He had for many years excelled in and enjoyed the academic world and a variety of sporting activities. He obviously enjoyed using his considerable intellect. His life had been full of achievements. As to his sporting activities, at the time of the incident he was enjoying skiing, bushwalking, fishing and kayaking. He had an active and enjoyable social life. He had enjoyed several relationships with women and he saw marriage and a family as a part of his future. He greatly enjoyed gardening and cooking. He had actively enjoyed photography. As his counsel submitted, he had led a very full and enjoyable life prior to the incident.
6. He had coped well with stress in the past and had generally enjoyed very good health. He did not shake or have a tremor. He is currently a shadow of his former self in all these areas and what was a full and enjoyable life is now miserable.
7. The deterioration has been gradual. He sought medical help in 1995 and psychiatric help in 1996. Williams saw him for the first time about two years after the event - 1995 - and described him as a shadow of his former self. When De Cesare saw him for the first time after the incident in 1998, he noted that his hair had gone from black to grey. He was living in a shambolic state. De Cesare was shocked when he saw him.
8. By 2001 when seen by Dr Pargiter for the first time, he was in a state of chronic illness with symptoms of depression, emotional exhaustion, dizziness, reduced concentration, dyspnoea, inertia, misery, insomnia and social withdrawal, poor appetite, low, unresponsive movement, psycho-motor retardation, morbid thought. At that stage he would seem to have had a full blown adjustment disorder coupled with depression. At that time anti-depressants were tried but were not particularly successful. He was helped more by counselling and what Dr Pargiter described as "ventilation" - referring to some satisfaction being obtained from talking to Dr Pargiter's secretary. He has been under treatment since then by Dr Pargiter.
9. There is little or no pleasure in his life, and the few activities he engages in are mainly for therapy. Between 1996 and 2002 Marcus Walker attempted to engage in kayaking and initially succeeded, but that stopped. He could not find the energy to do it. For many years he has led an isolated life. In 2002 he entered into a relationship with Pamela. It, however, did not last and only confirmed the loss of libido and his social difficulties.
10. For him, understandably, it seems that his life is ruined. This situation gradually developed over the years but it appears that he has been in an abject state for close to 10 years.
11. Counsel for the first defendant sought to paint a positive picture for the future. While noting Dr Pargiter's pessimistic view, Counsel drew attention to the evidence of McRae that it was the case that was standing in the way of Marcus Walker's recovery.
12. As to the future, Dr Pargiter in his 30 April 2004 report, referred to the possibility of improvement in Marcus Walker's psychiatric condition following the conclusion of the proceedings. He said that his report of 30 April 2004 accurately set out his opinion as to his prognosis at that time. He there stated the following

"Considering the chronicity of his condition the prognosis for a return to his pre-morbid condition is very guarded, but a better adjustment with a possible return to some earning capacity does depend upon the outcome of his legal case."

1. Past, present and future pain and suffering and loss of enjoyment of life must be addressed.
2. After giving evidence Marcus Walker suffered a major collapse and was hospitalised. I refer above to the evidence of his friends as to their observations and concerns. When Dr Pargiter saw him on 21 November 2007, he reported that he remained substantially the same as when he was hospitalised in Melbourne; namely "chronically anxious, tremulous and...absolutely preoccupied with the case in hand". He was continuing on anti-depressant/anxiolytic medication.
3. As to the future, plainly the successful conclusion of the case has the potential to benefit him considerably. He has faced the problem for many years of having to think and prepare for the case and, as a result, he has been constantly reminded of what occurred and the injustice of it. He has not been able to stop thinking about it. The opportunity will now be there for him to stop thinking about it. Should he think about it, the opportunity will be there for him to focus on the success he and his brother have had, in spite of the many obstacles they have had to face. He can take pride in his capacity to press on and play his part in the litigation without succumbing to his depression and other disabilities. His ability to do so, notwithstanding his subsequent collapse, gives some cause for optimism.
4. But due weight must be given to the views of Dr Pargiter, who knows him and his condition well and has the expertise to judge these matters. Dr Pargiter's assessment is critical. He sees a successful conclusion of the case as a significant and potentially positive change, but he is very guarded about future prospects. Dr Pargiter expressed the opinion that Marcus Walker would continue to need counselling and supportive psycho-therapy and, from time to time, anti-depressant medication. Thus, while there should be some improvement in his quality of life because of the removal of the stress of the litigation and the confirmation of the rightness of their cause, damages should be assessed on the basis that the chances of any significant improvement in his psychological state are minimal.
   • 16.9 QUANTUM OF GENERAL DAMAGES FOR MARCUS WALKER
5. As noted above, counsel for the second defendant referred me to the case of State of Victoria v McIvor & Ors[208] for comparative purposes. In that case the plaintiff was awarded general damages of $85,000.00 in respect of an incident that occurred in 1999. In that case, Callaway JA held that the award was not manifestly inadequate and that "even less" could it be said to be manifestly excessive.[209] In Mr McIvor's case his future in some respects was more bleak than that of Marcus Walker because he was already suffering from a psychiatric illness at the time of his arrest. It appears, however, that the defendants did not establish with the precision required what the future effect of the pre-existing condition was likely to be.[210] Another difference was that the plaintiff in State of Victoria v McIvor & Ors[211] was significantly older than Marcus Walker, being aged 60 at the time of the judgment. The time sequence and age in that case meant that the plaintiff was being compensated for four years of pain and suffering and loss of enjoyment of life in the past and for a future which would run from age 60. Marcus Walker is to be compensated for fourteen years of pain and suffering and loss of enjoyment of life in the past and a significantly longer period in the future.
6. Another comparison that should be considered is that of Marcus Walker's losses and situation, when compared with Donald Walker's losses and situation. A significant difference is the absence for Marcus Walker of the physical pain which Donald Walker has had to endure since 1993 and which has significantly worsened requiring morphine. Views may differ but for that reason, it seems to me that any award of damages for pain and suffering and loss and enjoyment of life that Marcus Walker receives, should be less than that given to Donald Walker.
7. Marcus Walker has been suffering for many years from a severe adjustment disorder and depression. For many years it has been profoundly disabling and has made his life a misery. Even Dr Sale has conceded the seriousness of his circumstances. His future life will be relieved from past stressors which have been a factor in his condition, and to that extent his quality of life should improve slightly. The weight of the evidence, however, is that he has a minimal prospect of any significant improvement in his psychological state. He is now in his fifties and faces, on the evidence, a real prospect that the rest of his life will be as miserable as it has been for many years because of the psychiatric illnesses that have developed. Taking into account for the future the seemingly remote possibility of improvement and the vicissitudes of life, I have come to the conclusion that reasonable compensation for past and future pain and suffering and loss of enjoyment of life would be $200,000.

SECTION 17 GENERAL DAMAGES CLAIM - ESTATE OF MARCIA WALKER

1. In the claim brought by Donald Walker and Dr Marcus Walker as executors of Marcia Walker's estate, the particulars of injuries pleaded in the Statement of Claim are:
   • Dislocation of the deceased's shoulder and injury thereto;
   • wasting of muscle;
   • Post-Traumatic Stress Disorder;[212]
   • anxiety and depression;
   • severe ongoing pain;
   • shock;
   • general bruising and abrasion.
2. Counsel for the plaintiffs submitted that an award of general damages of $100,000 to $150,000 would be reasonable**.**
3. It is conceded for the defendants that if liability is established, general damages should be awarded for the injuries suffered and the associated pain and suffering. The first defendant submits that damages of no more than $15,000 would be appropriate with interest of $1,430. The State of Victoria submits that if liable to Mrs Walker, general damages should be no more than $30,000.
   • 17.2 MARCIA WALKER'S LIFE AND HEALTH PRIOR TO THE INCIDENT
4. I refer to the account given above of Marcia Walker's life and her health prior to the incident, including the effect upon her of her polymyositis
5. At the time of the incident, Marcia Walker was 68 years of age. I accept counsel's submission that prior to the incident she was living independently in her unit and led an active life. Counsel emphasised the critical importance of independence to the quality of our lives. She was doing all she could to maintain her independent condition. Prior to the incident she was receiving hydrotherapy about three times a week. That and the physiotherapy had helped to keep all her muscles moving. She had been receiving it for about two years prior to August 1993.
6. The first issue is the immediate impact of the injuries Marcia Walker suffered and the pain and suffering associated with them.
   • 17.3 IMMEDIATE EFFECTS OF THE INCIDENT

1. Plaintiffs' counsel submitted that Marcia Walker suffered the considerable pain and discomfort of the dislocated shoulder and this continued for some months.

1. Counsel for the defendants relied upon the absence of medical evidence to support the conclusion that the resolution of the shoulder injury was probably uneventful and complete within a few days of the incident. Referring to the injuries themselves, counsel submitted that the injuries suffered were to her hand and to her right shoulder. Counsel submitted that the shoulder was re-set with local anaesthetic and painkillers. Counsel also noted that the ambulance records did not refer to any abnormalities.[213]

1. Marcus Walker gave evidence that his mother was in agony and in tears at the hospital. There was other evidence. The hospital record refers to her on both admission and examination as being in pain and shaken. In addition, there is Marcus Walker's evidence about his observation of his mother in the ambulance and the obvious pain. McRae described her as being very distressed by her shoulder injury.
2. Marcus Walker also gave evidence that, compared to the six months prior to Christmas 1992, there was an extreme difference in the sudden and considerable deterioration that occurred between the incident and Christmas 1993. His evidence was that because she could not continue her hydrotherapy and attendances at Cedar Court, she deteriorated very quickly. The above evidence should be accepted.

1. The evidence pointed to Marcia Walker being in considerable pain and shock. The result of the incident was that she was confined to her bed for some nine weeks. The immediate pain and suffering cannot be easily dismissed.
   • 17.4 LONG-TERM EFFECTS OF THE INCIDENT - ACCELERATION OF DETERIORATION

1. Regarding the long-term effects of the incident on Marcia Walker, counsel for the plaintiff's raised the following issues in respect of which compensation is sought.
   • The alleged acceleration of the physical weakening associated with her polymyositis;
   • The alleged distress associated with her observation of the assault on her son Donald and her observation of the deterioration in the health of Donald and Marcus in the years that followed the assaults.

17.4 (B) ACCELERATION OF MARCIA WALKER'S LOSS OF INDEPENDENCE

1. Counsel for the plaintiff submitted that the major "scars" were the acceleration of her physical deterioration and its consequences. Counsel stated that it was not being put that the incident and its consequences hastened her death. Counsel submitted that, as a result of what occurred to her that night, however, she prematurely lost her independence and never recovered it.
2. Counsel submitted that as we get older our independence becomes more and more precious. As a result of the incident, Marcia Walker lost what was left of her independence and was unable to enjoy the active life that she had previously enjoyed.
3. Counsel maintained that, immediately following the incident, Marcia Walker was confined to her bed for a significant period and unable to maintain her therapy programs. When the sons' friends visited her after the incident, it was they who made the tea and took it to her in her bed. She became more and more ill. She was extremely frail. Her grip was weak. Subsequently she used a commode chair.

1. Counsel on behalf of the first defendant criticised the case advanced for the estate on the basis that no medical evidence was led by the plaintiffs concerning Marcia Walker's condition in 1993 or subsequently.
2. Counsel then turned to the medical condition which he submitted had dominated the evidence relating to the estate claim - her terminal, degenerative and pre-existing condition, polymyositis. Counsel submitted that the evidence of her Tasmanian general practitioner, Dr Thomson, was that her condition had deteriorated between 1987 and 1990**.**[214] Counsel noted that at the time of the incident Marcia Walker was suffering Thenar wasting and Carpal Tunnel Syndrome in her left hand and forearm and was unsteady on her feet. Counsel submitted that by the time of the incident, her condition was probably quite debilitating.
3. As to whether the injuries suffered in the incident exacerbated the condition, counsel submitted that they did not, save for interrupting nine weeks of her ability to undertake hydrotherapy. Counsel submitted that there were no enduring consequences. Counsel argued that in the period she had other aids to assist with her condition, such as compressible balls**.**[215]
4. Counsel for the first defendant also referred to a table of medical statistics and readings kept by Marcus Walker from various doctors. Counsel submitted that two pages related to the period from November 1991 to April 1995. Counsel sought to attach significance to the fact that there was no reference to the incident of 15 August 1993 in that table even though the table recorded a virus in an entry between 8 April 1993 and 23 June 1993. I note that the purpose of the documents appear to be to record the results of blood tests from time to time. In that context it might well have been relevant to record a virus. In my view there was no reason to record the incident and no significance should be attached to the fact that the incident is not referred to in that document.
5. Generally, counsel submitted that it was probable that the incident had no lasting effects on Marcia Walker and there was no evidence that it had hastened her death. Counsel pressed the submission that, in the context of Marcia Walker having lived for a further 7½ years after the incident, the impact of the injuries sustained on 15 August 1993 was relatively modest.

Second defendant's submissions - the evidence of Dr Thomson

1. Counsel for the second defendant submitted that it was not clear whether the injuries had in any way accelerated the deterioration that would have occurred because of the polymyositis suffered by Mrs Walker. Counsel referred to the evidence of Dr Thomson, the general practitioner who attended Mrs Walker from 1987 to 1990 in Tasmania. He said that he was not sufficiently expert to comment on her prognosis beyond the time when she was his patient. I note, however, he was asked in re-examination as to the extent of treatments like hydrotherapy and physiotherapy might impact on the rate of progress of the condition. His response was

"It would improve functioning and the quality of life to have physical treatment like that".

1. Counsel also submitted that there was no evidence to suggest that physiotherapy and hydrotherapy did not resume, although he accepted that it was interrupted during her nine week convalescence after August 1993. Counsel also criticised the absence of medical evidence from her treating rheumatologist or other experts. Counsel submitted that in the circumstances no conclusion could be drawn as to what would have been the timing or the extent of her physical deterioration and loss of independence after convalescence in the absence of the events and therefore, whether the events hastened the progress of her disabilities.

1. Counsel for the plaintiffs submitted that Dr Thomson had indicated that the polymyositis affected all four limbs and Marcia Walker was also complaining of difficulty with swallowing. Generally, counsel for the plaintiffs conceded that there was little help to any of the parties from the evidence of Dr Thomson of an expert nature as to whether and to what extent the events of August 1993 accelerated her deterioration.

Lay evidence regarding acceleration of deterioration

1. Donald Walker stated that after spending nine weeks bedridden and being looked after by his brother, his mother did not return to living on her own. She either lived at his place or his brother's place.

1. Marcus Walker's evidence was that he cared for his mother full time on her return to her unit and when she moved to Tecoma three days later. He said that for some six months after the incident he had to help her generally with her dressing, particularly with her arm. He said she accepted such assistance gracefully**.** After the incident she proceeded quickly to using two walking sticks and then a walking frame and other things in the home such as rails.
2. After the incident, Marcus Walker said that there was an extreme difference in her, comparing what she was like at Christmas 1993 and Christmas 1992. In Christmas 1992 she was light hearted as usual, despite her condition. He said that the Christmas at the end of 1993 was far less celebrated. He said that the greatest impact on his mother's condition was the 9 weeks when she could not continue her hydrotherapy or Cedar Court. Her muscles deteriorated very quickly during that period.
3. After the incident she started to write less in cursive form and often wrote printing in capitals. As time went by, her writing became very shaky. After the incident she lost the energy and lost her interest for reading and lost her interest in things with deeper relevance.
4. She did not sing after the incident. There was no evidence that she played the piano after the incident. Marcus Walker's explanation was that they did not have a lot to sing about.
5. There were things she would manage and things she would prefer to be able to manage herself. Towards the end of her life he had to do a lot of it because she was bedridden. He chose to do so.
6. Marcus Walker's evidence is supported by the testimony of McRae, De Cesare and Williams.
   • Testimony of McRae McRae observed significant changes in Marcia Walker after the incident. He thought she was declining. Before the incident she was a cheerful person. Afterward he did not think she was. She was devastated to see her sons in their condition. After the incident he observed the sons giving much more assistance to her - making sure she was on her feet and supporting her weight while walking. Before the incident she did not need that sort of assistance.
   • Testimony of De Cesare De Cesare's evidence also points to a rapid and significant decline in Marcia Walker's health following the incident. De Cesare gave evidence that he saw Marcia Walker about a year after the incident and that she had become extremely frail. She was requiring more and more aids, such as a Zimmer frame, a commode and her bedroom was now set up more for someone who was particularly infirm and not able to care for themselves. He also described her emotions as pretty shattered. She had been dealt a serious blow because her family had been violated, her boys had been terrified and she was lost as to why it had happened. He said the question was always why - why us, what did we do? He said she had a very strong sense of family. He had not noted her walking with a stick prior to the incident.
   • Testimony of Williams Williams saw Marcia Walker after the incident in 1995 for the first time. He said her illness had deteriorated extensively to the point where she was confined very much to her bed. As to her personality, he said she was obviously upset about what had occurred.

1. I accept the above lay evidence of the immediate impact of the incident upon Marcia Walker. The evidence of a rapid physical decline is supported by common sense. As counsel for the plaintiff put it, healthy people will find that their muscles aren't what they were after spending nine weeks in bed. Someone who is suffering from muscular deterioration is also likely to suffer a similar type of setback if they are prevented for a period of time from receiving ongoing therapy, such as hydrotherapy and physiotherapy designed to strengthen and aid the function of the muscles. Common sense would also suggest that the setback is likely to be worse for such a person. Whatever strength and function that is lost will be that much more difficult to recover. Such commonsense views were supported by Dr Thomson. In referring to improvement of functions from hydrotherapy and physiotherapy, Dr Thomson was indicating improvement over and above what Marcia Walker's functioning and quality of life would have been without such treatment, bearing in mind that her condition was one of on-going deterioration. It would follow that absence of treatment was likely to be accompanied by a decline in functioning and quality of life compared to that which she would have enjoyed if she had sustained that treatment. Alternatively, what he said indicated that she was deprived of treatment which would have improved the quality of her life as long as she was able to receive it.
2. Turning to the Jones v Dunkel issue raised by the defendants, it is reasonable to have expected the plaintiffs to call expert testimony if it would have assisted their case. The inference should be drawn that medical evidence would not have advanced the case of the plaintiff. The unexplained failure by the plaintiffs to call such evidence is a factor to be considered in determining whether the inference sought to be drawn should be drawn. But I regard the conclusion that there had been acceleration of deterioration as a strong one on the evidence presently before me. The situation is not the typical one where what is at issue is the calling of evidence which can only be given by a particular person, such as Ms Hamm, and the issue is who might have been expected to call that witness. Here the issue is one of calling expert evidence. As to that, while it may be said the treating doctors were best placed to comment on the issue, the defendants could have called expert testimony on the issue. Bearing in mind the vigour, determination and thoroughness of the defence, it is a little surprising that such evidence was not called if it would have assisted the defence.
3. In the end, it seems to me that the highest it can be put is that the calling of expert evidence would not have assisted the plaintiffs or the defendants to take the matter any further than Dr Thomson was able to take it. In these circumstances, I suggest that his evidence and the lay evidence and the common sense view of the effect of the nine weeks in bed without hydrotherapy and physiotherapy should be accepted. The evidence being that the hydrotherapy and physiotherapy having stopped and there being no evidence that it was renewed, I conclude that it was not.

The acceleration of deterioration and loss of independence - conclusion

1. On the balance of probabilities, the conclusion should be drawn that the injuries suffered by Marcia Walker resulted in an acceleration of the deterioration of her muscle condition. Compensation is payable in respect of that acceleration and its adverse impact on her independence and her enjoyment of the limited life she had left at the time of the incident. This period of acceleration of disability included the 9 weeks she was bedridden, for which compensation is payable in any event. I am satisfied that but for the incident she was likely to have continued in her then state of independence for a longer period of time than those 9 weeks. Greater precision than that, however, is not possible. But for the injuries and their aftermath, she would have had more time in which she could have remained independent in her existence and it would have been of special significance for her, given that her illness was terminal.

17.4 (C) LONG-TERM EFFECTS OF THE INCIDENT - COMPENSATION FOR DISTRESS

1. Plaintiff's counsel also submitted that Marcia Walker was entitled to be compensated for the very considerable emotional distress that flowed from her witnessing the assault on her son Donald, and witnessing the ongoing impact of both assaults on her sons. Counsel submitted that there was considerable disappointment apparent in her demeanour as revealed on the Pluim tape. Counsel noted the lack of apparent anger and submitted that a stranger observing what occurred would have been outraged and felt great sorrow and disappointment. Counsel submitted that she had a very close, loving and caring relationship with her sons and she had to cope not only with what occurred that night but the long-term adverse impact on them, with Donald Walker becoming a recluse for a period of time and Marcus Walker deteriorating markedly in a relatively short period time, from a physically and intellectually vital and alive man into a shadow of his former self. Counsel submitted that she also had the emotional turmoil of her own situation. Counsel argued that no one can be prepared by ordinary life experience for what she witnessed and experienced in the incident.
2. Counsel for the first defendant submitted that any emotional upset caused to Marcia Walker was the result of her observation of her sons being in trouble and their reactions to the commission of the wrongs against them. Counsel submitted that such matters were not properly the subject of compensation in favour of Marcia Walker. Only the consequences of the wrong done to Marcia Walker can properly be the subject of compensation in her favour.

1. The plaintiffs cannot point to distress of the kind that might be categorised as a psychiatric illness.[216] In that situation, the Courts have denied compensation where the person suffering the distress was not a victim of the tort in question. Moreover, the Courts have not allowed compensation for grief and sorrow, treating it as one of the "ordinary and inevitable" incidents of life,[217] likewise the suffering of fear as a result of the tortious incident.[218]
2. There is authority, however, that in respect of torts such as assault battery and false imprisonment, damages for mental distress are "tacked on to the main award".[219]
3. In the present case, Marcia Walker was the victim of an assault and battery which occurred in the course of an assault and battery on her son Donald Walker. Part of her pain and suffering from that moment on included her distress about the injuries done to her, and their consequences for her, as well as her distress about the injuries done to Donald Walker in that incident and their consequences for him. Not long afterwards, while still coping with the pain and suffering associated with the assault and battery on herself, she was faced with the distress of the impact of the injuries to herself and Donald Walker on her other son Marcus Walker. All flowed from the event in which she was physically injured, all were interconnected and interacted with each other and all were reasonably foreseeable consequences.
4. It seems to me that it would be artificial in the extreme, when assessing damages for Marcia Walker's pain and suffering and loss of enjoyment of life resulting from the assault and battery on her to require the exclusion from consideration of the distress caused to her, while suffering her own injuries, as she observed the decline which was caused in the incident in which she herself was injured. That pain and suffering was caused by Carter and was reasonably foreseeable. Compensation should be awarded for it.
   • 17.5 QUANTUM OF GENERAL DAMAGES FOR MARCIA WALKER
5. Marcia Walker was entitled to compensation for her pain and suffering and loss of enjoyment of life suffered as a result of the assault and battery upon her. This includes the pain and suffering associated with what happened in the course of the assault and battery upon her and the specific injury itself. It also includes the acceleration of her loss of muscle function and the resulting acceleration of her loss of independence. In addition, she is entitled to compensation for the distress she experienced as a result of the assault and battery for the remainder of her life, as a result of observing the assault on her son Donald and the consequences of the assaults and batteries for both her sons.
6. Accepting this analysis, I consider an award of general damages of $100,000 would be fair and reasonable.

SECTION 18 ECONOMIC LOSS CLAIMS - JOINT VENTURES

18.1 PRELIMINARY ISSUE - APPROPRIATE PLAINTIFF

1. It is desirable to consider first the lost opportunity claim brought by Donald and Marcus Walker in respect of the business projects that they had been working on prior to the incident, such as the Dance Party; for the analysis of the issues in relation to that claim are relevant to the analysis of the issues in relation to the individual claims for damages for loss of earning capacity. An issue common to both claims is whether such claims can only be brought by Sound Investments (Aust) Pty Ltd and not by Donald and Marcus Walker. If this argument is valid the lost opportunity claim must fail as must Donald Walker's claim for damages for lost earning capacity; for the wrong plaintiffs have brought the claims.

18.1 (A) DEFENCE SUBMISSIONS[220]

1. Taking the lost opportunity claim in respect of the joint projects, counsel for the first defendant submitted that the Dance Party was conducted and funded by and through Sound Investments (Aust) Pty Ltd and that it was likely that the other joint ventures, if they advanced anywhere, would also have been operated through that company or a related corporate structure. The lost opportunity claim could only be brought by the company.
2. The argument was developed further in more detail by counsel for the first defendant in relation to Donald Walker's claim for past and future economic loss. Counsel put that the claim for past economic loss cannot be made out for at least three reasons:
   • the losses are company losses which he cannot claim personally,
   • his alleged "access to profit" of the companies cannot be made out,
   • he was in any event paid a salary which had not reduced from 1993 to the present.
3. Counsel submitted that it had been long established that the company is a legal entity which is separate and distinct from its shareholders and directors[221] and that people who elect to use a corporate structure must accept the legal consequences in doing so.[222] Accepting that he generated revenue for his company in excess of his nominal wages, counsel argued that it was the company that lost benefits that would have accrued to it if he had not been injured. Counsel submitted that the company probably had a cause of action but was not party and did not pursue such a claim. Counsel also submitted that Donald Walker could not bring a claim to recover any loss he may have suffered in the value of the shareholding.[223]
4. Counsel submitted that where a person has used a company structure for the purpose of running a business in which that person's earning capacity is used to produce income for the company, the only basis upon which the individual can recover compensation is to demonstrate that during the period of the alleged loss, the company structure would not have been employed. Counsel argued that Husher v Husher supported that proposition. [224]
5. Counsel argued that assuming Donald Walker claims access to the company's net profits, and therefore the company's losses should be viewed as his losses, such a claim is not sustainable at law or in fact. Counsel submitted that, as a matter of law, he could not have full access to the net profits. While technically he could have had dividends declared or there could have been some form of capital payment for the company, one cannot simply ignore the company and pocket everything. Counsel submitted the reason is that the company has creditors including the Australian Tax Office, a substantial creditor in this instance. Counsel noted that the company had not lodged a tax return since 1995 and was in arrears as to GST and other taxes and penalties**.** Counsel argued that the company will ultimately be liable to account to the Commissioner for income tax and GST not remitted, together with any penalties. Counsel submitted that there was no evidence that any amount was paid to Donald Walker by way of dividends or capital payments -- the only way in which payments can be made to shareholders. Counsel also submitted that there was inadequate information concerning the net financial position of the company. Balance sheets were available for the period from 1991 to 1994 but by relying on the evidence of Mr Ivey, Counsel submitted that they reveal that the company was technically insolvent and this would normally preclude any declaring of a dividend. Counsel submitted that having regard to the state of the evidence, Donald Walker had not established that he had any entitlement to any net profits of the company at any relevant time.
6. Counsel maintained that the only basis upon which Donald Walker could recover for any lost earning capacity damages would be if he were to withdraw his labour from the company. That possibility should be dealt with by means of an appropriate discount - 75% in respect of past losses, the first defendant being prepared to allow a 25% probability that he would have abandoned his company structure during the years since the incident to the present. I note that on that basis, counsel for the first defendant was prepared to nominate a figure of damages recoverable at no more than $3,600 and this related to a figure arrived at on the basis of losses incurred in the two quarters immediately following the incident in 1993. Counsel also suggested an interest figure on that figure of $2,100 applying a rate of 7% because of the dilatoriness of the plaintiff in prosecuting the case.
7. In relation to the claim for future economic loss due to ongoing reduction of earning capacity, (- para.83 and following) a similar analysis is made. Counsel submitted that there was a remote chance that Donald Walker might withdraw his labour from Sound Investments (Aust) Pty Ltd and apply his earning capacity for his sole personal benefit, but there was no evidence of such an intention. Counsel submitted that a substantial discount should be applied.

18.1 (B) THE CORPORATE ARGUMENT - HUSHER V HUSHER

1. The argument advanced for the first defendant, in which I assume the second defendant joined, should not be accepted.
2. The authorities dealing with a claim for lost opportunity concern the sort of situation where a plaintiff seeks to demonstrate that but for the defendant's tortious conduct, the plaintiff had a commercial opportunity to obtain a benefit of non-negligible value. If those matters are established on the balance of probabilities, the Court is then required to assess the value of that opportunity by having regard to the degree of probability or possibility of success if the opportunity had been pursued.[225] Ultimately, the question will be determined on the basis of the potential net profit existing in the enterprise and the vehicle for that net profit is not considered. The decision in Husher v Husher has no bearing on this question.
3. Husher v Husher does have a bearing on the way in which Donald Walker's claim for damages for lost earning capacity is to be approached. In my view, however, it does not support the argument advanced for the defendants. In Husher v Husher[226], consideration was given to the situation where the injured plaintiff carried on a business in partnership with his wife under which the profits were shared equally. It was the husband's physical labour and skill, however, that generated the entire income of the partnership. The majority identified two critical elements. The first was that

"the whole of the income of the partnership came from the efforts of the appellant and the exploitation of his earning capacity."[227]

"the partnership was a partnership at will. The appellant would very probably have chosen to maintain those arrangements but that was his choice. If he chose to make some other arrangement concerning the fruits of his labour, effect would be given to that choice, whatever view his wife may have held. What the appellant would have had under his control and at his disposal but for the accident was, therefore, the whole of the fruits of his skill and labour. And it is, then, the whole of those fruits that he has lost. In this regard, the case is no different from the injured plaintiff who would probably have devoted some or all of the income earned in the future to charity."[228]

In describing the financial loss in that case, the majority stated

"The financial loss occasioned by impairment of earning capacity is the loss of what (if there had been no accident) the injured plaintiff would (as opposed to could) have expected to have had under his or her control and at his or her disposal by exercising that capacity. We refer to "control" and "disposal" because what the plaintiff has lost are the financial rewards from work that are rewards the plaintiff would have been able to direct to whatever purpose or destination he or she chose."[229]

1. The majority accepted that the principle required the identification of what earning capacity had been impaired or lost and what financial loss was occasioned by that impairment or loss. It accepted that the inquiry did not stop at what the appellant could have earned, but invited attention to what would have happened but for the negligent infliction of injury. It acknowledged that it was in that context that the probability that the partnership at will would have been maintained was raised as relevant. It rejected, however, that consideration of that issue necessarily had the result that the plaintiff could only recover half of whatever the partnership might have earned or might earn in the future.
2. The High Court emphasised that what then became critical was that

"Nevertheless, his capacity to terminate the partnership at will, and to bring an end to, or vary, the arrangements made with his wife concerning the manner in which income generated by his activities was derived, resulted in an effective control which is of critical significance in measuring his earning capacity and his financial loss."[230]

1. The High Court went on[231] to say that deciding what value is to be ascribed to the loss of future earning capacity of an injured plaintiff requires close attention to the facts of each case. The task is not one to be undertaken by seeking to classify cases as concerning "sole traders" or "partnerships" or "wage earners" or "trading trusts", and then attempting to deduce some rule or general application to all cases falling within the classification thus devised. Rather, the inquiry is about what could the plaintiff have done in the workforce but for the accident and what sum of money would the plaintiff have had at his or her disposal. Only when those enquiries are pursued can a judgment be made about what capital sum to allow as damages for the impairment of the plaintiff's earning capacity. In doing so, regard must be had, of course to all those contingencies of life that might reasonably be expected to affect the course of events in the future.

18.1 (C) CONCLUSION - APPROPRIATE PLAINTIFF

1. In my view, there is no support to be found in Husher v Husher for the propositions advanced for the defendants. In particular, there is no support for dealing with the situation by considering what are the probabilities of the person abandoning the partnership arrangement in that case and, by analogy, the company structure in this case. The critical question appears to be, as the majority identified
   • whether the whole of the income of the company came from the efforts of Donald Walker and
   • whether the continuation of that company structure was a matter entirely at his will.
2. It may be said that the continuation of a company structure is not entirely at the will of the sole shareholder and director because the creditors may have a say in that. The same, however, may be said of a partnership. Assuming solvency, the use of the company structure was entirely a matter for Donald Walker. Therefore, its continuation was entirely at his will and he had total control of what happened to the fruits of his skill and labour. Assuming he establishes damage to his earning capacity, he is not confined to whatever may have been the arrangement as to salaries drawn and matters of that kind. What has to be determined is the earning capacity that he had prior to the incident, whether there was any diminution of that earning capacity, and what value should be put on that lost earning capacity.
3. I turn to the examination of the particular economic loss claims, starting with the lost opportunity claims.
   • 18.2 ALLEGED LOST OPPORTUNITIES - JOINT VENTURES
4. Counsel for Carter put that the evidence led did not found any claim for damages for such loss of opportunities. The critical issues are whether the plaintiffs have proved on the balance of probabilities that the torts complained of caused "the loss of a commercial opportunity of some value (not being a negligible value)".[232]
5. A number of ventures were said to be under consideration at the time of the incident. With the exception of the Insure Card proposal, however, the evidence adduced did not support the conclusion, on the balance of probabilities, that they presented a commercial opportunity of some value, not being a negligible value. As to the Insure Card, the plaintiffs have failed to prove on the balance of probabilities that they were deprived of an opportunity by the incident.

1. A document had been prepared in July 1991 which identified the features of the proposed four compartment rubbish bin and it had been circulated shortly afterwards to potentially interested parties. On the evidence before me, it may be said that the concept has not been adopted anywhere in the recycling industry.
2. Counsel for the second defendant emphasised the lack of a business plan at the time, and any decisions as to whether and to what extent there would be licensing of others to manufacture and distribute. Counsel for the defendants generally submitted that it was no more than an idea. Counsel for the defendants submitted that as at August 1993 it was a matter of mere speculation as to whether the concept could be turned into a commercial opportunity.
3. The defence arguments should be accepted in relation to the Eco-bin. The situation is one where the plaintiffs have not demonstrated on the balance of probabilities that the concept presented a commercial opportunity of some value at the relevant time.

1. On the other hand, the Insure Card project presented a commercial opportunity of potentially considerable value - for someone. The business plan proposed in 1991 reveals that Donald Walker's and Marcus Walker's company, InsureCard Pty Ltd would act as a multi-agency broker.[233] The plan envisaged that everyone on the electoral roll would receive an Insure Card which could be used through the plaintiff's company to obtain insurance of all kinds through insurance companies which had agreed to participate with InsureCard Pty Ltd. It was also intended that local councils would be involved. They would assist in distributing brochures and the InsureCards to all households and in return would receive one third of all commissions paid to InsureCard Pty Ltd. Such money would be used for environmental purposes. One third would be returned to the client and InsureCard Pty Ltd would retain the balance. There were further details and complexities in the proposal. Counsel for the plaintiff submitted that the advantage to the insurers was that the project would attract more business for them, because it did not involve extra commissions, while offering a discount to the customer.
2. There were however, fundamental weaknesses in the project. It would have required a large central administration. The Walkers were not in a position to set up that administration. Their plan was to pass much of that on to the insurers (for example, their commission departments) to handle. To get this proposal off the ground, agreements had to be entered into with at least one insurer. This involved exposing the proposal to companies. But they would want to control it and its benefits for themselves. Counsel for the plaintiff accepted the comments made by Mr Ivey that others could match the scheme and that there was some force in the argument that it would have been copied and the question would then be whether and to what extent in the end, there would have been a profit from the venture.[234] Nonetheless, even though after an initial burst the business might have plateaued, counsel for the plaintiff submitted that it had the potential to be a very significant earner for a considerable period of time.
3. Counsel for the first defendant, relying on the evidence of Mr Ivey, argued that there were no features of it which would guarantee success at the expense of competitors. Counsel also argued that the project was, in any event, very much in the development stage as at 1993. As to the latter point, the situation, as acknowledged by Marcus Walker and Donald Walker, was that they were continuing to think and talk about the concept from 1991 to 1993. I also note that the Walkers had not had discussions with any councils prior to the incident and Donald Walker). Counsel for the second defendant also drew attention to oral evidence of Donald Walker of confidentiality agreements with the sales manager of National Mutual Camberwell, his uncertainty as to whether the State Manager had signed one, and his belief that the State Manager of Commercial Union also signed one. But none were discovered and none produced. Donald Walker also gave evidence of written advice from the National Mutual solicitor about the issues in 1989 which he said he had provided earlier to his counsel. It too was not produced . Counsel also drew attention to the evidence about registering trademarks overseas in respect of the proposal and the reality that, while this was explored, it was not ultimately pursued in the United States or in the United Kingdom. The US applications were abandoned on 2 October 1992 and those in the United Kingdom by 21 April 1993.
4. I agree that the project did not get beyond registering business names, applying for trademarks and registering a company and production of a discussion paper. There were also very preliminary discussions with National Mutual - six meetings through to mid 1991. Little occurred between 1991 and 1993. This was a critical difficulty facing the InsureCard project claim. In the years leading up to the incident, the critical period prior to the incident, the focus of Donald and Marcus Walker was on the Dance Party which took place in March 1991, paying off the debts and taking steps to develop that project further. In 1992 and early 1993 they allowed trademark applications to lapse.
5. The fundamental difficulty facing the project, however, was commercial reality. The plaintiffs have not established that they had satisfactory confidentiality arrangements in place. The commercial reality was demonstrated by what occurred in respect of another project that Donald Walker discussed with National Mutual. He took to them the idea of setting up a special arrangement with the Retail Traders Association. There were four in-depth meetings following which National Mutual was so interested in the matter that it took over the idea and excluded Donald Walker from its operation. As described by counsel for the plaintiffs, their justification was that it would need manpower that Donald Walker did not have and he did not have the capacity to expand quickly enough to take advantage of the enterprise. While the InsureCard idea was no doubt attractive as a competitive device within the insurance and brokerage industry, it required an unrealistic degree of altruism from the insurance companies to enable persons in the positions of Donald and Marcus Walker to derive substantial commercial benefit from it by being an owner of the venture while the insurance companies, and the councils, bore most of the administrative costs. In the end, the industry appears to have gone down the Centre of Influence path in any event.
6. I am not persuaded on the balance of probabilities that Insure Card presented a commercial opportunity of value for Donald and Marcus Walker.

1. Ultimately, this opportunity was not pressed by counsel for the plaintiffs.

1. The plaintiffs have not demonstrated on the balance of probabilities the chess set ideas of Marcus Walker were a commercial opportunity of some value. True, he had spent some time developing ideas, had spoken to some sculptors and given some thought to how they might be produced and manufactured. The ideas, however, were still inchoate and there was no evidence before the Court about the financial realities of such a project. At best Marcus Walker was in the ideas stage and the proposals had not got beyond the embryonic stage of development.
2. I turn to the Dance Party proposals. This raises different issues, the concept of the Dance Party being one that was already being exploited commercially in the community. Thus there was plainly a commercial opportunity and one that they would have taken. The problem facing the plaintiffs is proving that it was of some value.

1. If one thing is clear on the evidence relevant to this issue, it is that Donald and Marcus Walker were committed to holding another Dance Party. They had not proceeded because of the problem of ensuring that all creditors from the first Dance Party were paid and ensuring that they were in a financial position to conduct a second Dance Party. I am also satisfied that they had received a salutary lesson from the first Dance Party about the importance of budgeting in advance and maintaining control over expenditure. But the fundamental issue is whether the plaintiffs have been able to establish that the commercial opportunity that existed had some value of more than a negligible amount.
2. I accept that the first Dance Party was a great success as an event for those who took part in it. I accept the submissions of the defendants, however, that whatever reputation might have been gained by that event, too much time had elapsed for that reputation to be something that would have assisted in the promotion of the second Dance Party. The plaintiff also had the problem that the loss suffered in the first Dance Party was very large and the difference between income and expenses, even if one excludes the interest costs incurred while the debts were paid, was very large. A serious question exists as to how that gap could be bridged and how a profit might be made. A very large reduction in costs was required and a very large increase in receipts. There was insufficient evidence to support the conclusion that there was a chance that that could be achieved. There does not appear to have been a detailed plan and budget[235] in existence at the time of the incident, which might have demonstrated that they had a plan that would enable them to make money on the next Dance Party.
3. In that situation, it seems to me that the plaintiffs have great difficulty demonstrating that if they had tried a second time, they would be any more successful commercially than they were the first time.
4. It was in my view necessary for the plaintiffs to produce at least details of the proposal, costings and a genuine budget and evidence to support the validity of those figures. It was also necessary for them to place before the Court evidence to support the conclusion that at least some similar ventures over the relevant period had been commercially viable.
5. I do not doubt that, if they had had the opportunity, Donald Walker and Marcus Walker would have tried to make sure that the second Dance Party either made a profit or at worst, a small loss. But plainly, their motivation was as much the desire to create an event which gave them satisfaction as it was to create an event that made money.
6. The onus being on the plaintiffs to establish, on the balance on probabilities that the second Dance Party was a commercial opportunity of some value, they needed to adduce more detailed evidence of the kind referred to above to succeed. This claim therefore fails.
7. I note that counsel for the plaintiff also argued that these opportunities should be considered when considering the "vicissitudes" issue in assessing damages for lost earning capacity. In my view, however, the case put in that way runs into the same difficulties.
8. I turn to Donald Walker's claim for compensation for damage to his earning capacity.

SECTION 19 ECONOMIC LOSS CLAIM - DONALD WALKER

1. In essence, the statement of claim alleged that, prior to the incident, Donald Walker had earnings of approximately $315,000 per annum and interest in five commercial ventures and that, as a result of the injuries and their consequences, his ability to carry on his work and continue with the commercial enterprises has been significantly impaired, resulting in significant and continuing loss.
2. Counsel for the plaintiff submitted that the picture that emerges from the evidence was of a man very significantly disadvantaged in organising and running his business. He had employed people as cold callers and to drop brochures and do other things for him to assist him to conduct his business after the incident. He was driven at times to earning most of his income from churning, but there were limited opportunities to churn. Everything done by him was done with difficulty. He had to "battle to do it". He had not "battled" before.
   • 19.2 DEFENCE SUBMISSIONS
3. Counsel for the first defendant argued that any claim for past economic loss should be restricted to the six months post 9 August 1993. Counsel conceded that the figures provided in respect of past earnings demonstrated a short-term effect on the earnings in the September and December quarters of 1993. Counsel relied on the following table:

1. Counsel submitted, however, that the figures achieved in 1994 and 1995 calendar years revealed that Donald Walker's ability to maintain commission fee income at or above the levels prior to the accident had not been permanently impaired.
2. Counsel also submitted that Donald Walker's claim for future economic loss should be dismissed because the evidence did not establish any ongoing incapacity. In support of this argument, he raised a number of points:
   • Counsel relied on the evidence of Donald Walker in cross-examination that he agreed that he had been performing "at or near the highest level since 1993 as illustrated by competition results".

His actual response was "Yes, I have had - yes, okay." What the answer meant depended on what Donald Walker thought "at or near" meant.

The fact was that Donald Walker did, at times, achieve commissions which did place him near the highest level. Counsel for the first defendant submitted that this was significant because the industry became more competitive after 1993 than it was before 1993. Accepting those propositions, however, the issue is whether he could have and was likely to have done better uninjured. In my view, he could have and would have, but for the incident.

• Later in submissions supporting Mr Ivey's evidence, counsel for the first defendant argued that the proposition that Donald Walker had a superior earning capacity over most insurance agents prior to 1993 was not supported by the folder he produced. Counsel argued that its evidence was essentially neutral prior to 1988 and contained no documentary evidence of prizes and awards or other recognition between July 1988 and the incident. Addressing that issue, it seems that he did not receive awards in that latter period. But the absence of awards was the result of Donald Walker not working full time as an insurance agent in that period, because he was exploring other business options with his brother - including the Dance Party. Prior to 1988 for many years he had consistently excelled.
• Alternatively, counsel questioned the reliability and value of the evidence of awards and prizes. In particular, he questioned the conclusions to be drawn from the evidence supplied by IFMA, later taken over by PIS, the company through which Donald Walker currently does his business, and has for some years, which were relied upon by counsel for the plaintiff as indicating a decline in performance relative to other agents. Counsel for the first defendant submitted that a valid comparison could not be made,[237] in any event, because many of the agents against whom he was competing were engaged in superannuation work as well as insurance advice and Donald Walker was confined to insurance advice. Counsel submitted that it would be unsafe to rely upon this evidence which counsel described as "sparse" to draw any conclusion that Donald Walker had suffered a significant diminution in earning capacity.

Addressing this issue, there are difficulties in making the comparison, but the positions achieved are consistent with Donald Walker having pushed on in spite of his disabilities and still falling short of what he could have earned.

1. The overall defence argument generally proceeds on the flawed basis that, if there is no substantial change in financial results that flow from the exercise of earning capacity, then there has been no damage to that earning capacity. Obviously that does not follow and in the circumstances of this case that is plainly not so.
2. I have already referred to Donald Walker's acceptance of the proposition that he had been performing "at or near" the highest level after 1993. Counsel went on, in that exchange, to ask him to accept the proposition that he was performing better post 1993 than pre 1993. He did not accept that proposition, replying that they were two different "areas". In one he was an agent working on his own. In the other he was "forced to have people assist" him. In any event, comparing his recognition in the industry before and after the incident, my assessment is that the latter was less consistent and overall slightly lower.
3. In relation to the claim for future economic loss, the primary position of the first defendant is that there is none, because there is no ongoing incapacity. In the alternative it is put that the amount of $74,000 only should be allowed on the basis of the evidence of Mr Ivey.
4. Counsel for the second defendant focused on the evidence relating to the assessment of lost earning capacity, but I proceed on the basis that the second defendant adopted the submissions of the first defendant on the question of whether there was any loss of earning capacity.
   • 19.3 EXAMINATION OF EVIDENCE

19.3 (A) DONALD WALKER'S INDUSTRY PERFORMANCE PRIOR TO AND AFTER THE INCIDENT

1. Considerable evidence was led through Donald Walker as to his performance as an insurance agent prior to the incident. The Court's attention was drawn, for example, to National Mutual records which showed the Victorian Branch results. According to those records, as at 15 April 1984 there were 1,650 agents in Australia and Donald Walker was ranked fourteenth in Australia and second in Victoria. To achieve that ranking you had to have approximately a 90% retention rate. Donald Walker said it was fairly hard in the mid-1980s to get a retention rate of 90%, the usual was 85%. He agreed that earlier in that year he had not qualified for the 90% retention rate. He said in 1984 he had become unattached in that he did not have a sales manager but was given an office and reported to the State Manager. After 1984 the rankings involved the combined National Mutual and T&G companies and their agents. In March 1985 he was ranked eleventh in Australia. He said that to prevent clients dropping off it was necessary to sell to the needs of the client and sell good quality products and look after them so that they stayed on the books. He said in 1987 and 1989 it was difficult because people were cancelling insurance rather than losing their mortgages and that was the general experience of most agents. By October 1987, the industry had shifted from selling ordinary insurance and superannuation to selling risk insurance giving income protection and also selling personal superannuation. He had no people working for him at that time. He was ranked third on 16 October 1987 by "The Northerner". In 1988 he was leading in personal superannuation.
2. Reference was made in evidence-in-chief to documents congratulating him on his performance in 1996.[238] In 1995 he finished third in the top twelve income protection writers in Victoria. He said he did that by concentrating on existing clients, because his health was such that he could not do more, in particular could not seek new clients. He said he thought he qualified most years to go to a conference with all expenses paid. For the year ending 30 June 1996 he was listed number six in the IPSA "top guns pool". He thought there were approximately 200 people in the pool. He also won prizes in 1996 and 1997.[239]

19.3 (B) IMPACT OF THE INCIDENT ON DONALD WALKER'S EARNING CAPACITY

1. In the end, while of relevance, a simple comparison of Donald Walker's rating before and after the incident probably does not ultimately assist the resolution of the critical issue of whether there was any loss of earning capacity. It is reasonably clear that he had for many years prior to 1988 been in the very top echelon of insurance agents and for a period after the incident he has recovered to performance figures which also gave him a very high rating in the industry at times. This has been achieved, however, by adopting short term solutions like churning. The issues to be resolved, however, are:
   1. whether and to what extent his earning capacity has been adversely affected; and
   2. whether and to what extent any loss of capacity has resulted in financial loss.[240]
2. Considering the injuries suffered by Donald Walker, physical and psychological, the worsening of his physical condition over the intervening years, the effect of the heavy medication he has had to take and his generally fatigued condition, it would be absurd, erroneous in my view, to conclude that his earning capacity as an insurance agent, or in any other occupation, had not been damaged.

1. The evidence of witnesses such as Sheehan, De Cesare and Parton is testimony to the impact of his physical and psychological injuries and medication. They also confirm the struggle Donald Walker has had to sustain his business and to use what earning capacity he has. The fact that he has been able to achieve significant earnings at times is in fact a tribute to his determination to press on in spite of the physical and psychological damage to his earning capacity.
2. I accept that his thinking has been and is dulled by medication, that the pain has been and is considerable, and that he has and has had difficulty concentrating. I accept that the pain and the medication have created particular problems for him in dealing with complex documents that he has had to fill in, such as statements of advice. This could take six hours for a single policy. He said that the complex insurance documentation has existed for about the last six years. Previously it was about four pages long and usually hand written. He has also had trouble creating that documentation after 1993 because writing by hand has accentuated the pain. The difficulty he has since had driving, has also limited the geographical area in which he does business.[241]

1. It should also be noted that the number of clients has diminished over the years. In 1993 he had three filing cabinets full of clients, at the present time he has three-quarters of one filing cabinet of files on clients.

Reduced commission earnings and increased expenditure

1. I do not accept the argument (para.246) that his commission earnings after the incident do not demonstrate any loss of earning capacity. At times, it is true that the commission earnings appear, on their face, to be inconsistent with a reduction in earning capacity. Set out below are variations in the gross earnings figures taken from documents that have been supplied to the Court in evidence. I have primarily relied on the compilation that was prepared by counsel for the second defendant.

1. The first point to note is that there are clear indications in the above evidence of Donald Walker being prevented from exercising his earning capacity. For example,[245] I refer to the clear evidence of a marked decline in his income in the period immediately following the incident. I refer also to the clear evidence of a decline in income in the financial year following his operation (2001 financial year), the development of myofascial pain syndrome and his pain becoming so extreme that he was prescribed synthetic morphine. As to the fall in commissions, when cross-examined, he initially blamed the vast number of court appearances that had to be made in the civil case, but he also referred to his ill health at the time. Reference has already been made to his problems immediately prior to the operation, and afterwards. I am satisfied that the latter, in particular, must have had a significant impact on his ability to work. I accept his evidence that he became extremely unwell with pain down both arms and was taking Panadeine Forte and went on to Kapanol about nine months after the operation. I am satisfied that his state of health and the drugs would have significantly curtailed his efforts at that time.[246]

1. Looking at the evidence in more detail, the following may be noted:
   • Prior to the incident, he had started, in a small way, to employ people to assist him. In the late 1980s he employed drivers[247] not sub-agents.. In 1993 financial year (that is prior to the incident) he spent $5,390 on casual staff. He thought it may have been clerical staff and, just before the incident, to do some cold calling. They may have done some follow up ringing - for example following up medical reports. I accept his evidence that while cold calling was a feature of his business, prior to 1993 he had done the cold calling himself. He also had not engaged in churning.
   • Shortly prior to August 1993, he joined a National Mutual Master Agency Lanyon Backman and remained with them for several years[248].
   • Immediately following the incident he was not fit to work for the first four months and, when he was able to work, engaged a number of staff to assist him with telemarketing. I also accept his evidence that there was a lot of trouble with them. I accept his evidence that he engaged people from the CES, but this was necessary at the time to keep his head above water, otherwise he would have lost his home, his brother's home and the car and other items. For that financial year he received commissions totalling $107,739. His ranking dropped to 198th and his retention rate fell from 90% to 69%. He did virtually no insurance work between 15 August 1993 and November 1993.
   • In 1995, he moved away from superannuation and focused on income protection. He finished first for the months of August and September in the top twelve income protection writers, but he said that he achieved this by concentrating on selling income protection policies to existing clients - a practice known as churning. He was not able to try to find new clients. I note that the financial statements record that in the 1995 financial year he spent $8,778 on "sub-agents and telemarketers" (one and the same). He also paid spotters' fees or commissions of $2,404 - which he described as another desperation move. Commissions received that year increased to $160,121.
   • In 1996 he was recognised by the IPSA as number six in a pool of about 160 agents, a qualification which recognised the number of sales made. I note that in the 1996 financial year he spent $23,993 on telemarketing. I accept his evidence that he needed to do that to keep the business afloat. He also spent $6,958 on spotters fees (SV17). Commissions declined to $133,380.
   • In 1997 he received a prize for achieving targets and rated in the top ten on occasions during that year. He received apparently high commission fees that financial year but he also paid not insignificant amounts to telemarketers - $7,713. They rang clients to make appointments and one may have done cold calling. He also spent $1,809 on spotters fees (SV17) and obtained good income through the Design and Drafting Association. In addition, at that time, whilst still with National Mutual, he was able, through "Central Sourcing", to offer existing clients five other alternatives to National Mutual, including Royal and Sun Alliance. He was selling income protection which was fairly new in the industry and this was done to mostly existing clients. He went through the existing clients and offered them alternatives out of the five companies to which National Mutual allowed them access[249] - that is, churning. Commissions rose to $192,445.
   • 1998. The financial records show the spending of $40,248 on telemarketers and $1,972 on spotters fees. He had people ring existing clients to invite them to review their insurance portfolio with a view to taking out new policies (again, churning). They also did some cold calls. He did this because he was under so much stress at the time. He denied that the commission received of $259,000 was an excellent income compared with what others were making.
   • Late in the first half of the 1999 financial year, he severed his connection with National Mutual,[250] following National Mutual excluding him from the abovementioned special arrangement with the Retail Traders Association.[251] He joined Insurance and Finance Manager of Australia (IFMA). It was acting for 98% of the Australian insurance market involving 18 life insurance companies. He had to familiarise himself with the products of IFMA. He again engaged sub-agents and telemarketers, spending[252] $39,359. He used them to ring existing clients to see if they were interested in changing their insurer and policy - again churning. He spent $288 on spotters fees. He again concentrated on risk products - income protection, life cover and trauma insurance. His evidence was that the majority of his National Mutual clients changed their policies over the next two years. The commissions received totalled $162,268.
   • In 2000, he again hired sub-agents and telemarketers, but the amount was reduced to $9,790. I accept his explanation that his ability to afford such assistance fluctuated depending on the outgoings on the legal proceedings. It should also be remembered that his condition had been worsening and that by January 2000 his neck injuries and associated pain were such a problem that he underwent surgery. By June 2000 his condition had further worsened. Notwithstanding these developments, he received commissions totalling $188,555.
   • Turning to the financial year 2001, by mid-2000 he was diagnosed as suffering myofascial pain syndrome. By December 2000 he was prescribed synthetic morphine. In December 2000, Dr Lim recorded that his life was consumed with pain. Only $1,410 was spent telemarketing in the financial year 2001. Donald Walker continued to be in considerable pain throughout that period and this has continued. In this financial year, the gross commissions were $86,162, less than 50% of the previous year. He attributed this to Court appearances and his ill-health.
   • In 2002, the commissions increased to $164,381, double that of 2001, but it will be noted that the cost of telemarketers in the 2002 financial year rose to $14,000. I note that in 2002 he was on Kapanol, a natural morphine, 60mg twice a day, and Endep, 75mg at night (an anti-depressant). He was also taking Duphalac and Coloxyl for the constipation caused by the Kapanol and Endep. The Kapanol and Endep slowed down his mental processes. The medication has continued. Because of his health he had difficulty doing much more than dealing with existing clients and much of the time he concentrated on transferring clients to other companies - churning.
   • In 2003, his revenue declined significantly to $129,668. I accept his evidence that he was still not well. He was having trouble concentrating and driving . It should be noted that there was an increased amount spent on telemarketers - $19,880 because he needed to expend money to get results from cold-calling .
   • In 2004, his income declined further to $102,636. I accept his evidence that his feeling of wellbeing was down and he ceased to spend money on sub-agents or telemarketers, because he didn't think he could concentrate on employing anyone in that particular year. He said that he was generating commissions at the time by churning.
   • In the 2005 financial year, $11,000 was spent on telemarketing. De Cesare started in January 2005, but he had to be trained. Donald Walker also struggled with a couple of very temporary people who only lasted a couple of weeks. Commissions, however, increased to $165,963.[253] De Cesare's recollection was that most sales involved old clients . De Cesare did some driving .
   • In the 2006 financial year, he was again helped by De Cesare and later by Sheehan. De Cesare's role became one of going through files to identify clients, "true believers", who might have their insurance upgraded - churning. Donald Walker said he wrote very little new business that year. In the 2006 financial year, $7,000 was spent on telemarketing. Commission increased to $196,001 in that financial year.
   • In the 2007 financial year, Sheehan continued to work for Donald Walker doing cold calling, setting appointments and related support work. In the 2007 financial year the amount spent was $30,536. Commissions increased to $242,279. In this year, Donald Walker appeared to have made his first serious attempt to gain new clients through Mr Sheehan and it appears to have paid off. Donald Walker credited the improvement to Mr Sheehan and his experience and ability to gauge the interest of those he called.

1. Clearly, Donald Walker's earning capacity has been severely impaired. In spite of that he, at times, earned significant commission income.

As to the apparent good years, the explanation lies in

• the capacity of Donald Walker, when needed, to push through the difficulties caused by his physical and mental condition and his treatment,
• his hiring of people to do what he would otherwise have been able to do, such as cold calling and driving,
• a change of approach to his work by his resort to excessive churning and the sale of trailer commissions.

1. I am also satisfied that major reasons for occasions of comparative high level earnings have been the need to support himself and his mother and brother, particularly his brother, and the need to fund this litigation.
2. I accept that his engagement of people to help him at different times in the years following the incident met with varying degrees of success, because of the adverse impact of his physical and psychological injuries on his earning capacity. The evidence also reveals a consistent emphasis on churning policies - that is persuading existing clients to change their policy, a practice which results in the agent receiving the high initial commission from the new policy instead of a trailer commission from the old policy[254] and a practice which cannot be repeated often and does not advance the business because the effort involved is not directed to obtaining new clients.
3. The damage to his earning capacity also manifested itself in other ways.

1. In and between 2006 and about March 2007, he sold trailer commissions relating to AXA clients. There were two sales, one of $22,000 and one of $12,000. He did this because he needed to raise the money to keep himself "afloat" and put money towards the case. This was detrimental to his business because he was selling clients and usually the purchaser will get their money back over 24 months.

1. The damage to his earning capacity also prevented him from expanding his business.
   • He had had no trouble studying prior to the incident but while still with National Mutual he attempted in about 1995 to take the subjects needed to enable him to qualify as a financial adviser - a lucrative field. It took him three years to do two subjects. His problem was his inability to concentrate. The training involved lectures and self-study. He had to abandon the attempt.
   • His injuries and psychological damage also deprived him of access to what in recent years has become the main area of business, namely, Centres of Influence. When Donald Walker joined IFMA in November 1998, they had created relationships with firms of accountants and solicitors which are known as Centres of Influence. This apparently has created significant opportunities for insurance agents to obtain business. It is common ground that he has not been given access to the Centres of Influence and must, therefore, generate his own business without that assistance.
2. I note that counsel for the first defendant sought to challenge Donald Walker's case relating to Centres of Influence. The arguments are considered in Appendix O (Economic Loss Claim of Donald Walker). My reasons for rejecting the defence arguments are there set out.

Impact of the incident on Donald Walker's earning capacity - conclusion

1. On any view, it seems to me that Donald Walker's earning capacity has been significantly damaged because of the physical and psychological injuries he suffered as an immediate result of the incident. The psychological damage has continued, with the physical damage and its consequences worsening. The medication required to enable him to cope with the physical deterioration has further adversely affected his earning capacity. His earning capacity is now at a significantly more reduced level than it was after the initial stabilisation of his condition after the incident.
2. As to the future, the probabilities are that his earning capacity may improve slightly with the removal of the stress and distraction of this litigation. Against that, his physical condition will not improve. He may need to increase his medication.
3. It is also apparent from the history since the incident, that there had been particular periods where he has not been able to continue to battle on because of his physical and psychological injuries. The probabilities are that there will be like periods in the future.
4. He has become very dependent on the persons engaged and much depends upon them. At the moment, with Sheehan, he appears to have an effective cold caller. A risk he runs, however, particularly having regard to his difficult behaviour, is that Sheehan may only be a short-term solution to his problems and his chances of finding another Sheehan may be slim.
   • 19.4 ASSESSMENT OF DAMAGES FOR LOSS OF EARNING CAPACITY

1. Counsel for Donald Walker submitted that the evidence of the experts should be looked upon as a guide in assessing quantum. Donald Walker relies upon the evidence of Mr Donaldson, a person experienced in the insurance industry. He chose Donald Walker's 1981 earnings of $117,157 in the 1981 financial year as his datum point from which to assess the financial effect of the loss in earning capacity.[255]
2. Counsel submitted that despite the criticism of this choice, it was an appropriate place to start. Counsel justified the choice partly on the ground that from approximately 1987 to 1993, Donald Walker had been without a driving license for considerable periods of time. Counsel submitted this significantly interfered with his capacity to earn income. In addition, for a period prior to 1991 he had been working significantly on other projects such as the Dance Party and InsureCard.
3. Reliance was also placed upon Mr Donaldson's evidence that it was an appropriate year to choose. Mr Donaldson said he had been asked by Mr Meldrum to use 1981. He said he was not uncomfortable about that choice because the commissions earned that year were of an order that he would have expected the better agents to earn at that time and he understood Mr Walker to be a top agent. He said that he did have reservations about using this figure but that was because Donald Walker had only been in Victoria as an agent for approximately three full financial years and he had known agents not to hit their peak earnings for up to five years.
4. To convert those 1981 earnings to the equivalent earnings for the year ending 30 June 1993, he used Average Weekly Ordinary Time Earnings ("AWOTE") statistics. He justified the choice of that approach on the basis that, while the AWOTE statistics applied to employees on salary and wages and have a low correlation with a life insurance broker's earnings over the short term, there is a high correlation over the long term. He considered it a suitable index for projecting a broker's earnings since a client's need for a certain level of insurance and their ability to pay are both linked to their earnings. His view was that the CPI was not suitable because it is related to consumer prices and not earnings. His approach resulted in an estimated earnings figure for the year ending 30 June 1993 of $237,840.
5. In calculating loss of earnings since 1993, Mr Donaldson first calculated gross earnings using AWOTE in four four-year steps.[256] He also calculated net earnings using a cost percentage of 46% of gross earnings and used a top marginal tax rate in each tax year of 47% except in 2006/7 when it was 45%. He also took into account the Medicare levy. On that basis he estimated the total loss flowing from lost earning capacity up to 30 April 2007 at $478,908. He referred also to the possibility that Donald Walker's uninjured earning capacity might well have resulted in higher returns because of the relatively higher commission rates on the type of business he now sells, mainly protection insurance. He also stated that in his experience leading producers in the financial industry are earning between $500,000 and $1,000,000 per annum and that, therefore, to assume that the current commission scale would have no effect on his earning capacity is a conservative approach.
6. Turning to the future, counsel for Donald Walker argued that vicissitudes operate both ways and queried how big the discount should be. Counsel submitted that there were, for example, large numbers of self-employed people who remain in the workforce over the age of 65 and that is aided by the new superannuation system. Generally, Counsel submitted that there had been the opportunity for Donald Walker to go much further and for longer. He had been in the top 1% among 300 agents and 11th to 22nd among a couple of thousand agents. He would have had the potential to match the other agents earning more than he had as a sole agent. Counsel submitted it was not to the point that the other agents were also dealing with investment products, because the plaintiff himself said he had tried to obtain a qualification. He had studied for it but had not been able to cope with the study**.** Counsel further submitted that whether selling insurance or investment products, what is involved is simply a selling task and, in the case of investment products, it is a matter of advising on one fund over another fund. Counsel submitted that is not very different from talking about one policy over another policy. The needs of the client must be identified whether for investment advice or insurance.
7. Mr Donaldson also assessed the present value of Donald Walker's loss of future agency income as at 30 April 2007. He appears to have assessed total loss of future capacity. He assessed potential gross earnings as at 30 April 2007. After deducting expenses, tax and Medicare levy, he arrived at a net income of $117,028 per year as at 30 April 2007 or $2,250 per week. He assumed that Donald Walker would have otherwise ceased work at age 70 (a further 15 years). He calculated the present value of that future loss discounted at 5% to be $1,185,755.

1. Counsel for the first defendant accepted that it is convenient to assess an injured plaintiff's economic loss by reference to the actual loss of wages which has occurred prior to the time of trial and which can be ascertained.
2. Counsel submitted that where there is a loss of earning capacity, while the damages are awarded for lost capacity not lost earnings, damages will not be awarded unless the loss of capacity has been productive of financial loss.[257] Counsel referred to the books and financial statements of the company. Counsel argued that financial statements for 1993 to 1996 suggest that Donald Walker was paid $5,390 in each of the financial years 1993 and 1994, $7,500 in the 1995 financial year and $5,000 in the 1996 financial year. The general ledger of Donald Walker's company records payments of $5,000 in each of the financial years 1997 to 2007 both inclusive. Counsel referred to Donald Walker's evidence that he received the wage of $5,000 a year "purely for tax reasons". Counsel submitted, however, that Donald Walker would never have abandoned his company structures and could not point to any loss of salary and, therefore, had suffered personally no loss during the relevant period. Alternatively, there was a 25% chance that he might have abandoned the company structure.
3. I refer to my earlier reasons for rejecting this analysis.[258]
4. Counsel further submitted that if the losses suffered by the relevant companies were treated as if they were his personal losses, he had failed to prove that there was any loss flowing from a diminution in the capacity after the incident except for losses in the two quarters that immediately followed August 1993.[259]
5. Assuming, however, that Donald Walker can recover compensation on the above basis, Counsel submitted, on the basis of Mr Ivey's assessment, that the figures should be no more than $16,011 in respect of the 1994 financial year assessed loss after tax[260]. Mr Donaldson's analysis for the 1994 financial year after-tax loss of $30,821 should be rejected because Mr Ivey's analysis is to be preferred and because Mr Donaldson's methodology should not be accepted. I will consider the arguments attacking the opinions of Mr Donaldson and Mr Ivey below.
6. Counsel for the first defendant also submitted that an allowance of 10% for vicissitudes[261] should also be made to address the ordinary vicissitudes of life unrelated to the incident such as premature death or unemployment. This reduces the appropriate figure to $14, 410 (para.65 or 45). In addition, counsel submitted that allowance has to be made for a more substantial vicissitude, namely that, if the incident had not occurred, Donald Walker would have pursued the staging of a second dance party and other company projects rather than exercising his earning capacity as an insurance agent.
7. As to the future losses, counsel for the first defendant, as I understand it, adopted Mr Ivey's analysis and adopted a similar allowance of 10% for vicissitudes.
8. As to interest, counsel submitted that the discretion available under s.60 Supreme Court Act 1958 should be exercised to apply a rate of 7% because of the dilatoriness of the plaintiffs in prosecuting the case. I will seek further submissions on interest after my reasons for decision have been published.
9. Counsel for the second defendant submitted that, assuming that there was a loss of earning capacity, the second assessment of Mr Ivey[262] should be adopted.[263] He submitted that using Mr Ivey's calculations, the past loss for the 1994 to 2007 financial years both inclusive, should be assessed at $239,504 gross and $125,427 net (para.193). Counsel noted that the assessment of projected earnings was based upon three years of financial data preceding the event namely, 1988, 1989 and 1993. The revenues for 1991 and 1992 were excluded because of information that Donald Walker had spent considerable time away from insurance sales in those years and there was no information in respect of 1990. 1981 was excluded because of its distance in time from the incident and the changes that had occurred to the insurance sales industry in the mid 1980s. Mr Ivey used as his multiplier the CPI to convert the sample year's revenue to 1994 values and then to calculate projected revenue for each year thereafter using the CPI. The adjusted average for the three base years was $155,892. He then compared the actual revenue of Sound Investments Pty Ltd from insurance commissions to determine whether the actual revenue fell short of that projected using the CPI. Counsel noted also that Mr Ivey treated as zero the results of those years where revenue exceeded expected revenue (1997, 1998, 2000 and 2007). Counsel argued that this approach was most favourable to Donald Walker and revealed a lack of bias.
10. As to future economic loss, counsel for the second defendant also relied upon the evidence of Mr Ivey. Counsel referred to his alternative 2 based on an average loss from 1994 to 2007 of $10,299 net per annum. The weekly equivalent was under $198 per week. This was projected to May 2006 (assuming retirement at age 65 - 8.86 years) using the CPI but discounted to 5% to produce a figure for the present value of the loss of $74,102. Counsel submitted that to this should be applied a general figure of 15% for vicissitudes leaving the assessment of the future loss at $62,986.
11. In justifying the 15% figure for vicissitudes, counsel for the second defendant submitted that Mr Donaldson only took into account mortality factors in applying a discount of 5% and not other factors. He listed the following other vicissitude issues.
    • The pursuit of non-profitable business ventures
    • Downturns in insurance industry arising from general economic recession, corporate failures or other adverse events such as the Four Corners investigation
    • Taxation and legislative reform with regulatory workload increases or which render particular segments of the industry unattractive to customers
    • Further loss of driver's licence
    • Non-compensable injury or illness
12. I note that counsel for the second defendant also took Mr Donaldson's calculation of the past loss of $478,908 over 14 years and arrived at an average loss figure per annum of $34,208 or $655.60 per week. Applying a valuation factor for 10 years (from age 55 to retirement at 65 of 401.30), he calculated a future loss figure of $263,091 (para.189).

1. The starting point in the determination of these issues is the assessment of the evidence of both Mr Donaldson and Mr Ivey. It is necessary to consider the criticisms levelled at the evidence of each and to determine whether and to what extent the evidence of either is of assistance in assessing damages for past and future loss of earning capacity.
2. While there is value in the evidence given by Mr Donaldson about the insurance industry at different times, and some aspects of his assessments, his attempt to quantify the likely loss of earnings appears to me to be fundamentally flawed, because of his use of the 1981 year as his datum point and the use of the AWOTE figures. It has a logical basis only for the latter part of the period 1981 - 1993 when Donald Walker had changed to selling risk insurance. The evidence of Mr Donaldson and the concerns relating to it, are contained in Appendix O.2 (Analysis of expert evidence regarding Donald Walker's loss of earning capacity).

1. Mr Ivey presented two major reports to the second defendant - in particular, one dated 26 April 2007 and the other dated 30 May 2007. It is the second of these upon which reliance is primarily placed by the defendants. A distinguishing feature of Mr Ivey's approach is that he used the CPI in calculating the base year figure and each year's projected earnings. He did so on the basis that it would fairly, over the period in question, reflect changes in probable earnings for a person in the position of Donald Walker as an insurance agent. In the case of an insurance agent, however, I consider this to be a less satisfactory mechanism than the AWOTE mechanism for the period during which Donald Walker was selling income protection insurance; for commissions obtained by Donald Walker in respect of such insurance were likely to follow changes in income levels in the community. Income levels, however, less directly interact in the CPI. Mr Ivey had proffered the opinion that the CPI was a better index to use because an insurance agent's income can fluctuate violently. At the same time, it was apparent that Mr Ivey had not the knowledge, nor had he attempted to acquire the knowledge, as to which of the indices moved the faster over the relevant period. On the other hand, the CPI approach may be justified on the basis that it translates past income figures into later values. We do not know, however, what difference would flow if the AWOTE figures were used. I turn to the assumptions of Mr Ivey.
2. In the first report Mr Ivey calculated a significantly higher figure for past economic loss and future economic loss, namely $187,914 and $202,714 respectively. The approach taken in the second report, however, differed in at least two respects from the approach taken in the earlier report.
   • Years selected In the first report, the years used to determine that average pre-incident earnings were 1981, 1988 and 1990. In the subsequent report, he used more appropriate years; 1988, 1989 and 1993. As noted above, this produced the average base figure of $155,892[264]. In the second report, the explanation given for not including the 1981 earnings was the extended time that had elapsed between 1981 and the incident and the changes in the insurance industry in that time and the inconsistency of the 1981 figure with the more recent records. In the course of his oral evidence, Mr Ivey said that he had excluded 1990 because he had no information and he excluded 1991 and 1992 because, on the material supplied to him and the evidence of the plaintiff he had been shown, Donald Walker had spent a considerable time out of the insurance industry in those years[265]. Mr Ivey indicated also that he assumed that some nine months had been disrupted by the Dance Party issue over two financial years. On the evidence before me, it and the other ventures had also affected 1988 and 1989.
   • Use of expense/percentage Another difference between the two reports was that in the initial report Mr Ivey used a 20% figure for expenses - 20% of gross takings. In the second report, however, he calculated the percentage of expenditure to gross takings which appeared in the various actual annual financial statements from 1994 to 2007 and applied the same percentage to the relevant annual extrapolated projected commission figures which he had calculated to determine net taxable income for each year. The percentages were significantly more than 20% - averaging about 44%. This was demonstrated by him in the following table.

1. The above differences contributed to the significant reduction of the estimated past income loss and future income loss in the second report.
2. The validity of the projections made and the assessment of the net losses depend on the assumptions made. There are, however, several assumptions made which are erroneous and significantly affect the estimate of losses in the defendant's assessment.

1. In essence, Mr Ivey relied upon the years 1988, 1989 and 1993 as fairly representing the commissions that would result from Donald Walker fully exercising his earning capacity prior to the incident. He used them for the purpose of calculating the pre-injury average income. He used that figure as his base to estimate projected commissions for comparison with post incident commissions and assessment of losses. In doing so, he proceeded on at least the following assumptions. I am satisfied that these assumptions are not correct.

(a) Hours of work in the two periods were comparable

(i) Donald Walker was working full time in the insurance industry in 1988, 1989, 1993 and that, therefore, the average figure arrived at was a valid figure.

First, in the base years considered by Mr Ivey, Donald Walker was not fully using his earning capacity. I accept Donald Walker's evidence that from 1988 to 1993 he was not working full time as an insurance agent and was just as much involved with their other businesses. He liaised with his brother to discuss what he had done in relation to them and went to meetings they had to attend together and see the relevant people. For example, In 1987 and 1988 they did a lot of work in planning the Dance Party visiting various sites for that purpose and that work continued to 1991. The reality was that in the years 1988, 1989 and 1993 Donald Walker was caught up in other activities with his brother and was not fully applying himself to his insurance business.

Secondly, the absence of his driving licence was also an impediment to his business in the base years. The details are unclear. He lost his licence for three months in 1977 and for 12 months in 1978. Subsequently, he lost his licence for two years twice, with a month only between the end of the first period and the commencement of the second. The last occasion was in 1992 and it was 15 months before it was returned to him. Precisely when the earlier two year cancellation occurred is unclear. It appears that he had readings in 1986 of 0.08, 0.11 and 0.08, and in 1989, of 0.07. With his history, a lengthy cancellation for these offences was likely. If there was the one cancellation, the charges may have been dealt with together.

(ii) After the incident Donald Walker, together with those engaged by him, was not working greater hours than he worked in the base years, although the components may have changed.

Since the incident, Donald Walker appears to have devoted more effort to his insurance business than he did in the few years before it. In addition, he has engaged people to do work he used to do, particularly telemarketing. This has given him more time in which he could look after clients. The probabilities are that the total working hours of those engaged in his business post-incident have exceeded those worked by Donald Walker in the base years pre-incident.

1. Ivey assumed that there was the same mix, at the same rate, of sources of income (new commissions, churning, trailer commissions and sale of trailer commissions) before and after the incident.
2. The assumption as to the same mix and rates of commissions was incorrect because of changes in the industry and agencies. I accept Mr Donaldson's evidence about increases to commissions on risk insurance introduced in the mid to late 1990s and the special rates attaching to subsequent premiums significantly greater than the previous system of trailer commissions. The commissions also increased because the premiums on the risk policies increased with the age of the insured. Also of significance was the extensive practice of churning introduced post-incident. This was particularly significant. There was also the sale of trailer commissions in 2006 and 2007. They did not feature in the pre-incident income and therefore distort the comparison and understate the loss.

1. Ivey assumed that fluctuations that were revealed in the years following the incident reflected the normal industry fluctuations. This was also incorrect. Mr Ivey appears to have either ignored, or not been told, for example, that the reduction in gross earnings in 1994 was caused by the injury (conceded by the first defendant at least). In addition, he would appear to have been unaware of the evidence which I accept that there were at least three other financial years in which Donald Walker was unable to "push through". One was in 2001 because of the operation and the period involved in recovery from it together with the deterioration in his physical condition and treatment at that time. Other years when he was too ill to apply himself were 2003 and 2004.
2. Another matter which he did not consider and which appears to me to be relevant is the connection between the fluctuations and money spent on telemarketing. I suggest that it is significant that in the last three years, substantial income has been generated and at the same time substantial sums have been spent in engaging telemarketers - the last, Sheehan, being a professional telemarketer.
3. The failure to consider the significance of the telemarketing aspect is confirmed by Mr Ivey's report of 21 May 2007 in which he examined additional financial information that had been supplied. In that report, he directed his attention to a number of items of expenditure, and whether they might or might not be related to the incident, such as taxi fares, motor vehicle expenses and sub-agents and drivers fees. He made no reference to the significant items of telemarketing expenditure commencing in 1996. But the figures he had collected recorded no expenditure for telemarketers from and including 1991 to 1995 and sub-agents and drivers' fees of $668 in 1992 and $8,778 in 1995. The telemarketing figures stand out in the documents attached to the report as significant items of expenditure from 1996 to 2003. I note that he did consider, and dismiss, the "sub-agent and drivers' fees" item on the basis that there was "no evidence" that the increase shown in 1995 was due to increased driver costs or related to the incident. He also noted that such an item was also incurred in 1989, well before the incident. As to the much larger telemarketing items, he appears to be silent and uninterested. Finally, the assumption ignores the effect of churning and the sale of trailer commissions totalling $34,000.

1. Mr Ivey assumed that there had been no specified change in expenditure in the business after the incident. I note, however, that major items of expenditure such as sub-agents and telemarketers were not features of the pre-incident business but were a significant part generally of the expenses in the post incident period. Whichever way the issue is considered, the application of the expense percentage, calculated by reference to the post incident years, when applied to the projected earnings, is likely to have resulted in figures which understate the nett projected income from commissions that would have been received for the period following the incident. For, if the incurring of such expenses did not result in an increase in income, then its use in calculating nett projected income will have inappropriately reduced that figure. If, however, the expense did result in an increased income, then the result will be an understatement of nett projected income because the base income used to calculate the projected income did not enjoy the benefit of that expense. To achieve the same expense/income percentages as existed prior to the incident when telemarketers were not engaged, what would have been required was that the percentage increase in costs to secure commissions was matched by the same percentage increase for commissions received.

(e) Addition of clients and quality of insurance book

1. Mr Ivey assumed that Donald Walker was adding new clients at the pre-incident rate and the quality of his insurance book remained the same. This was not so.
2. He conceded that he did not have any information as to whether Donald Walker was selling his book of trailer commissions and including the proceeds as income. He had no information that Donald Walker was earning the figures he did through a change to churning policies.
3. By making the above erroneous assumptions, Mr Ivey was able to express the opinion that, on the work that he had done, it looked like Donald Walker's income had essentially recovered after the incident and that therefore the incident hadn't had much effect on his earnings. In the course of cross-examination, however, he did concede that an explanation for the projected earnings being lower than actual earnings was that his projections were too low.

1. Thus, Mr Ivey's assessment is fundamentally flawed and flawed significantly in the defendant's favour. In spite of that, his assessment demonstrates that in ten years there was an adverse pecuniary impact when actual earnings were less than his projected earnings.
2. As to the alleged four profit years, Mr Ivey claimed that, in ignoring "profits" of projected earnings over actual earnings, his assessment favoured Donald Walker; for, strictly, as argued by defence counsel any such "profits" should be taken into account. Initially, I considered that there was no basis upon which they could have been brought into the calculations. I did not understand the defendants to be arguing that they are entitled to any financial benefit that may have flowed from the injuries. On further reflection, it is necessary to consider the economic loss over the whole period of 1993 to the present, and therefore all income received is relevant.
3. The calculations reveal that the net "profit" figures were as follows:

making a total of $45,001. The average "profit" is $11,256 over the four years in question.

1. Ultimately, the issue of how to deal with "profits" is academic because of the flawed assumptions of Mr Ivey. For example, taking one issue, and adjusting for the underestimation of the pre-incident capacity by a modest percentage, say, 10%. This would essentially remove any alleged net "profit" of actual net income over project income. In addition, it needs to be remembered that the losses calculated for 2006 and the alleged profit result in 2007 depended in part upon the inclusion of the proceeds of sale of trailer commission in respect of which there was no evidence of that practice in the years relied upon prior to the incident.

19.4 (D) ASSESSMENT OF ECONOMIC LOSS OF DONALD WALKER - RELEVANT DATA

1. Set out below is a table of items taken from the actual earnings prepared by Mr Ivey for each financial year. The table of items below shows the actual gross income for each year which can be compared with the money spent on telemarketing and other expenses. There is no perfect correlation and none should be expected, if only because of the complication of churning, an approach in which the telemarketers also helped. The years for which there was evidence given that churning occurred are marked *. As marked below, a study of the evidence shows that churning occurred in eight out of the 14 years. Of the eight years in which Donald Walker acknowledged that churning occurred, in seven of them the commissions range from $160,121 to $259,078. In one churning year, 2004, the commissions only totalled $102,636. In that year, his evidence was that his feeling of wellbeing was down and he did not engage sub-agents or telemarketers, people who had done much of the calling of clients for the purpose of churning. Plainly, a significant feature of the business after the incident, and one persisted in by Donald Walker, was the hiring of sub-agents and telemarketers and spotters, something that had not been a feature of his business prior to the incident. The total of these expenses plus taxis is approximately $250,000.

1. Both sides accept that there was some financial loss as a result of the incident. The critical issue is what financial losses flowed from the injuries to the earning capacity. In view of the inadequacy of the approaches offered by the parties through expert testimony, neither approach can be applied directly to assess damages for lost earning capacity. The challenge is to assess a reasonable amount for compensation in circumstances where an arithmetic approach is not feasible and normal calculations and extrapolations cannot provide clear guidance in the assessment of damages.

1. To recapitulate, the parties, with the assistance of their experts, have proffered the following assessments:

1. The gap between the assessments is considerable. One way to proceed, however, is to take the Ivey figures as the minimum and make adjustments to allow for matters he omitted. He at least started with relevant base years. Another approach is to ignore Mr Ivey's approach and to identify costs incurred by Donald Walker to mitigate his loss and losses suffered when he was unable to do so.
2. I will start with that approach.

19.4 (F) MITIGATION COSTS AND SPECIFIC LOSSES

1. An approach which avoids complex calculations and hypotheses is to focus on the costs incurred to enable Donald Walker to address the problems created by his injuries in running the business (the telemarketers, sub-agents and spotters) and to identify the particular years when the injuries plainly had an impact on his commissions. They represent the direct financial consequences of the incident.
2. Taking the first aspect, even when he did engage others to assist him he was still left significantly incapacitated in carrying out the other work that he was accustomed to carrying out. That included, of course, the critical area of meeting and persuading the persons identified by the telemarketers and the spotters to take out insurance. If he could not attend to a sale satisfactorily, there would be no commission. But on that basis, an amount for past economic loss would be awarded to cover the cost of mitigating his loss by engaging others to do the work he could no longer do totalling just over $235,000. (See above) As to whether this engagement might have increased his gross income, that was unlikely because they were doing work he would otherwise have done and hiring telemarketers would not compensate for the impact of his injuries and the consequences in, for example, failing to negotiate a sale of insurance. The significant changes to his personality, temperament and behaviour had plainly harmed his capacities in that area. Hiring telemarketers would not address that deficiency.[267] It is reasonable, therefore, to treat the cost of addressing his loss of capacity as a telemarketer as being $235,000.
3. The other aspect to consider is whether the evidence demonstrates that in particular years there was at any time a clear loss of commissions resulting from his injuries and their consequences.
4. On the evidence before me, there were four financial years during which I am satisfied Donald Walker was not able to battle on and earn commissions at a level otherwise achieved post-incident. Those financial years are 1994, 2001, 2003 and 2004. On Mr Ivey's figures, the average gross commissions for the 14 years following the incident were $164,012 per annum.[268] Subtracting the gross commissions earned in the four years from the annual average produces the following loss figures:

1. Those figures need to be reduced to a net after tax figure.

1. Combining the cost of mitigating the loss and the net after tax losses for the above years, a total is produced of $363,816.22 representing direct financial losses incurred in the past as a result of the incident. In my view, these are conservative figures.
2. I turn to the other approach - adjusting Mr Ivey's figures by correcting his erroneous assumptions.

19.4 (G) ADJUSTING FOR ERRONEOUS ASSUMPTION AS TO HOURS OF WORK PRE-INCIDENT

1. Mr Ivey assumed that Donald Walker had been working full time as an insurance agent prior to the incident and not exceeding that effective working capacity with the assistance of others after the incident. However, prior to the incident, Donald Walker was not working full-time because of his other interests and the absence of his driver's licence.
2. Looking at the range of annual figures produced, and the evidence as to his other activities, a cautious approach to correcting the assumption would be to add 20% to the indexed figures used for the hypothetical 1994 gross base earnings figure - resulting in an increase of approximately $30,000.00 and a total of $185,892[270] as the average base figure to which Mr Ivey's method of calculation of the projections for 1994 to 2007 could be applied.
3. Turning to the assessment of past losses, and using Mr Ivey's "profit" and "loss" years, an approach less favourable to Donald Walker, one could take the following approach:
   • Loss years Add $30,000 to each of the losses identified in Exhibit SV23A in the years from and including 1994 to 2007 giving a figure of a further $300,000.(10 loss years of Mr Ivey) After deducting 46% tax from $300,000 a figure of $162,000 is produced. The Medicare levy of $2,430 should also be deducted, leaving a total of $159,570 after tax. When that figure is added to Mr Ivey's after tax figure of $125,427 the total produced is $284,997.
   • "Profit" years As to the years where Mr Ivey's projections showed a larger figure for commissions than projected earnings, the gross adjusted projection figure of $120,000 (4 years x $30,000) would need be reduced by Mr Ivey's alleged profit amounts of $45,000 ( see calculation above) to say, $75,000 before being considered. The after tax figure to be added would be $40,500 (using a tax rate of 46%). The Medicare levy on that amount would be $607.50 reducing the after tax loss to $39,892.50.
4. Adding it to the above adjusted figure of $284,977 produces an after tax loss figure post accident of $324,889.50 - say $324,890.00.
5. Alternatively, a simple and valid approach is to make no allowance for the projected profit years because of Mr Ivey's flawed assumptions and to add the $30,000 after taxes to each year. That produces the following result:

Adding that figure to Mr Ivey's figure of $125,427 produces a total of $348,825.

1. I note at this point that no allowance has been made for the other erroneous assumptions with the result that the above figures make no allowance for
   • The inflating effect of churning on the actual earnings and its negative effect on the value of Donald Walker's insurance book and Donald Walker's inability to build that book through new clients,
   • the increases in premiums and commissions that occurred during the years of projected income,
   • the impact of the use by Mr Ivey of the expenditure percentage which would have, in my view, lowered his projection figures inappropriately.

The result, therefore, is that to rely on the above figures is to take a conservative approach.

1. No allowance has been made for the losses that would have flowed because he was not able to qualify as an investment adviser and has been denied access to Centres of Influence. They should be taken into account as positive vicissitudes, the benefit of which was denied to Donald Walker between 1993 and the present, affecting the period of the projected income. The matters listed by counsel for the defence should also be taken into account. I refer to the possibility of the pursuit of non-profitable business ventures at least for some years into the future if the incident had not occurred, which would have reduced the amount of time available to devote to the insurance business. Other matters are, of course, the possibility of injury or illness, further loss of driver's licence, regulatory changes and adverse publicity. The first defendant has argued for a discount of 10% and the second defendant has argued for a discount of 15%. Counsel for the plaintiff did not nominate a discounted figure. Balancing the relevant matters, a figure of 10% appears reasonable.

1. The three approaches produced the following results:

(a) Mitigation costs and direct losses - $363,816.22

(b) adjusting for erroneous assumption as to hours worked pre-incident

(i) accepting Mr Ivey's "profit" year analysis - $324,890.00

1. The matters noted above which were not covered, support the conclusion that the above figures do not fully address the economic loss suffered over the 14 year period. Bearing that in mind, and the figures produced by the alternatives, it may be said that a reasonable estimate for past economic loss before allowance for vicissitudes would be in the order of at least $400,000.[271] Applying the 10% deduction for vicissitudes to that figure produces a figure of $360,000 for past economic loss. I note also that the assessment of past loss only takes the issue to 30 June 2007. The amount spent on telemarketing that year was $30,536.

1. Mr Donaldson did his calculation of future loss on the basis that as at 30 April 2007 Donald Walker was aged 55 years and would cease working at age 70. He described his calculation as the value at 30 April 2007 of an annual loss of $117,028 (2,242.77 per week) discounted at 5% per annum of a regular income of $1.00 per week to a male aged X ceasing at 70 (other ages were mentioned). He took account of mortality according to the Australian Life Tables 2003-5. The multiplier selected was "528.7" to arrive at his figure of $1,185,755.00.
2. Mr Ivey adopted a figure of an annual net loss of $10,299 after tax.[272] He adopted a retirement period of 8.86 - to age 65. He too applied an annual discount factor of 5% but this resulted in a multiplier of "7.2" which he applied to the annual net loss to arrive at $74,102.

1. An issue to be resolved is the retirement age to be selected for the purpose of any assessment. The defendants submitted that Donald Walker's stated intention that he had always intended to work until age 70 should be rejected as too easy to proffer. Donaldson's evidence that most successful salespersons continue in the life insurance industry until well after age 70, was criticised as not being supported by any data. What Mr Donaldson said accords with trends today and I accept that he is familiar with the industry and should be accepted. Putting that aside, however, and focusing on Donald Walker's evidence, it is clear from his and other evidence that he is a person with a very strong work ethic who, over the years, has enjoyed the opportunities and benefits his excellent income has provided him. In my view, uninjured, he would have worked until 70 and there was a high probability that he would have worked beyond that. There is an added reason. There is no evidence in the financial records produced, and nothing to suggest, that Donald Walker has any substantial assets to fall back on in retirement. I note that he took time to repay the Dance Party debts and had to borrow money from his friend McCrae, and others, to help fund that venture. On the evidence before me, he is someone who will need to work, as long as he is able, to provide for himself.

1. Looking to the future, having regard to the consequences of his physical and psychological injuries, his future working life is likely to involve the same problems as have emerged in recent years even with whatever slight improvements may follow from the removal of the stresses and distractions of this case. He will need to engage telemarketers. He will resort to churning when he can. There are likely to be similar periods when he cannot "push through". That reality is in fact heightened by the fact that he will not be driven to push through by the need to fund this litigation or by an immediate lack of funds to support himself and his brother.
2. That scenario involves taking a positive view of his future health, that is, that it will not deteriorate. The evidence suggests that it has plateaued. On the evidence, there is a prospect of some slight general improvement with the successful completion of this litigation but there is a real risk of him having to take heavier dosages of morphine even if it be assumed that his physical condition will not worsen.

1. In determining the future loss, a question to be resolved is what figure should be adopted for the financial loss per annum existing as at, say, 30 June 2007. I will, for present purposes, proceed with Mr Ivey's figure of $10,299.99 per annum and adjust it having regard to the assumptions he made in arriving at a figure for past economic loss. I will apply approaches similar to those earlier identified.

1. Mr Ivey's base figure requires adjustment. One is required because of his underestimate of his base figures for which I have suggested the addition of a figure of $30,000 p.a. The other is required to reflect Donald Walker's need into the future to incur the expense of telemarketers.
2. Therefore, I first add $30,000, reduced for taxation, to bring the net pre-incident projected average indexed loss calculated by Mr Ivey up to a figure reflecting the impact of lost capacity on the base years. After allowance for income tax and Medicare levy, an amount of $15,951 is produced to be added to the figure of $10,299.99 making a total of $26,258.90.
3. As to the telemarketing expense, Donald Walker will need to be compensated into the future for the need to engage telemarketers to do his cold calling. Telemarketing in 2007 totalled $30,536. This added to the above figure produces a total of $56,794.90.
4. That approach assumes that the telemarketing expense would not itself increase commissions above what Donald Walker might otherwise have achieved. Bearing in mind the reduction in his capacity to achieve sales, it is reasonable to proceed on that assumption for present purposes. Further, it is clear from Mr Ivey's very conservative calculations that losses have still been suffered in spite of substantial expenditure on telemarketing. Bearing in mind the other erroneous assumptions not taken into account and the sort of money Donald Walker had been able to earn, a future loss of $1,000 per week would be a conservative figure. The total arrived at above is only very slightly above that figure.
5. An alternative approach is to look at the likely annual future additional costs and losses if he continued working. They would include:

(i) the future costs of telemarketing - $30,536 in 2007;

(ii) the cost of likely future collapses when he cannot push through - $16,464 in the past.

1. Those figures total $47,000 and, when added to the annual loss of $10,299.99 conceded by Mr Ivey produces a total of $57,299.99.
2. Thus the two approaches for assessing future loss produced the following figures:

The average of those figures is $57,047.44 or $1097.06 per week.

1. I propose to take a figure of $1,100 per week, one which appears in all the circumstances to be a reasonable figure, and applying the multiplier used by Mr Donaldson of 528.7, the result is a figure of $581, 570. Applying a discount of 10% for vicissitudes results in a figure of $523,413.
   • 19.5 QUANTUM OF DONALD WALKER'S DAMAGES FOR ECONOMIC LOSS
2. The uncertainties of the past and future have been taken into account as far as possible. Factors have been left unassessed which affect the figures calculated but they predominantly favour the defendants.
3. To sum up, my analysis has resulted in the following assessment and calculations:

1. Standing back and looking at the amounts arrived at on their own and in combination, I am satisfied they reflect fair and reasonable compensation for lost earning capacity.

SECTION 20 ECONOMIC LOSS CLAIM - MARCUS WALKER

1. Counsel for Marcus Walker submitted that the impact of his psychological injuries has been such that he cannot obtain gainful employment and will not be able to obtain gainful employment in the future. Counsel also submitted that for the purpose of determining compensation for that loss of earning capacity, regard should be had to the minimum that he was likely to make in the least lucrative of his potential occupations and then add something for the likelihood that he would in fact have followed other occupations. On that basis, it was put that the minimum would be the university teacher scenario.
2. Counsel submitted that Marcus Walker's evidence should be accepted that at the time of the incident his intention was to advance another Dance Party in 1994 and return to study at university, something he could manage because of his ability and capacity for work. Counsel drew attention to the evidence that in 1998 he applied to do law at Sydney University and was accepted. He noted also that more recently he tried to obtain employment in the hops industry.
3. Counsel conceded that Marcus Walker was not someone driven by the desire for money. It was important to him to do things that interested him. Counsel accepted that, between his employment at Monash and the incident, he had been exploring other options and was trying to decide what direction to take in the future. Counsel said he then still had a number of irons in the fire. He was still thinking of medicine and other directions. He did not have any responsibilities, was a free agent and had a generous brother who was effectively supporting him while he was engaged in their joint ventures and caring for their mother.
4. As to quantum, Marcus Walker relied upon the initial calculations by Mr Ivey, the expert engaged and called by the State of Victoria.
5. Referring to the issue of the vicissitudes of life, counsel for Marcus Walker submitted that taking the Ivey report analysis of the average university employed teacher or academic, regard should be had to Marcus Walker's capacity for work, his qualifications and his application to everything he had done in his life. Counsel argued that these qualities marked him as someone above average so that the damages involved should be increased to reflect that the bare average was not enough.
   • 20.2 DEFENCE SUBMISSIONS AND ANALYSIS

1. Counsel for the first defendant submitted that Marcus Walker had not proved that his earning capacity had been impaired. Counsel argued that his evidence was overstated and lacked realism and credibility. A number of alleged examples were advanced in support of this position.
2. Generally, counsel's arguments assume that Marcus Walker's conduct, when seeking to address the injustice that was the cause of his disorder, should be capable of repetition in areas unconnected with the injustice. But as a result of the shock of the events and injuries to his brother and mother, the perceived injustice of those events, which was reinforced by the course of resistance adopted by the first defendant, Marcus Walker has been severely psychologically impaired and this has affected his behaviour in all other areas of his life. He became preoccupied with the incident and the pursuit of justice and they have become the focus of his life and means that he is driven to deal with the events and their consequences. He has been able, for example, to find within himself, at considerable cost, a capacity to respond to prolonged questioning in the witness box. Observing him, however, it was plain that he found it extremely difficult and a huge effort. He struggled to focus on the issues at hand and struggled for precision and focus in his answers.
3. The submissions of counsel for the first defendant ignore the reality of his psychiatric illness and the opinion of the defence expert Dr Sale that "the plaintiff appears to be unfit for any form of employment". The arguments are discussed in Appendix D (Allegation 6: Credibility issues relating to the economic loss claim of Marcus Walker). For the reasons there advanced, I do not accept these arguments.

20.2 (B) NO PROOF OF LOSS HAVING FLOWED FROM ANY LOSS OF EARNING CAPACITY

1. In the alternative, the first defendant argued that if Marcus Walker's earning capacity has been impaired because of the incident, he has not proved that he would have used his earning capacity to produce financial returns for himself if the incident had not occurred.

Defence Submission - no desire for academic or other careers

1. Counsel submitted that the evidence revealed that Marcus Walker had no desire for an academic career and in that regard had:
   • Given no satisfactory explanation for leaving Monash University; and
   • Produced little or no evidence of an intention to return to academia.
2. Counsel also submitted that the evidence revealed that Marcus Walker had no desire to pursue a serious career. The matters raised are discussed in Appendix N3 (Proof of Loss). For reasons there set out, I do not accept these submissions. The following matters, however, should be noted.
   • Past work patterns Marcus Walker's history reveals changes of work and changes of direction. Accepting that proposition, it would follow that in the period after the incident to the death of his mother, a return to an academic career in science, should be seen as simply one of the possibilities. In that regard, it should also be noted that to resume that career would have required a degree of retraining or further post-graduate work. It could not be said, however, that he had rejected academic careers. He had in fact explored that possibility on several occasions following the incident.

On the evidence, I have concluded that the complication of his mother's illness was a significant factor in him not pursuing his academic career after Monash University.

• Most likely future career? While he had shown an interest in pursuing various business ventures, particularly prior to the incident, accepting that the ventures pursued were unlikely to succeed, it seems to me that that most likely career future for Marcus Walker would have been further academic training leading on to a professional career including one at a University.

1. Views must be formed about the extent to which Marcus Walker was likely to engage in paid employment having regard to his mother's ill health and whether and if so at one point, he and Donald Walker would have decided not to continue to pursue the various business plans that they had. These latter issues were taken up by counsel for the first defendant in the next submission.

1. Counsel for the first defendant raised the issue as to whether, having regard to the care he gave his mother, he would have been able to find employment while she was alive.
2. Relying on the evidence of Marcus Walker, counsel submitted that on his return from America he commenced caring for his mother, describing himself as the principal carer. While he was at Monash he would care for her between 10 to 20 hours per week. Counsel referred to his evidence that from 1988 to 1992, he cared for her for more than one or two days per week but less than 2.5 days. By 1993 he was attending and assisting his mother at least every day or every alternate day and caring for her between 20 and 40 hours a week. Counsel also referred to his evidence that the time he devoted to her care increased as she reached the end of her life. I note his evidence that they moved to Sandy Bay in 1998 and that he was with her full time from then until her death in 2001.
3. Defence counsel also relied on the fact that counsel for Marcus Walker conceded that he would have taken it upon himself to care for his mother in her later years regardless of the incident.

Priority: company ventures not paid employment?

1. Counsel also submitted that, absent the incident, and his mother's ill-health, there was a very low prospect that he would return to paid employment so long as he was involved in the pursuit of the company ventures. Counsel also submitted that in the latter part of 1993, some five and a half years would have elapsed since he had worked in the academic sphere and it would have been very difficult for him to find employment in academia which is competitive and challenging.

1. Some valid issues are raised, if overstated. A view has to be formed as to the impact of these matters. In light of all the evidence about this man and his past work and academic history, I am satisfied that he would have returned to paid employment. The issues to be resolved include when and to what extent.

1. Counsel also referred to matters personal to Marcus Walker which he submitted would have prevented him gaining employment.

1. Counsel submitted "both psychiatrists observed" such a personality. It was Dr Sale who elevated this to a major issue not Dr Pargiter. Dr Sale's evidence lacks credibility and should be rejected. The fact that there were narcissistic features identified by Dr Pargiter refers to his observations when he first saw him many years after the events. In any event, many successful people have narcissistic features in their personality and, as Dr Pargiter said in the course of the evidence relied upon, he was referring to his self-regard (which Dr Pargiter said was very strong) but which he said is not necessarily adverse. He gave no evidence that this was a problem. He said "a little self-love is very necessary for us all".

1. Counsel argued that there was evidence of emotional difficulties such as the letter to the Minister for Police in June 1989. The letter (SV 8) is strong and demonstrates his loyalty to his brother. It does not demonstrate emotional difficulties as such.

1. Counsel drew attention to McRae's evidence that he saw him prior to the incident "tottering" around the garden at Tecoma, and his evidence of not wanting to say something about the garden "without trying to destroy his feelings".
2. McRae later withdrew those descriptions. He did not otherwise describe Marcus Walker as walking in such a way or describe any debilitated physical condition prior to the incident.[273] In fact, he described him as being an athlete at that time. As to not wanting to destroy his feelings, McRae indicated that he never liked to hurt people's feelings and he did not treat Marcus Walker any differently to other people.

1. The principal arguments advanced for the defence should be rejected for the reasons given. There remain, however, the issues of
   • the potential effect of the pursuit of the business ventures and
   • the care of his mother.

on his exercising of his earning capacity from 1993 to 2007.

20.3 IMPACT ON PAST EARNING CAPACITY - INCIDENT AND NON-INCIDENT FACTORS

1. I am satisfied that, for the reasons given, there was a causal connection between the assaults on Donald Walker and Marcia Walker and the onset and development of Marcus Walker's psychiatric illnesses. I am satisfied that initially, and for a short period, this may not have appeared severe, particularly in the context of his mother's and brother's state. However, from the outset he was profoundly shocked and shaken by what had occurred, and the injustice he saw as being done to his brother and his mother. It was not long before he became so preoccupied and focussed on his pursuit of the truth and justice, that he was not capable of sustaining consistent employment. His earning capacity has deteriorated over time.
2. I note that Dr Pargiter, speaking about the impact of the psychiatric disabilities described him as being, in the first few months of consultations, which began in early 2001, someone who had the capacity to work. He said, however, that with time he became more agitated and more disturbed and the chances of employment[274] were slight to non-existent. Counsel for Marcus Walker argued that the earlier period was no more than a possibility - that it was possible that he could work and then it became slight to non-existent.
3. He is now at a point where he cannot sustain employment and his ability to do so in the future is most unlikely. The assessment of the damage for past loss is complicated, however, by the two issues mentioned above - his pursuit of the business ventures and his caring for his mother. They are considered in the next section.
   • 20.4 LIKELY USE OF EARNING CAPACITY - 1993 - 2007

1. I turn to the issue of his likely use of his earning capacity between the date of the incident and 2007 if the incident had not occurred.
2. His mother's illness and his commitment to her care were likely to have limited his employment opportunities in that period. So too was the decision previously taken with his brother, to explore other business ventures. The two commitments would have interacted.
3. As to the commitment to business ventures, I am satisfied that it was probable that they would have been pursued into 1994, particularly the Dance Party, and there was the possibility of them being pursued further.[275] I am satisfied that they were unlikely to be successful but the probabilities are that they would have continued the pursuit of those ventures, at least to the end of the financial year 1994. If they had been able to make a profit out of the next Dance Party that they were hoping to hold in 1994, they may well have continued with that aspect of their ventures, but that would have resulted in them earning income from exercising their earning capacities. On the evidence currently available, I think it unlikely that there would have been any financial success in that party and the probabilities are that Marcus Walker, being someone with a very strong work ethic, would then have turned to other forms of employment. He would have continued to be concerned, however, to ensure that he could play his part in caring for their mother and would have done so.
4. As to likely other forms of employment, his success in science and his obvious interest in the subject, points to employment in that area being a likely field of employment. This would, however, have probably necessitated further study - either to bring him up to date with research or to obtain suitable teaching qualifications. Likewise, if he entered law or medicine or some other field, that too, would have required further study.

1. A probable scenario to consider, therefore, is the following; the holding of a second Dance Party, the realisation that it and the other ventures were not viable, Marcus Walker returning to study in one area or another, and he continuing to care for his mother and probably working part-time.
2. As to the extent of that care, by 1993 he was giving 20-40 hours per week to her care on at least every day or every alternate day. By the late 1990s, however, more of his time was needed for the care of his mother with the result that, from 1998 to 2001, one should proceed on the basis that he would be her full time carer.
   • 20.5 PAST LOSS OF EARNING CAPACITY - QUANTUM

1. The parties rely on the evidence of My Ivey in different ways. The plaintiff, Marcus Walker, relies upon Mr Ivey's first report of 26 April 2007.[276] The defendants rely upon his subsequent reports of June 2007[277]. The latter reports are to be preferred because they are based upon significantly more information than was available at the time of the earlier report - including Marcus Walker's earnings at Monash University in the 1980s (between $22,000 and $25,000) from full time employment.
2. The approach Mr Ivey takes in that report (as he did in the earlier report) was to base the assessment on potential earnings of Marcus Walker. This approach was taken because Mr Ivey had reservations about the ability of Marcus Walker to generate earnings commensurate with the potential earnings of someone with his academic qualifications. His principal concern was that the plaintiff had earned little or no income in the four years before the incident. His assessment was therefore biased upon the potential earnings of a person with similar qualifications to Marcus Walker. He also had reservations in the plaintiff's case, however, because, if the assessment of earning capacity were to be based on his actual pre-incident earnings, then the conclusion to be drawn would be that his earning capacity was very low. He expressed the opinion in his report that Marcus Walker's earning capacity pre-incident would seem to lie between the two extremes.
3. He also explored the possible factors that may have affected Marcus Walker's earnings since the incident. There were 2 broad groups referred to;
   • the direct effects of the incident; and
   • the indirect effects of the incident and possible effects unrelated to the incident which included -
     • health issues unconnected to the incident
     • the time spent by Marcus Walker caring for his mother and researching for a cure
     • the time spent in unproductive businesses and possible stresses and lack of confidence caused by "considerable losses" in those ventures and their lack of development.

His analysis is, therefore, of relevance to the above scenario.

1. As to Marcus Walker's care of his mother, Mr Ivey's understanding was that Marcus Walker had described himself as his mother's principal carer from 1985-2001 and had spent between 10-20 hours each week looking after her - between 1.5 to 3 hours per day.
2. In his report Mr Ivey also noted that, on the basis of the evidence supplied by Marcus Walker about his earnings at Monash in the 1987 calendar year, and extrapolating that salary level out against post-graduate earning figures and university teacher earning figures, his Monash earnings were significantly lower than the average in those categories. He noted, however, the possibility of promotion and benefits from greater experience which may have enabled Dr Walker to improve his earnings.

1. Mr Ivey assessed Marcus Walker's potential earnings by treating the 1994 financial year as one in which there was no potential for earnings. He did so, relying on the earnings situation for the period from 1988 to 1993[278]. Thereafter he considered the following:
   1. The situation in and between 1995 to 2001 financial years. He proceeded on the basis that potential earnings should be based on his actual earnings of Monash University in 1987 indexed by the post-graduate AWE and reduced by 40% to allow for the disruption caused by the plaintiff's care of his mother. This is a conservative approach as to earnings and the percentage reduction is probably excessive on the information he was using.
   2. The financial years 2002-2007. He assessed Marcus Walker's potential earnings in 2007 on the basis of the average earnings of males with post-graduate degrees. The data was obtained from the ABS document entitled "Education and Training Experienced as 6278.0". This recognised the possibility that, free of caring for his mother, he would have been able to pursue full time employment and take advantage of his superior degree history.

In my view this general approach is a reasonable one.

1. To address the difficulty, as he saw it, that he could not proceed on any clear basis as to whether and to what extent Marcus Walker's earning capacity was affected by the incident or other factors, Mr Ivey produced three alternative calculations. They assumed that 30%, 60% and 90% of the apparent "loss of income" was due to the incident. These percentages did not include the making of an allowance for the care of his mother - that was dealt with separately. No specific allowance, however, was made for the fact that the plaintiff did not, as Mr Ivey put it in his report, "have a reliable or consistent work history before the incident or for the fact that he apparently earned no income in the five years before the incident."[279] Mr Ivey also assumed that Marcus Walker had earned no income since the incident. In assessing the potential income, he also assessed work related expenses and deductions at 6% of gross income. In his calculations of the potential financial benefits, he also included superannuation.
   • 20.6 PAST LOSS OF EARNING CAPACITY - 1993-2001

1. Counsel for the first defendant submitted that, assuming Marcus Walker has proved that
   • his earning capacity was impaired because of the incident; and
   • he could and would have utilised his earning capacity to produce financial returns for himself,

only a nominal amount should be awarded for past economic loss for the period 1993-2001

1. Counsel for the first defendant characterised the claim as being a claim for the lost chance to exploit his earning capacity and that applying the principle in Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, the award of damages should be heavily discounted to reflect the reality that, absent the incident, there was a high probability that Dr Walker would not have returned to a career in academia or any other form of gainful employment because of his involvement in the company ventures, and his focus on caring for his mother. Counsel argued that the evidence showed that his industry stopped when he left Monash in 1987 and repeated the line of argument, which I have not accepted, that he had essentially failed at Harvard and come home and the wheels fell off. It was as Counsel for the plaintiff had suggested, that he was homesick, wanted to see his mother and wanted to give his country the benefit of his skills. Counsel submitted that there was a 15% chance he would have joined the workforce (or an 85% chance that he would not have joined the workforce) in that period.
2. Taking Mr Ivey's estimate for the period, counsel for the first defendant referred to his third alternative figures[280]. Grossed up to 100%, and allowing a sum of $16,000 for the 1994 financial year, the resulting financial loss flowing from 100% lost earning capacity up to 2001 was approximately $156,000. The superannuation loss was estimated by the first defendant to be $10,015. Assuming a 15% chance that Marcus Walker would have returned to the workforce in the period, the value of past economic loss was $24,900.[281] As to interest, counsel submitted that the prima facie entitlements to interest under the Penalty Interest Rate Act should be adjusted using the discretion contained in section 60 Supreme Court Act 1958 because of the dilatoriness of the plaintiffs. Counsel submitted that an interest-rate of 7% only should be applied resulting in a figure of interest in the sum of $13,520 payable in respect of the damages awarded for past economic loss during the above period.

1. Counsel for the second defendant submitted that the chances of the second plaintiff having returned to gainful employment in this period in the absence of the incident were in the order of 20%. Counsel argued that there were a number of factors contributing to that situation, namely:

Marcus Walker had not been independently employed for the five years prior to 1993;

• As to academic employment, he had the disadvantage that he had not published material while at Harvard or at Monash;
• He had no specific intentions in mind for further study;
• He had shown a preparedness to spend time and effort in fruitless projects;
• He was being financially assisted by his brother and was not feeling the financial pressure of seeking paid employment.

1. Counsel for the second defendant submitted that the 20% figure was probably somewhat lower in the period leading up to February 2001 because he was engaged for significant periods in caring for his mother. Counsel also argued that, as the years went by, pursuing employment in academia became more difficult.
2. Counsel for the second defendant submitted that Mr Ivey's revised figures should be used.

1. The issue to be determined is the percentage discount to be applied to make due allowance for two matters.
   • Pursuit of business interests It was possible that Marcus Walker would have continued, if the incident had not occurred, to pursue the other business interests at least for another year. They had plans for another Dance Party in 1994 and it may have taken approximately two further years after 1993 for the reality as to those projects to be accepted.
   • Caring for Marcia Walker The probability was that Marcus Walker would have cared for his mother in that period and that that would have increased as time went on. In the period to 1995, in combination they would have resulted in him not engaging in paid employment so long as his brother was prepared to support him - a likely event.
2. Accepting that scenario, once the decision had been taken not to pursue business interests any further, there would have been a variety of options open to Marcus Walker to pursue employed work. He may have decided to pursue a different career from his career in science. He may have chosen to become qualified to teach at a secondary level for example. He might have simply decided to opt for lifestyle and obtain casual work or teach as a ski instructor in the winter.
3. There were many variables. For present purposes, however, I will consider a scenario where up to 1995, say two years, he would not have engaged in paid employment but in the next six years would have done so on a part time basis while he continued to devote himself to his mother's care. The evidence was that he devoted something like a total of 20-40 hours per week after 1993 on every day or alternate day. That would have left scope for him to obtain part-time employment. That scope would have declined in the last few years of his mother's life. On that basis, one scenario that could be considered is that for a 3 year period after 1995 he would have worked, say, 50% of the time in paid employment but thereafter till 2001 at say 20% of his time in paid employment. On that basis over a period of say, eight years, he could have worked in paid employment for an average of approximately 26% of the time overall. Taking the period of 7 years (ignoring 1994) , the figure is 30%.
4. The above, is only one scenario. It suggests, however, that the second defendant's figure of 20% for the entire period from 1993 - 2007, it is not unreasonable provided that an extremely pessimistic view is taken of what would have occurred after 2001 but for the incident. I propose to use that percentage; the potential variables are many and it appears to me to be a conservative figure.
5. Taking the 100% grossed up figures adopted by the first defendant for the period 1993-2001 but assuming no loss in 1994, a total of $150,000 of potential earnings may be calculated up to 2001 together with potential superannuation of $10,015. Assuming a situation where he would have spent 20% of his time in the workforce but for the incident, a figure of $32,000 would represent the value of past economic loss for that period.

I turn to the second period following the death of Marcia Walker.

20.6 (D) PAST EARNING CAPACITY LOSS - 2002-2007

1. As to the period from 2002 to 2007, Counsel for the first defendant submitted that having been out of the conventional paid employment fields, including academic employment, for some 14 years, it would have been almost impossible for Marcus Walker to reintegrate back into the workforce. Counsel submitted that the more of a track record one creates for not succeeding at anything, the less likely it is that one will because there has been demonstrated a capacity for inertia in a vocational sense. In particular, counsel argued that Marcus Walker had not been subject to the discipline that an organised work environment imposes. Counsel argued that the probabilities were that with his personality traits, his peccadilloes, his foibles, his deficiencies, Marcus Walker's taking up the opportunities in the relevant periods should be heavily depreciated.
2. Assuming he had the desire to do so, counsel argued that he would probably have experienced long periods of unemployment, assuming he gained any. And this would have further undermined his chances of finding employment. Counsel submitted that assuming he would have had the desire to return to the workforce in this period, his chances of doing so were about 10%. Using Mr Ivey's calculations for this, grossed up to 100%, the total loss approximated $313,000. Counsel submitted that such a figure is generous to Marcus Walker because it is based on the average earnings of all workers holding postgraduate degrees across all industries. Superannuation lost was estimated at $34,200. Counsel argued that applying the 10% factor to the total of the two figures provides a figure of $34,720[282]. Counsel submitted that interest of $10,120 would be payable on that amount.
3. As noted above, counsel for the second defendant took an approach which covered the entire period and argued for a figure of 20%, representing the chance of the second plaintiff having returned to gainful employment in the absence of the incident with the qualification that in the period up to February 2001, the chances were likely to have been less and noting that with each passing year it became more difficult to return to academia.

1. The conclusion I have reached as to Marcus Walker's probable approach in this period differs significantly from that advanced for the defendants. Counsel for the first defendant based his approach for both periods in part on the proposition that Marcus Walker's behaviour after Monash University indicated that he had little or no interest in gainful employment and that this attitude would have continued. I do not agree. There is some force, however, in the additional argument advanced for the first defendant in relation to the second period that there were likely to be difficulties in trying to return to the workforce after 14 years. But defence counsel did not make due allowance for the obvious pride and work ethic of the brothers and the fact that with the death of their mother there would be no justification for Donald Walker supporting Marcus Walker. It should also be remembered that by 2001, Marcus Walker had reached an age where making provision for his future would have become very important.
2. Accordingly, with the death of his mother, absent the incident, the probabilities are, in my view, that Marcus Walker would have sought employment. He would have been released from his commitment to his mother and the reasons for Donald Walker supporting him would have ceased.[283] He would have been free to seek full time employment. There may have been some initial difficulties in obtaining permanent employment assuming that he had not been engaged in any formal full-time employment up to 2001. Pursuit of an academic career would have probably required the re-establishment of his credentials or further tertiary training to some extent but that does not mean that he would not have been able to gain employment either in the academic world or in the secondary education world having regard to the excellence of his scientific degrees. Alternatively, he was someone who had been prepared to work manually and in menial tasks. His work history showed a flexible approach to seeking employment.
3. I consider it would be reasonable to apply a figure of 40% for that period to cover the possibilities that he may not have been able to obtain full time employment for the entire period and may have taken time to obtain full employment; in other words but for the incident and its consequences a reasonable estimate for employment during that period was 60%.
4. Taking the first defendant's calculations based on Mr Ivey's figures for the period 2002-2007 and his grossing of them up 100%, a total of $313,000 is arrived at for potential earnings. Taking the first defendant's calculations, an amount of $33,483 should be added for potential superannuation, giving a total of $346,483. Accepting that the opportunity for employment in that period was 60% and would have been taken up, the damages for lost earning capacity in that period would on that basis be $207,889.
5. There also needs to be built in a factor for vicissitudes during this period for which potential earnings have been calculated. A figure of 10% would be appropriate. This would reduce the above calculation to $187,101.00.
   • 20.7 FUTURE LOSS QUANTUM

1. In relation to the assessment of future loss, Mr Ivey identified his assumptions. Some were the same as those made in his earlier report and are, therefore, presumably accepted by Marcus Walker. They are the following:
   1. Expected retirement age in the absence of the incident - 65 years;
   2. The potential income assessed for the 2007 financial year is indicative of his potential income in future years;
   3. Loss of superannuation at 9% of taxable income should be calculated and included;
   4. A present value date of 1 July 2007 was adopted.
2. Consistently with the approach taken in assessing past loss, Mr Ivey assessed the plaintiff's expected 2007 income (the base for the calculation) by adjusting indexed gross income using three alternative discounts (10% 40% and 70%) for the effect of other factors that might be operating to reduce it. In addressing Marcus Walker's level of residual earning capacity, it being unknown, it was assessed at various residual earning capacities ranging from 15% to 40% of his potential income. A discount rate of 5% per annum was used in the projection of the future loss calculation. No allowance was made for vicissitudes. They were matters for the court to address.
3. His assessments of future loss of earnings can be summarised as follows:[284]

1. I note that in attachments to his second report Mr Ivey stated that in calculating future losses he had used his estimate of potential earnings as at 2007 of $96,437 per annum. He had used this in his earlier report and presumably that figure also is accepted by the plaintiff.
2. Applying his approach it becomes necessary to identify for calculation of future loss whether the earning capacity has been affected by other factors which continue and to also determine the level of residual earning capacity.

1. As to the claim for future economic loss, counsel for the first defendant submitted that assuming Marcus Walker
   • has established that he had an earning capacity which was impaired because of the incident; and
   • could and would have utilised earning capacity in the future,

it was even more unlikely that he would have returned to academia or any form of paid employment. Counsel drew on matters already canvassed. Counsel submitted that the present value of future economic loss, assuming a total loss of earning capacity and, but for the incident, 100% utilisation, was $621,500[286]. Counsel submitted that this was again generous to Marcus Walker because it was based on the average earnings of all workers holding a postgraduate degree across all industries and because it assumed total loss of earning capacity and that, in the future, he would have been certain to use it if not injured.. Applying a similar discount of 90%, a figure for the present value of Marcus Walker's future economic loss is arrived at of approximately $62,150.[287]

1. Counsel for the second defendant took Mr Ivey's figures of $284,189[288] as being the second plaintiff's approximate future loss if 90% of the loss was ascribed to the event. Counsel submitted, relying upon SB v NSW (2004) 13 BR 527[289], that having regard to the fact that Donald Walker had no employment history prior to becoming unfit to work, it was necessary for the Court to assess the degree of probability of obtaining gainful employment which cannot now occur and to assess the degree of probability as to events that might allegedly occur in the future, ignoring any speculative or fanciful events. Counsel placed the prospects of future income from the various business ventures in the latter category. As to the probability that Marcus Walker would have returned to gainful employment after 2007, counsel relied upon the same factors referred to above. Counsel also emphasised that Marcus Walker's time away from academia would have had a cumulative effect upon the difficulties facing him in seeking employment in that area. As a consequence, he argued that the probability of a second plaintiff returning to paid employment after 2007 in the absence of the events of August 1993 was no more than 10%.

1. The defence analysis assumed that, absent the events of August 1993, he would have continued from 2001 to 2007 in little or no employment, being supported by his brother even though there was nothing wrong with him and he no longer needed to care for their mother. It also puts a heavy emphasis on his past academic life and scientific research as the comparable option when the evidence would suggest that he was looking to go elsewhere and considering other career paths - e.g. law at Sydney. There were, of course, many options. One not canvassed with him (but discussed in submissions, and for which he would have been otherwise well qualified) was teaching.
2. Another possibility, if "the wheels had fallen off", as defence counsel were suggesting, was that he be a ski instructor, a qualification he acquired not long before the incident. That qualification provided him with a means of earning income in the winter months in Australia and in the northern hemisphere winter months. No doubt he would have needed to undergo refresher training.
3. Counsel, and Ivey, were also very dismissive of the work Marcus Walker did in pursuing the various business options. It is true they came to nothing, but it is also true that he applied himself with great industry, enthusiasm and attention to detail. In addition, organising the Dance Party was a major exercise which on the evidence went very well. With the benefit of hindsight, all that activity appears to have been a waste of time, but the various major projects had significant merit and he applied himself to them with all his abilities and considerable energy.
4. At times, counsel for the defendants sought to rely on post-incident behaviour which is not of assistance. Counsel also at times drew a false dichotomy between work which reveals an earning capacity and work which does not by basing the distinction on the sole criterion of whether the work produces income or not or whether it proved to be commercially viable. Marcus Walker plainly had shown over the years a capacity for hard persistent physical and detailed intellectual work for significant periods of time. Sometimes the work was routine to some extent -- seeking registration of names etc. On other occasions it was artistic -- design of materials and costumes for the Dance Party. At times it involved significant hands-on management of the complex process of organising a complex event, the Dance Party, and supervising its successful operation on the night that it occurred.
5. The fact that he spent so much time and so many years exploring it and other options after a very promising scientific career had been at least put on hold, does raise the question whether he was going through some sort of psychological crisis at the time. That would be a possibility. But there was no evidence to support that conclusion[290] and there were other more likely explanations. The most likely one is his attachment to his mother and desire to help her in her illness together with a questioning by him, common at his then time of life, as to the direction he wanted to follow for the rest of his life, and the exploration, as a result, of a variety of potential moneymaking projects. The fact that he was able to pursue those projects while caring for his mother without having to seek paid employment was due to his brother's generosity in supporting him while these projects were explored and while he cared for their mother. In doing that his brother was partly motivated by his own desire to be involved in the projects, particularly the Dance Party.
6. I am satisfied that at the time of the incident Marcus Walker's capacity to work had not been compromised seriously or at all. The precise nature of the work that he might have been able to undertake at the point or up to 2001 or beyond 2001 is another matter, bearing in mind (as already discussed) that as time went by his original field of scientific research had no doubt moved on and that he would not have found that easy to find employment in that precise area of work. That should not have been fatal, but may have affected the level at which he could return to employment and his options.

1. By 2007, the probabilities are that any impact of the earlier period in which Marcus Walker may have worked on projects and in which he cared for his mother, would have ceased to have an impact and he would have employment or be actively pursuing it. In addition, if he had in 2001, or shortly afterwards, set about to requalify himself, that would have been completed for some years prior to 2007. For the purpose of estimating future losses, it would be reasonable to apply no more than the 10% discount of Mr Ivey to his figures resulting in an expected after-tax income for the financial year 2007 of $69,564.00.[291]
2. The next question is whether Marcus Walker is likely to recover some of his earning capacity, notwithstanding the psychiatric damage he has suffered and from which he still suffers. The experts are not optimistic about his future.
3. While Dr Pargiter saw a return to employment as being a slight to non-existent possibility, nonetheless it was not rejected as a possibility. I note that he also said that whatever the outcome of the case, Dr Walker will still remain to a degree preoccupied by it to an extent that it will interfere with his employment prospects.
4. In my view it should not be concluded that he has no prospects in his remaining working years of obtaining paid employment. There are many unpredictables. But he has shown in the past a capacity for work and high intelligence and a preparedness to work in a variety of environments. There is a real chance, in my view, that a successful outcome to these proceedings on which he has focused for so many years, together with the vindication that would bring, could have a sufficient positive impact to enable him to pick up his life, at least partially, and resume some employment. Perhaps some part-time work might be the most he could manage. But damages should not be assessed on the basis that there is no possibility of him recovering some earning capacity with the finalisation of these proceedings. Mr Ivey's figures assume average male post-graduate earnings. His prospects of obtaining full-time employment at that level into the future are less likely than, say, part-time employment in other less well paid employment. Prior to the incident, his potential earning capacity was above average. In all the circumstances, a reasonable figure to use would be a residual earning capacity of 10% of average male post-graduate earnings. That would produce an annual after-tax figure of $9,934.00 and a base figure for estimating future economic loss of $59,630.00.[292]
5. Applying the annual discount factor (5%) and using Mr Ivey's multiplier of 8.32 to that figure results in a calculation of future loss of earnings of $496,121.60.
6. It is also necessary to take account of future vicissitudes of life and to that end to introduce a discount factor of 10%. Applying that percentage to the above figure produces an amount of $446,509.44.
   • 20.8 QUANTUM OF MARCUS WALKER'S DAMAGES FOR ECONOMIC LOSS
7. It is necessary to stand back and consider the various assessments and calculations that have been made. They are:

1. Considering the assessments arrived at individually and in combination, I am satisfied the they reflect fair and reasonable compensation.

1. I am satisfied that damages should be awarded to the plaintiffs in the following amounts.

(b) Damages for lost earning capacity - $883,413.00, comprising

(ii) damages for lost future earning capacity - $523,413.00

(b) Damages for lost earning capacity - $643,610.00 comprising,

(i) past loss - $219,101.00 ($32,000.00 + $187,101.00)

1. Considering the assessments of each head of damages in each of the claims and the combination of those assessments in each claim, I am of the view that they reflect fair and reasonable compensation and do not involving any doubling up of compensation.
2. Submissions were made in respect of the remaining issues:
   • Aggravated and exemplary damages
   • The application of s.123(1) Police Regulation Act
   • Damages in the form of interest.
3. As to the first two matters, the submissions made and discussions that followed in the course of the trial were essentially theoretical because they did not have the benefit of any findings as to what occurred. It seems to me necessary, to ensure a fair hearing, that those issues should not be determined at this stage. That course would also be desirable so that any decision that is made is made with the assistance of counsel. These issues should be the subject of further submissions by the parties once they have had an opportunity to consider the findings of fact that have been made about the events of 15 August 1993. As to the issue of interest, once the total figure for damages is established and its various parts identified, the parties too will be in a better position to consider the issue and make submissions.

BATTISTA V COOPER - DEFENCE CRITICISMS - BROOKING J'S COMMENTS IN FAGAN V CRIMES COMPENSATION TRIBUNAL

1. I make initially the general comment that Brooking J proceeded, in my view, on an un-stated premise that Bray CJ's statements of principle should be examined on the basis that they are intended to apply without further development or qualification to all cases of intentional torts and all kinds of damage.[293] In my view, however, Bray CJ was articulating a statement of principle to be applied in the case before him - a case of assault and battery. His decision would, and should, be considered in the context of its facts - that is in the common law tradition. His broad language and generalisation should be interpreted in that context. This case is a case in which Bray CJ's decision can be explored, applied and, if necessary, qualified or developed further. I refer to the following passages from Booking J's decision relied upon by defence counsel.
2. Brooking J embarked upon a very detailed analysis of, inter alia, the proposition that:

"Certainly the intended consequences of a tort can never be too remote. And if the intended consequences of a tort as to A produce unintended consequences as to B, the tortfeasor is liable to B for those consequences if B's connection with A is not too remote."

1. Defence counsel sought to rely in particular on the following comment of Brooking J that he did not think

"...that the principle that intended consequences are never too remote, ... whatever its limits may be, leads to the conclusion that if a tort is committed against one person and the intended consequences of that tort produce unintended injury to some other person who is connected with the victim by a connection not too remote, that other person may, on those bare facts maintain an action in tort against the wrongdoer."[294]

1. In my view, Bray CJ's proposition in the above passage needs to be read in context. His Honour was considering an assault and battery. He was not considering torts generally, or torts such as those referred to in examples relied upon by Brooking J - for example, defamation and claims for economic loss. He was in fact distinguishing between the initial intended and subsequent unintended consequences and ultimately required more, namely, foreseeability of consequences of the kind alleged.
2. His Honour also argued that Bray CJ had failed to distinguish between the tort that was intended and the consequences that were intended.[295] It is true that Bray CJ did not venture into the sort of extremely detailed analysis of these concepts that Brooking J attempted. I do not, however, read Bray CJ as having failed to bear that distinction in mind.
3. His Honour also took the position that to the extent that Bray CJ's conclusion may be

"thought to rest, not upon the proposition that the intended consequences of a tort can never be too remote and not upon decided cases concerning nervous shock caused by threats uttered or rumours spread by the defendant, but upon considerations of common sense and fairness as to what should be taken to be foreseeable, I do not regard it as well founded."[296]

1. In response, the point may be made that Bray CJ did have regard to matters in addition to commonsense and fairness. I consider he was, however, properly concerned that a commonsense approach be taken in an area that the courts had not previously considered.
2. Brooking J also commented on the following passage from Bray CJ's judgment

"Probably some element of foreseeability must still be present, but I think that an intentional tortfeasor, who must, ex hypothesi, be directing his mind to his act, ought to foresee the possibility of injury to a wider class of persons than those whom a court might find to have been within the reasonable foreseeability of the negligent driver of a car ".

"no justification for a rule of law which imputes to all intentional tortfeasors where death results a foresight of injurious emotional consequences to relations wider than that to be attributed to negligent tortfeasors."[297]

1. Brooking J again appears to assume that his Honour was stating a precise rule applicable to all intentional torts. In my view, Bray CJ was not stating a rule. He was, again in the context of assault and battery, raising an issue and expressing an opinion predicated on the fact that such an intentional tortfeasor is in a different position to the negligent tortfeasor and expressing the view that, in appropriate cases, that is likely to result in a wider class of compensable victims.
2. I note that, if Brooking J was suggesting that the limit that should be imposed was the same limit of foresight that would apply to negligent tortfeasors, and that were applied in this case, it would be satisfied.
3. Referring to the passage where Bray CJ distinguished between the intentional and negligent tortfeasors, Brooking J also stated that he agreed with the criticism by Professor Luntz[298] which he précised in the following terms

"that the distinction drawn in Battista v Cooper, between the murderer and negligent motorist is an artificial delimitation of the range of foreseeability."

Counsel for the defendants also sought to rely on this passage.

1. Referring to what Professor Luntz wrote, I note that, in the passage précised by his Honour, Professor Luntz said:

"With respect, if such a distinction is to be drawn, as well it might, it ought not to depend on artificial delimitations of the range of foreseeability.

"Probably neither the negligent driver nor the murderer has the victim's family in mind when performing the relevant act; both, if their minds were directed at the point, could reasonably foresee that nervous shock to the absent members of the victim's family is not unlikely a consequence of their act. The question for the court then becomes whether there is any reason of policy for denying a duty of care. Policy reasons such as those discussed in Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad" for limiting the range of liability for negligently inflicted financial loss may then lead to a restricted duty of care to avoid nervous shock in the case of the negligent driver but not in case of the murderer."

1. In my view, Professor Luntz was making a different point. He, in fact, appeared to be arguing for a similar outcome as that achieved by Bray CJ but one reached by a different approach.
2. It may, in any event, be said that Bray CJ, in his judgment, was not seeking to impose artificial delimitations between a murderer and a negligent driver. They were referred to, by way of example, to illustrate his argument that regard should be had to the knowledge in the mind of the person committing the tort of the circumstances including the nature of the act and of the likely effect of that act on the intended victim and postulating, inter alia, that a deliberate infliction of death is likely in most cases to affect a wider class of persons once they know about it than a negligent infliction of death. That is, to be blunt, the shock, horror and the sense of injustice flowing from a murder may be significantly greater and so, affect a wider class of people. But plainly much will depend on the circumstances of each case.
3. Counsel for the defendant also sought to rely on Brooking J's conclusion in which he repeated his position that[299]

"For the reasons which I have endeavoured to express, I am not persuaded of the validity of the distinction drawn in Battista v Cooper between intentional and negligent wrongdoing in relation to foresight of consequences."

"I do not accept the proposition that if the intended consequences of a tort as to A produce unintended consequences as to B, the tortfeasor is liable to B for the consequences if B's connection with A is not too remote, even if the proposition is intended to be confined to remoteness of damage."

1. Assuming that to be Bray CJ's statement of principle, Brooking J was indicating an unwillingness to develop the law in that direction. But Brooking J still appeared to be postulating that Bray CJ was referring to all intentional torts. In my view, he was not. Bray CJ's analysis must be read in the context of the case before him. In essence, his analysis applies to a case of assault and battery. It should be added that both judges, of course, were considering the issues that were raised in the context of the common law as it existed at the time of their judgments. The law has developed significantly since then.
2. I suggest that the comments of Brooking J relied upon by the defendants in fact reflect his concern about the generality of Bray CJ's statements. In addition, in a number of instances, I suggest that his Honour overstated Bray CJ's propositions before addressing them. It must be remembered that, on the facts of the case before him, Bray CJ did not have to address the sort of detailed issues that Brooking J raised. The connection between the victims and the deceased, the victim of the murder, was beyond argument and the likelihood of nervous shock and psychiatric damage to the children of the deceased was something plainly within the reasonable foresight of the intentional tortfeasor. Bray CJ did not engage in a detailed or hypothetical analysis of the principles to be applied because he did not need to do so. In identifying applicable principles, he decided no more than he had to decide. The ratio of the case is ultimately what matters. The further analysis and development of its elements is something to be dealt with in accordance with the common law tradition in the context of other cases - such as this case. The law has developed significantly since then.

1. The defendants advanced a number of arguments attacking the credibility of Donald Walker. In a number of instances, the argument turns on the significance of a failure to mention a matter to a doctor or other person, or on statements to a doctor or other persons alleged to be inconsistent with Donald Walker's evidence. These attacks faced difficulties identified by Dr Cole and Dr Krantz.
2. Dr Cole said that obtaining the history had been difficult. He said there was a variability in his presentation while he was with him and he had difficulty obtaining direct answers from simple questions. In his report he said the following:

"He was voluble, spoke rapidly and showed considerable pressure of ideas. He seemed preoccupied with his problems and kept digressing. He was obviously tense and at times became agitated. He produced documents in connection with his claim.

He was vague when it came to recalling dates and times and seemed to have difficulty pursuing any one line of thought for long before returning to his problems. As a result he proved to be a difficult historian and gave a rather disjointed account of himself and his problems.

These problems were caused by his psychiatric disabilities. With such problems, errors will inevitably emerge in the record of the history obtained from the interviewee."

1. In such circumstances, the interviewee will omit matters, have difficulty conveying precisely and clearly what he or she wishes to convey and the interviewer may make mistakes of perception and in recording those perceptions. I note that this should be borne in mind also in assessing his evidence. Dr Krantz referred to another phenomenon - a persons in shock omitting to mention symptoms because they do not realise the range of symptoms.
2. The line of argument advanced by the defendants assumes the absence of such difficulties. They have not generally been able to exclude these explanations. Other matters also need to be addressed. I turn to the issues raised.

ALLEGATION 1: DONALD WALKER LIED IN HIS EVIDENCE ABOUT THE TEA PARTY

1. This issue turns on the evidence given by Mr Crewdson, the psychologist, about obtaining a history from Donald Walker in which he said that Donald Walker referred to having held a tea party outside the Camberwell Police Station. The precise words recorded were:

"He gave accounts of driving past, waving from a stretch limo, and there is an account of a little tea party that was held outside the police station in the back of the stretch limo."

1. This was in the context of Mr Crewdson referring to a history between Donald Walker and the Camberwell Police Station over .05 charges and a win that he had resulting in him being acquitted.
2. Donald Walker adamantly denied in his evidence that a tea party had occurred and referred in his evidence to a bit of a rumour going around but there was no truth to it. He denied giving Mr Crewdson that account. He was adamant about it. In the course of his response he referred to an occasion where he was parked outside the police station in the passenger seat, his brother was driving. He went into court and Sergeant Smythe came up to him and said that he had seen him driving and had him charged with driving whilst unlicensed. At the hearing of that charge, the Magistrate relied upon the evidence of his brother and dismissed the matter. He said that that was the only time his car had ever been near the Camberwell Police Station. He accepted that he had never had any dealings with Mr Crewdson that suggested to him that he was less than honest, but he said there were times when he would doze or nod off. He said that Mr Crewdson may have misinterpreted what he said. In cross-examination he denied ever mentioning a tea party to him. I note that McRae, a friend, said that he was not aware of a suggestion of a tea party in a limousine outside the police station.
3. Donald Walker's denial was convincing. The question remains, however, as to how Mr Crewdson came to make the note. There was some evidence of Donald Walker having had exchanges with the police in relation to driving offences, and, as noted, Donald Walker spoke of a rumour about a tea party. It is highly likely that the abovementioned problem identified by Dr Cole applied and that Mr Crewdson misunderstood Donald Walker and erroneously noted the matter as a fact. Certainly, the defendants cannot exclude that explanation. In the end, my assessment of his response, rightly or wrongly, was that he was genuinely affronted by the accusations put and that he was not lying in his evidence about it.

ALLEGATION 2: DONALD WALKER LIED IN HIS EVIDENCE ABOUT BEING STRUCK WITH A BATON ON HIS HEAD AND NECK

1. Defence counsel referred to a statement in Mr Pritchard's report of 16 February 1994 that on 21 September 1993 Donald Walker told him he had been "struck four to six times around the base of the posterior skull and neck by baton blows while lying handcuffed and prone on the floor". Donald Walker had been referred to Mr Pritchard by Professor Chambers. Professor Chambers, in his report of 6 April 2004, had recorded that Donald Walker had told him on 7 September 2003 that "he was beaten repeatedly over the head and neck with batons". Dr Thomas reported that he was told on 17 August that he was "hit on the head with fists".
2. In cross-examination it was put to Donald Walker that his evidence-in-chief contained "no clear reference" to the Pritchard description. He replied that he thought it did. The cross-examination continued. In the course of it, Donald Walker said he had always said that he could not confirm that all the blows he suffered were baton blows because he was "face down". Further on during questioning, counsel again asked him if he had given information to Mr Pritchard that created the impression recorded by Mr Pritchard. He replied that he had, but he could not really tell if the blows were baton blows. The cross-examination then focused on whether Donald Walker's statement to Mr Pritchard about being struck in the head by batons was inconsistent with the true position that he could not see and therefore could not say it was batons. As to the detail in the report about this issue, he said he could not explain it. But he said he was suffering a lot of pain in the neck and probably assumed it came from batons. He said although he had assumed that he had been struck by batons in his neck, he could not say if it was batons, and that it could have been from the handle end of the baton.
3. So far as the evidence is concerned, therefore, Donald Walker in cross-examination essentially stated that he had been struck, by means he could not swear to, to the base of his skull and neck. Defence counsel submitted that these were significant inconsistencies between the accounts and that the explanation was that Donald Walker was lying. Counsel submitted that Donald Walker's claim that he was struck to the base of his skull and neck should be rejected.
4. Reliance is placed on the failure to mention such information to the police at any stage and also that it was not mentioned to Dr Cole in his visit in March 2007.
5. I attach no significance to the failure to mention blows to the head to the police. I accept that Donald Walker was anxious to leave the police station and it was understandable that he would not seek to raise such matters. He was not pressed by the police to identify all injuries.
6. It would appear that it was not mentioned to Dr Cole, but such omissions can happen and in his physical and psychiatric conditions, as explained by Dr Cole, he has had difficulty focusing and concentrating and it may well have been simply overlooked. Dr Cole's point also applied in relation to the alleged inconsistency between Donald Walker's evidence and the records of Mr Pritchard, Dr Thomas and Professor Chambers. Defence counsel cannot exclude those explanations.
7. There remains the issue of whether he was hit on the head and neck or not.
8. The defendants point to the lack of objective evidence, such as the observation of bruising or swelling to the head or neck of Donald Walker by people such as Dr Thomas, to whom the allegation was made on 17 August 1993, as well as Mr Pritchard and Professor Chambers.
9. Bearing in mind that Mr Prichard did not see Donald Walker until 21 September 1993 and Professor Chambers first saw him on 7 September 1993, their failure to observe any objective, external signs of injuries, such as bruising to the neck or head, is hardly surprising. Counsel also relied upon the fact that when Dr Spencer saw Donald Walker on 19 and 24 August 1993 he did not make a note and did not recall any visible injuries to the base of the skull or neck. It should be noted, however, that it was Dr Thomas, apparently, who was addressing issues of neurological damage.
10. Defence counsel conceded that Dr Thomas, in detailing various bruises and abrasions, referred to a clinical finding on 30 August 1993 of tenderness over the back of the neck, but argued that there was no evidence to suggest that this was more than a patient-reported finding and that it therefore did not offer corroboration of Donald Walker's description of the assault. But the finding was described in Dr Thomas's report as a clinical finding and it should also be noted that when first seen by Dr Thomas, Donald Walker was complaining of headache, dizziness, blurred vision and of his speech and walking being adversely affected - all consistent with blows to the head region. His condition should be compared with that of Carter and Sesin. Moreover, Dr Thomas was sufficiently concerned to advise that a CT head scan be conducted -- and it was.
11. Reliance was also placed on the fact that Marcus Walker had attempted to take photographs to record the injured areas, but took none of the neck or base of the skull, apart from incidentally in photograph 13, and did not recall the plaintiff mentioning to him that he had received any blows to the base of the skull. He attempted to explain this on the basis of the shock of this experience at the time. Counsel submitted that this explanation was inconsistent with the level of detail recorded in other photos and was inconsistent with the advice given by Dr Thomas on 17 August 1993 to photograph the injuries. The argument, however, depends upon finding that Donald and Marcus Walker were functioning reasonably well at the time. I am satisfied they were not. Due allowance must also be made for the state of shock they were in. As to photographs of the particular area, the photos taken suggest that the areas in question were covered by Donald Walker's hair. There would, therefore, have been little point in attempting to photograph the area.
12. The inconsistencies relate to detail, particularly as to the nature of the blows struck. The defendants, however, are not able to point to inconsistencies in the critical essence of Donald Walker's allegation that he was struck on the head more than once. They also face the difficulty that the essence of the allegation is supported by the clear evidence that:
    • Carter struck Sesin at least once on each arm,[300]
    • Sesin's evidence that when his left arm was struck it was around Donald Walker's neck, and
    • the probability that Sesin used his other arm to complete the headlock and that both arms were engaged in the headlock when Carter struck.
13. Further, Carter had no desire or reason to hit Sesin, but was trying very hard to hit Donald Walker. A strong inference arises, and should be drawn, that when Carter struck Sesin, he was trying to hit Walker about the head and he hit both Sesin and Donald Walker. Alternatively, bearing in mind Carter's vigour and determination in striking Donald Walker with his baton, the strong probabilities are that, if he missed Donald Walker's head but struck Sesin, he would have tried again and succeeded.
14. I am, on all evidence,[301] satisfied that Carter did strike Donald Walker on his head and, in particular, in the base of his skull and upper neck area. It should be noted, however, that the significance of this issue for the plaintiff's case in relation to the neck injuries depends upon whether that case is entirely dependent upon a finding that he was so struck. The defendants' cases, on the concert and headlock issues, were directed to achieving that result. They have not succeeded in that attempt. Carter and Sesin were acting in concert, and the headlock, and the wrestling that occurred while it was in place, could not be justified and they too contributed to the neck injuries**.**

ALLEGATION 3: DONALD WALKER LIED IN HIS EVIDENCE ABOUT LOSING CONSCIOUSNESS FOR 45 MINUTES

1. Donald Walker's evidence was that he went in and out of consciousness and that he and his brother worked out that, cumulatively, the period of unconsciousness would have been 45 minutes. He said it started during the beating and prior to the handcuffing.
2. Defence counsel argued that this evidence was inconsistent with what Donald Walker had said to the various medical experts, and argued that there were significant differences between his statements to those experts. It was put that he was therefore lying in his evidence to the medical experts and that his evidence of altered consciousness should be rejected.
3. Counsel for the second defendant referred to alleged inconsistencies between the record of statements that he did not lose consciousness,[302] that he did lose consciousness[303] and that he went "in and out of consciousness[304]. According to Mr Crewdson, he said he had lost consciousness and had had a twenty minute period of amnesia.
4. Counsel for the first defendant submitted, in particular, that Donald Walker's reported statement to Mr Pritchard on 16 February 1994 that he had estimated a loss of consciousness for 45 minutes was a lie. That record, however, is not inconsistent with his evidence. It is incomplete. Reliance is also placed on the fact, however, that on his initial visit to Mr Pritchard on 21 September 1993 he was not reported as referring to a loss of consciousness. Reliance is also placed on the fact that he, according to Dr Cole, did not mention, during his March 2007 consultations, losing consciousness for 45 minutes. But what he did say was that he went in and out of consciousness for some time. That too was an incomplete rather than an inaccurate record. Counsel for the defence also noted that in his 7 September 1993 report, Professor Chambers stated that there was "no loss of consciousness or amnesia".[305] Donald Walker said he had interpreted the question as relating to complete unconsciousness. Counsel referred to his evidence where he had said that at no stage was he completely unconscious and that he was in and out of consciousness. Counsel argued that his evidence and explanation lacked credibility and should be rejected.
5. I take a different view. I consider that his evidence on those matters was convincing. In essence it was that he had not lost consciousness as such and when asked if he had lost consciousness he said he had not. He said that looking back over the events of that night, he realised there were points of time for which he had no memory, particularly after he was handcuffed. He inferred from that that he had passed in and out of consciousness on those occasions. In combination, he had estimated that those periods would have totalled approximately 45 minutes.
6. If the reports of the medical witnesses are accurate, and the language they used was used in the same way on each occasion, and the reports are interpreted strictly and literally, it may be argued there were inconsistencies in the statements made by Donald Walker to them. But the discrepancies are of the very kind that were likely to occur, bearing in mind Dr Cole's description of trying to obtain a history from Donald Walker. The consistent thread in his sworn evidence, however, is that he didn't simply black out, but there was an interference with his consciousness towards the end of the incident and for a time afterwards. Both Marcus Walker and Dr Thomas gave evidence of his speech being affected in the early stages. Medical evidence as to those early periods generally contains references to symptoms and the like, consistent with blows to the head and a possible loss of consciousness, if only spasmodic.
7. We all have problems communicating with each other. In this case there was the even greater problem of communication identified by Dr Cole. We do not know the precise questions asked by the medical experts including Mr Pritchard, or Professor Chambers. It has not been shown that Donald Walker lied in his evidence or that he lied in his statements to the doctors. At worst, Donald Walker or the medical witnesses record was imprecise or incomplete.
8. Counsel for the second defendant also sought to rely upon the proposition that it had not been put to officers such as Shenton, Howlett, Radford, Rogers or Pluim that the plaintiff appeared to be unconscious or suffering from altered consciousness, the point being that if there were periods when he was unconscious, that would have occurred in their presence in all probability. In my view, however, they were defence witnesses and it was for defence counsel to question their witnesses about these matters. In any event, I have expressed my views about the lack of credibility of Radford, Rodgers and Pluim.[306] Shenton and Howlett had little to do with Donald Walker, so that anything they might have said would carry little weight. Carter was asked about his observations of Donald Walker and said that he did not see him lapsing in and out of consciousness and did not observe any variation in his state of alertness. This may well be true; for he showed no interest in the welfare of Donald Walker after the incident. In any event, for reasons given elsewhere, I do not regard Carter as a credible witness.
9. The defendants have not demonstrated the alleged lie. Donald Walker's evidence should be accepted that he went in and out of consciousness towards the end of the beating and prior to the handcuffing (and after the event) and the accumulated periods of unconsciousness totalled approximately 45 minutes. This proposition, however, has ramifications, however, for the reliability of his evidence of what occurred during that period.

1. Counsel for the first defendant referred to "a sometime allegation of amnesia". It is not clear to me where it is said such an allegation was made.
2. Counsel referred to Dr Cole's evidence in cross-examination when he was asked if Donald Walker mentioned amnesia. Dr Cole replied in the terms of his report, that Donald Walker reported that about the time his mother was injured and while he was being beaten, he was a little vague.
3. According to Dr Cole, Donald Walker told him that he had a "memory lapse of 25 minutes". Dr Cole did not himself describe this as amnesia. At the same time Professor Chambers, in his report of 16 April 2004, reported "no amnesia". Counsel for the defence also referred to Mr Crewdson's opinion of 28 May 2004 which referred to 20 minutes of no memory. Counsel submitted that his counsel in his opening was silent about it, as was Donald Walker in his evidence-in-chief. Counsel argued that this was another example of Donald Walker exaggerating his symptoms to the experts and that an allegation of "amnesia" was a recent invention.
4. In my view there is no inconsistency. The use of language by counsel was inaccurate. Donald Walker has maintained that he went in and out of consciousness, not that he had forgotten what he observed. Donald Walker did not plead amnesia. He did not allege amnesia. Amnesia is the loss of a memory. Consistently, Donald Walker spoke of periods of unconsciousness where there would have been no opportunity to observe and obtain a memory. There were blanks in his memory of the event for that reason, not because he observed them and they were driven out of his memory.

ALLEGATION 5: DONALD WALKER EXAGGERATED SYMPTOMS

1. Counsel for the defence argued that Donald Walker had exaggerated his symptoms in his evidence and to the doctors. For example, it was argued that there was an inconsistency between his assertions about being very badly injured, severely beaten and in an extreme state of shock when he also agreed that he did not go to a doctor or hospital on the Sunday or the Monday. Counsel also pointed to the absence of any evidence that he wanted to do so or that anyone even suggested that he do so.
2. Counsel for the plaintiffs submitted that the photographs, the lay evidence and the medical evidence confirm each of the matters identified by Donald Walker. He himself described himself as in a state of extreme shock. As to his delay in seeking treatment, one can well understand that he initially wanted to see no-one while he recovered his equilibrium after what had happened. Donald Walker's evidence was supported by other lay evidence, the photograph and the medical evidence. Dr Cole, the defence psychiatrist, formed the judgment that he was being truthful.
3. I do not accept that Donald Walker has exaggerated his symptoms.

ALLEGATION 6: DONALD WALKER LIED ABOUT HIS VOCATIONAL PERFORMANCE BEING ADVERSELY AFFECTED AS A RESULT OF THE INCIDENT

1. Donald Walker claims that his vocational performance was adversely affected as a result of the incident. Counsel for the defence referred to his actual vocational performance and argued that it was not adversely affected.
2. The vocational performance issue is discussed in detail in the context of the damages claim. There is a substantial body of lay evidence, in particular, about the enormous difficulty that Donald Walker has had since the incident in carrying on his previous work. While the defence has advanced expert testimony to challenge whether there has in fact been any loss of income and, therefore, whether there has been any loss of earning capacity, such evidence is open to serious criticism. The fact is that there is substantial lay evidence which supports his evidence about his difficulties and that, in turn, is supported by the experts as to his health, both physical and mental.
3. Counsel for the defence also raised more specific allegations to which I now turn - allegations relied upon to attack his credibility.

1. Reliance was placed on a statement in the 28 May 2005 report of Mr Crewdson that Donald Walker had said that "all he had access to was trailer commissions". Counsel submitted that the financial records showed otherwise and that Donald Walker had lied to Mr Crewdson.
2. Donald Walker was cross-examined about this statement. Initially, he suggested he could have been surviving on trailer commissions in the preceding four months. He said there were times when he had to rely on trailer commission to survive. He said that was probably the explanation.
3. Counsel for the second defendant argued that the "false claim" that his only income was from trailer commissions was cemented in later evidence when he said that "at that stage in 2005" he had exhausted his opportunities to churn his policy holders and there were "complete periods when he could not sell a policy". As I understand the submission of counsel for the second defendant, it is argued that he thereby affirmed that his only income in the four month period was from trailer commissions.
4. Counsel submitted that eventually in answer to questions from the Court, he admitted that his statement to Mr Crewdson about having to survive on trailer commissions was not accurate. What Donald Walker said was that, on the material counsel had shown him, it was incorrect to say that all he had access to, in the four month period to May 2005, was, in fact, trailer commissions. Asked what he had in fact told Mr Crewdson he said he thought he had told him that he had to rely on trailer commissions coming through to "keep afloat". It must also be borne in mind that he did not, when speaking to Mr Crewdson, have the figures relied upon by counsel.
5. As I read the transcript, Donald Walker offered an explanation and suggested that that was probably what he was referring to in his statement to Mr Crewdson.
6. Interpreting Mr Crewdson's report literally, the proposition attributed to Donald Walker was incorrect. But this is another situation where the problem identified by Dr Cole cannot be excluded. If he did express himself as is alleged, and there was exaggeration, what he stated was an impression that probably reflected the level of his depression and pessimism rather than deliberate exaggeration. The fact was he had been struggling to maintain his business for the previous 12 years, and was still struggling. The argument made does not , on its own, or with other evidence support the conclusion that Donald Walker lied to Mr Crewdson or that he should be held to be a dishonest witness.

1. Defence counsel advanced a specific criticism of the credibility of Donald Walker, again on the basis of the record of Michael Crewdson of his conversations with him in May 2005. Mr Crewdson's report referred to Donald Walker having expressed the view to him that his business was in a downward decline. He was referred to Mr Crewdson's statement that instead of the normal expansion of clients base there had been an attrition over the past 11 years with a diminution of income.
2. Counsel for the first defendant submitted that, by referring to an inevitable attrition over the past 11 years when speaking to Mr Crewdson, Donald Walker had been intending to create the impression of a steady decline, an 11 year trend. That was not my reading of his evidence.
3. Counsel for the second defendant referred to the evidence given by Donald Walker that he believed that in 2005 he had gone through his client base for the purpose of churning and that there were "complete periods" (between 1993 and 2005) when he couldn't sell one policy at all. This was challenged. Counsel also referred to the analysis of remuneration statements from PIS, which recorded a total of 20 new policies during the four month period prior to Mr Crewdson's report, with commissions totalling $46,636.00 net, with five weeks when no new commissions were recorded.
4. Counsel submitted both these claims were made in the context of the period of time leading up to the first plaintiff seeing Mr Crewdson in May 2005 and were demonstrably false in light of the new policies written and commission received by Donald Walker in the four months leading up to the report.

1. Mr Crewdson was asked as to how he would explain the fact that the financial evidence suggests that the business is still functioning and is at times generating very good returns. He referred to a number of matters that Donald Walker had mentioned, including that he had sold off a very large part of his business, and that he had engaged others to work for him. He was also aware that Donald Walker worked at his insurance work in fits and starts. He said the general impression that he had gained from Donald Walker was that things had gone steadily down, even though on occasions there was a burst of income. He said the job appeared to be one where it was up to you what you did and what you did yourself and through others. He also referred to a concern Donald Walker had had a few years before about the possibility of a malpractice suit, because of his continued use of opiates and whether that required some duty of disclosure towards his insurance indemnifier. He thought at the time that he did not handle his work well, particularly the detail, and that his client skills had deteriorated markedly because he had become short tempered and found it difficult to close a sale. If something went wrong he had a lot of difficulty handling any rejection.
2. Mr Crewdson said that what had occurred was consistent with Donald Walker's personality in that he was at least able to maintain the business activity to some extent. He said he thought Donald Walker was someone who pushes through at times. He said that if his level of income had been steadily rising or rising in some sort of meteoric way he would find it markedly inconsistent unless there was some other explanation for it.

1. Donald Walker was further cross-examined about the matters that Mr Crewdson had recorded as having been said by Donald Walker to him. Donald Walker responded that he was going through very hard times in 2005. He said that there were times when for several months he did not do any business and was surviving on trailer commissions. He said that "there had been periods all throughout" when he had not been able to do business. He said that "in the last month" he had not been able to do any work and had written only one new policy.
2. I note that Donald Walker said that words like "attrition" and "diminution" were not words he would have used. He also said that he did not have access to figures at the time when he was talking to Mr Crewdson. As to the issues, he said that in his mind he was not getting new business that he would have, and was, just taking one client to another company. Notwithstanding the results in terms of gross commission, he maintained that things were going steadily down. He acknowledged that the income was not on a steady downward line, but he maintained that he should have been earning more and had trouble keeping the business going through temporary staff. He maintained that he was under enormous stress all the time and felt things were not going well at all.
3. He referred to periods when he did not have any staff to assist him. I note that he was asked about 2005[307] and agreed that his subjective impression was that things were going steadily down hill in 2005. He attempted to make the point that this was mainly in relation to his client base, but was cut short. Counsel continued to cross-examine him and he conceded that on the figures produced, both in respect of the period immediately before his interview with Mr Crewdson and shown in charts generally, he was keeping his head above water at that stage income wise. He declined invitations to resile from his proposition that he was merely keeping his head above water.
4. In re-examination, Donald Walker was taken through records of policies and commissions from 12 August 2004 to 30 June 2005, identifying those which related to new clients and those which were changes of policy for existing clients. On the basis of that evidence the ratio of churned policies and new policies was approximately two to one and there was a decline in the number of churned policies over the four months prior to the Crewdson report. Further, in the two months prior to the Crewdson report there were four weeks when no new or churned policies were issued. His counsel noted that there were 13 dry weeks in the course of the 52 week period. These patterns are consistent with the opportunities for churning drying up - as Donald Walker alleged.

1. To the extent that the arguments of defence counsel are based on the premise that all Donald Walker's comments were related solely to the four months before the Crewdson report, that was not so. They were made in part in the context of cross-examination about his income history from 1993 to 2005.
2. In assessing the submissions, it must be born in mind that Donald Walker was attempting to convey to Mr Crewdson his perception of the situation and Mr Crewdson was trying to do his best to record those statements. He was also at the time heavily medicated. Regard must also be had to the problem identified by Dr Cole.
3. The allegations that the attrition of the business was exaggerated to Mr Crewdson requires examination of what did in fact happen to his business and is discussed above and in the main text in that context. In my view, there was a genuine factual basis that supported Donald Walker's perceptions and statements about the deterioration of his business, notwithstanding some years of substantial commissions.
4. At the time he spoke to Mr Crewdson, Donald Walker did not have all the figures that counsel used. Looked at overall, the substance of the situation was in accord with the substance of what Mr Crewdson recorded him as saying: namely, there had been an overall attrition of Donald Walker's business in the previous 11 years. I note the following:
   • He had not been able to expand the business and the files have in fact gradually and significantly reduced over the years from three filing cabinets in 1993 to three quarters of one filing cabinet at the time he gave evidence;
   • He had had to engage others to assist;
   • He had had to take advantage of the opportunities to churn policies and to his mind that solution was temporary and limited. In the four month period prior to the Crewdson report there was evidence that a significant number of commissions were the result of churning;
   • At the time of the Crewdson report he could well have gone through his client base in churning exercises which meant he could not transfer them to other companies at all and by heavily using that particular method of trying to keep his head above water his business was in gradual decline;
   • He was the business. He had been unable to apply himself to the same extent, and his mental and physical powers have been significantly reduced and his temperament had been adversely affected. His health generally had worsened and he was on Kapanol;
   • His physical and psychological state had deprived him of potentially lucrative opportunities which he would otherwise have had.
5. One can well understand Donald Walker having a view that his business had been on a downhill trend even though at different times he had been able by various methods to increase significantly the overall commissions received. What was recorded was a reasonably accurate statement in fact and a reasonably accurate statement of what Donald Walker genuinely believed.
6. The issues of the effect on the business are discussed further in considering the arguments advanced on the claim for damages for lost earning capacity.

ALLEGATION 7: THERE WAS INCONSISTENCY BETWEEN DONALD WALKER'S ANSWERS TO THE CORNELL QUESTIONNAIRE AND HIS COMPLAINTS

1. Counsel for the defendants also argued that Donald Walker's answers to the Cornell questionnaire, administered by Mr Crewdson, give an accurate insight into his then condition and demonstrate that he had exaggerated his evidence about his condition.
2. In a number of instances answers were given to questions which, as counsel argued, were inconsistent with his evidence and his case generally.
3. In some cases, the explanation lies in the qualifications in the questions whether it be references to time, frequency or severity.[308] Otherwise, the explanation was given by Mr Crewdson, who was best placed to comment on this issue. He referred by way of example to the question "Do you often feel miserable and blue?". He expressed the opinion that Donald Walker did often feel miserable and blue. It was put to him that the negative answer to the question by Donald Walker was a dishonest answer. He said it was obviously a contradiction, but he said that Donald Walker's presentation of himself was one thing, and that when one probes, one sees other issues and responses. On a prima facie basis it was a contradiction. As to whether it was dishonest, he said he did not believe it was, and made the point that, bearing in mind litigation was pending, it was in his interest to tick yes to pretty well everything, rather than no. He said he did not think it dishonest, but said that it said something about the complexities and difficulties of dealing with Donald Walker. Mr Crewdson also said that Donald Walker used to pull the questions "to bits" and it was very difficult to get his co-operation.[309] He also tended to see himself in "better light" and in greater control than Mr Crewdson observed of him.
4. Thus Mr Crewdson did not see the responses of Donald Walker as reflecting on his honesty, but rather as reflecting on the complexity of his condition. That in my view is a sound analysis. The responses to such a test can, in fact, be of little value - and that was the case here.
5. It should also be noted, of course, that filling out a questionnaire for a psychologist or psychiatrist is one thing; giving sworn evidence in court is another, and I am satisfied that Donald Walker was conscientious and serious about his responsibilities in court. In the end, I have come to the conclusion on the basis of all the evidence, including that of lay witnesses as well as experts, that the major psychopathological problems identified from their evidence, and the significant changes in his behaviour and life did occur and do exist and existed at the time of the questionnaire.

ALLEGATION 8: DONALD WALKER LIED ABOUT NOT RESISTING SESIN IN A HEADLOCK AND THAT HE DID NOT PUNCH SESIN AT ALL

1. Viewed in context, it cannot be demonstrated that his evidence that he did not resist Sesin is a lie. He was talking about the initial stages of the headlock and he went on to say that what he did was speak to Sesin saying what it was he was wanting to do - go to help his mother. His assertion is consistent with his evidence, in cross-examination, that it was only subsequently that he started to use any form of physical force to try to free himself from the headlock.
2. As to the second matter, the allegation of a lie in denying striking Constable Sesin in the face with a clenched fist, Donald Walker said "That's completely untrue, it's a complete lie. I did not punch Constable Sesin at any stage." The contrary evidence is that of Carter and Sesin.
3. Sesin described punching generally and a punch in the course of the wrestle at some stage after the headlock had been put in place. Further, when pressed to enlarge on that aspect, he ended up describing something that seemed more like an accidental blow in the course of Walker "thrashing about like a rabbit". Sergeant Pluim asked Sesin at the scene if he had "a busted nose or just bruising". He replied "no, just blood. A bit of a laceration on the side of the lip". He made no mention of a punch. The hospital record does refer to a complaint by Sesin of a punch to the face and records "blood on the nose". There was no reference, however, to bruising or abrasions to the head or face. The major concerns appear to have been injuries to the arms. This is understandable, they were caused by deliberate blows with a baton.
4. Carter described Donald Walker opening proceedings by punching Sesin and later qualified that. These matters are explored further in the main reasons when dealing with the central incident.
5. The defendants' attack on Donald Walker's credibility depends on accepting the evidence of Carter and Sesin.
6. For reasons discussed elsewhere, both lack credibility in these matters. Their evidence does not establish that a deliberate punch was thrown by Donald Walker. The alleged lie by Donald Walker is not demonstrated. I accept, however, that some bleeding was caused to Sesin's nose as Donald Walker thrashed about "like a rabbit".

ALLEGATION 9: DONALD WALKER LIED WHEN HE DENIED A VISIT BY MRS GOUGH TO HIS HOME ON THE NIGHT IN QUESTION

1. The defence referred to Mrs Gough's evidence that around 9.00 pm on 14 August 1993 she rang Donald Walker and asked to speak to Ruth Hamm and he said she had left. She then gave evidence that later on that evening she went to his home and talked to a male. The defendant put that that could only have been Donald Walker and he had said that Ruth Hamm was not there. Her evidence was that she heard a female voice faintly, but no words and no shouting. She also gave evidence that she rang the police around midnight on the night and reported that she believed Ruth Hamm was being held against her will.
2. Asked about the alleged visit from Mrs Gough, Donald Walker denied that it had happened and did so emphatically and on several occasions. For the defence it was put that Mrs Gough was plainly a witness of truth and Donald Walker was lying in his denial of her evidence.
3. There does not appear to be any suggestion that Mrs Gough would have had any motive to lie about her visit. Counsel for the plaintiffs, however, identified a number of inconsistencies between her recollection and that of the witness Jack Khalife,[310] a person who had been involved with her actions on that night and was a friend of both Mrs Gough and Ms Hamm from about 1991. He was proprietor of a milk bar in Riversdale Road Camberwell. He did not give oral evidence but his statement was admitted into evidence. He was apparently very ill. In his statement he recorded a number of things, including, if it was accepted, arguably erratic behaviour by Ms Hamm in making several phone calls to him. The first was about 6.00 pm. She rang to say that she was at home. It is clear that she was not. She rang again 10 to 15 minutes later. He said the call was plainly from Essex Road and he thought he heard someone who he believed was Donald Walker inviting him to come and have a drink. According to his statement, some period of time elapsed and he received a third call from Ms Hamm in which she asked him to call the police. She "sounded a little bit scared" over the phone, he said, but it was "certainly not enough to worry" him. He told her that if she could ring him she could ring the police.[311] I note that it appears that according to Donald Walker they had a disagreement about some explicit photographs of a couple at about 8.30 to 8.45pm.
4. Khalife stated that he then had a telephone conversation with Mrs Gough as a result of which she came to his premises and they discussed "this matter**".** Khalife stated that he was not sure, but he thought Ms Hamm rang him again between his call to Mrs Gough and Mrs Gough's arrival. She again asked him to contact the police, gave no details but this time sounded as if she was trying to make the call secretly. According to Khalife's statement, however, Mrs Gough didn't come to his home initially until after 9.30 pm, he having locked the shop. He usually did that after 9.30pm.
5. I note that Mrs Gough's evidence was that she received a call from Khalife at about 6.30 in which he said that Ms Hamm had rung him and said she couldn't leave the house. Mrs Gough said that she got to Khalife's shop some 15 to 20 minutes after the call and that they then had a long discussion.
6. Having discussed the telephone calls, then departed to go to Essex Road. According to her evidence, she returned to Khalife's shop afterwards, and they had a long discussion. He, however, did not record her returning to him that night. Counsel for the Plaintiffs submitted that if Mrs Gough had returned to Mr Khalife after her visit to Essex Road and had conveyed the details of her story to him, his failure to include them in his statement would be very difficult to explain. It should be noted that defence counsel, putting the anticipated evidence of Mrs Gough to Donald Walker, said that she could only say that she arrived at Essex Road after dark. In her evidence, however, she went beyond those instructions and said that she had arrived at Essex Road between 9.15 and 9.30 pm. On Khalife's account she could not have done so. She also gave other evidence which had not been put to Donald Walker, including an assertion that she asked to go inside at Essex Road to talk to Ruth Hamm and that she had heard a female voice.
7. Counsel for the plaintiffs also submitted that in addition to the significant differences between the Khalife statement, the evidence of Mrs Gough and the matters that had been put to Donald Walker in anticipation of her evidence, there was a further consideration. Counsel conceded that her evidence should be accepted as to what she had learnt from Khalife about telephone calls between him and Ruth Hamm and also that it was she who contacted the Camberwell Police. But counsel submitted that on her evidence, she showed such a commitment to the welfare of Ms Hamm that one would have expected her to do more at the premises, such as call out to make sure that she was alright.[312] Another matter noted by counsel although not in my view significant having regard to the passage of time, was the inaccuracy of her description of the house.
8. For the defence argument to succeed, it is necessary that I accept the evidence of Mrs Gough. A number of issues have been raised casting serious doubt on the reliability of her account. Those problems cannot be resolved without the testing of the evidence of Khalife and the evidence of Ms Hamm. The defendants cannot be, and are not, criticised for not calling Mr Khalife. The failure to call Ms Hamm, however, has not been explained and the principle in Jones v Dunkel should apply and be taken into account on this issue.[313]
9. It is for the defendants to prove that Donald Walker has lied about Mrs Gough's visits. In all the circumstances, the defendants have not satisfied me that Donald Walker's evidence that he was not visited by Mrs Gough is false.

ALLEGATION 10: DONALD WALKER FALSELY ALLEGED THAT THE POLICE HAD PRE-ASSEMBLED OUTSIDE HIS HOUSE

1. Attention is drawn to Donald Walker's refusal to believe that there was any call to D24. Counsel submitted that there was no evidence upon which Donald Walker could believe that the police had pre-assembled outside his house.
2. As counsel for the plaintiffs has pointed out, Donald Walker gave evidence that Ruth Hamm had said during the 1996 court case that, after she had retrieved her bag and had gone outside, that "they were out there" - the backup had already arrived. As I understand it, that statement partly fuelled the conspiracy theory and, in part, lies behind the refusal to believe there was any call for D24. There are also other issues raised about the evidence about the D24 call which mean that the issue is not clear-cut and there is room for a difference of opinion. Bearing in mind the almost instantaneous arrival of large numbers of police reinforcements, it is not surprising that Donald Walker would come to the belief that they "pre-assembled". In the end, the defendants have not demonstrated that allegations of a conspiracy and pre-assembly have no rational basis for Donald Walker or, that a belief in them is not honestly held.

ALLEGATION 11: DONALD WALKER LIED IN HIS EVIDENCE THAT HE WAS HANDCUFFED AS AND AFTER POLICE REINFORCEMENT ARRIVED

1. The argument proceeds on a false assumption that Donald Walker gave instructions to his counsel that he was handcuffed by Carter and Sesin before police reinforcements arrived. Counsel for the first defendant relied on the evidence of Donald Walker that he was handcuffed after police arrived.
2. It is true that Donald Walker's counsel raised the issue and sought to argue it on the basis of inferences to be drawn from other evidence depending on what is accepted and what is not. Counsel's argument is not put on the basis that his instructions from Donald Walker are that that was in fact what happened.
3. In my view Donald Walker's evidence should be accepted that police started arriving just before Carter and Sesin handcuffed him and were present when that occurred. I am satisfied there was no stand-off prior to the handcuffing.

ALLEGATION 12: DONALD WALKER FALSELY ALLEGED THAT HIS SHIRT WAS RIPPED WHEN SESIN GRABBED HIM

1. Donald Walker gave evidence that as Ms Hamm was leaving she accidentally bumped Marcia Walker. He was concerned that she might fall and he attempted to go to her aid but was stopped by Sesin who grabbed his shirt, ripping it.
2. Defence counsel submitted that this was a false allegation. Counsel submitted that it was in marked contrast to the opening of counsel for the plaintiff who stated that the ripping occurred shortly after the police entered the apartment and at the time Mr Carter put Mr Walker up against the wall. There was no mention in counsel's opening of Ms Hamm accidentally bumping Marcia Walker or Sesin grabbing his shirt. It was submitted that it followed that false instructions were given to counsel for the plaintiffs and the evidence given on oath should be rejected.
3. As to the opening issue, counsel informed the Court that he opened according to his belief and that he did not open from notes. Counsel also informed the Court that Donald Walker disputed his belief as to his instructions.[314]
4. Counsel for the first defendant also submitted that the shirt ripping incident was not mentioned in the record of interview. As to that, one could well imagine the police not asking about it. In addition, Donald Walker being concerned to end his ordeal, would not have wanted to make a complaint. What counsel did not address is the question of why the police ignored the issue.
5. Counsel also submitted that the shirt had not been produced nor had there been any photo of it and there was no corroboration that it was in fact ripped. Counsel for the first defendant subsequently acknowledged that he had not cross-examined on that issue.
6. The police officers who arrived later generally were aware that Donald Walker was not then wearing a shirt. Carter and Sesin, however, were unable to say anything about the presence or absence of Donald Walker's shirt before or after the time he was arrested. I find this remarkable and take the view that a strong inference arises that they wanted to avoid any questioning on that issue.
7. It may also be said that, accepting that the shirt was torn, it is improbable that the shirt was damaged in the original encounter between Carter and Donald Walker because it would not have been in the exchange that was described. There was no evidence of any holding on to the shirt or of any sharp objects that might had led to the shirt being damaged in that exchange. On the other hand if Sesin tried to restrain Donald Walker from rushing forward to assist his mother, there would have been every chance that the shirt would have been grabbed and that the shirt would be ripped. Again, the defendants are not helped by their unexplained failure to call Ms Hamm. It is likely that she observed or heard events as she was leaving.

ALLEGATION 13: DONALD WALKER LIED TO DONALDSON ABOUT HIS INSURANCE PROPOSALS

1. Two issues were raised. The first concerns Donaldson's comment in his first report about Donald Walker's business succession planning "invention". Criticism was made that Donald Walker had not in fact invented this concept. The criticism depended on the use of the word "invention" literally. In his report, however, Donaldson had in fact placed quotation marks around the word "invention". He was not intending to use the word literally. Donald Walker's explanation should be accepted, namely, that he, Donald Walker, was claiming that he had a unique opportunity.
2. The other argument advanced was that Donald Walker's initiative was frustrated by National Mutual, not as he had told Mr Donaldson, by the events of 1993. It was put that this was a significant untruth told to Donaldson. I disagree. As Donald Walker conceded, the disagreement between him and National Mutual about commission structures and who would service the clients was the immediate cause. But as Donald Walker explained, his state of health after, and as a result of, the incident was by 1998 such that he could not have gone ahead in performing his role in this proposal anyway.
3. To exclude the incident as a cause of the failure it is necessary to exclude the effect of the incident on Donald Walker as a factor influencing National Mutual's decision. That has not been done and Donald Walker's assessment is plainly open. Whether it is compensable is another matter.

1. The defendants also attempted to challenge the credibility of Donald Walker and his case on the basis of his conduct in the course of the case.

1. Counsel argued that the way Donald Walker conducted himself in giving evidence belied his evidence about the effect of his injuries, physical and psychological, and the drugs he has to take, upon his capacity to work.
2. Counsel submitted at one point that his evidence was measured, articulate and responsive. At that time I commented to counsel that his description was reasonable. That comment requires elaboration.
3. Donald Walker was measured and articulate in that he tried conscientiously to consider and respond to the questioning, but this required considerable effort on his part. In that sense he was also responsive. But he had great difficulty answering questions with precision, and his answers were often non-responsive in the legal sense. This resulted in him being in the witness box longer than he would have otherwise needed to be. There were also times when his speech was pressured. I noted on a number of occasions that his anger would rise and he would control it, but towards the end of his evidence he had plainly had enough.
4. Dr Cole was asked by counsel for the first defendant to assume that Donald Walker had been in the witness box that morning, had had only one break and that he had answered everything responsively, was attentive, able to cope with questions with more than one concept and sometimes, when there was more than one question in them, he answered relevantly and lucidly. Dr Cole's response was to say that if that was the case then he had better control of himself than he had had when interviewed by him, Dr Cole.
5. Counsel, in any event, had overstated the matter to Dr Cole. But the distinction drawn by Dr Cole was an important one and pointed to the fact that Donald Walker had taken Mr Crewdson's advice to heart and tried to apply it and so had a made a huge effort to overcome the problems caused by his psychiatric illness and his medication and had had some success.
6. The arguments raised by defence counsel are not made out.

ALLEGATION 15: ALLEGED INCONSISTENCY BETWEEN PHYSICAL DEMONSTRATION AND EVIDENCE OF INJURIES

1. Counsel also referred to Donald Walker coming out of the witness box and getting on the floor to demonstrate his position and doing so with agility and getting to his feet with the help of his arms, showing no signs of discomfort. Counsel argued that this was inconsistent with his evidence about his injuries.
2. In my view, that conduct was not shown to be inconsistent with the evidence of his injuries and condition, bearing in mind that we do not know whether there were any subsequent adverse effects. Further, he was on morphine at the time and generally on medication and he may well have taken more. The defence did not seek to question him on these matters.

ALLEGATION 16: FANCIFUL CLAIMS IN RESPECT OF THE COMPANIES SUCH AS THE DANCE PARTY AND OTHER CLAIMS

1. If the arguments advanced for the defendants in respect of these claims are accepted, the plaintiffs' claims are unrealistic. I accept, however, that the plaintiffs believed, and always did, that the projects that they worked on so assiduously had enormous potential. As will have been observed from the above reasons for judgment, the projects other than the dance party had not gone beyond the embryonic stage. The dance party project had been trialled and substantial money lost, but the plaintiffs had shown their ability to stage and manage successfully a major and complex event. The issue was its financial viability and whether they had the ability to manage the financial side of the project to the point that they could make a profit in the next one. They believed they could and there is no doubting that at the time they were both capable, hard working and intelligent men close to the peak of their powers and with the ability to apply their intelligence, energy and focus to problems with great enthusiasm and effect. I do not see these claims as affecting their credibility as witnesses.

1. Counsel for the defendants referred to an incident on 6 May 1992, where Donald Walker was involved in a physical altercation with a man named Maxwell. Donald Walker sustained a number of heavy blows about the head and was taken by ambulance to the Box Hill Hospital.
2. At the hospital it was noted that he had "some laceration and superficial haematomas plus conjunctival injection". His skull and facial bones were x-rayed and he was observed for some hours. His symptoms subsequently included fairly generalised headaches which were partially responsive to analgesics. In addition he complained of a dizziness and floating feeling in the head and some scalp tenderness and still resolving swellings in the scalp. He complained of difficulty concentrating at work and finding direction and some problems with concentration and memory. His vision was blurred at times.
3. He was referred to Dr Kranz who saw him on 15 May 1992 and subsequently on 1 July 1992 and 31 August 1992. It appears that over that period he was suffering post concussive effects. It appears that a further appointment was made for 18 November 1992, but prior to that date Dr Kranz supplied a report to a firm of solicitors. That report did not refer to any intention to review the situation on such an appointment. Donald Walker gave evidence that it was not kept, the symptoms having cleared up after the August appointment.
4. The first defendant submitted that the incident gave insight into Donald Walker's personality and shows that his personality was not suited to access Centres of Influence. I have discussed that issue in that context.
5. As I understand the second defendant's submission, it seeks to rely upon this earlier assault, a little over a year prior to the incident, as something that caused the neck damage, or accelerated the degeneration of Donald Walker's cervical spine. The highest their case can be put, however, is that, as Dr Kranz agreed, blows to the head or face sufficient to cause concussion may also result in a whiplash type movement to the head and neck and, if that occurs, are likely to aggravate and accelerate the progression of osteo-arthritic changes in the cervical spine. The difficulty the argument faces is that the medical history following the Maxwell incident referred only to concussion and there was no evidence of any complaint of neck problems between that incident and 15 August 1993. The defendants were not able to produce evidence to elevate the issue beyond speculation. In any event, if the Maxwell incident had led to aggravation of a degenerative condition spine, it might have been relied upon as the basis of an argument for a reduced sum of damages, but not as a defence in respect of the neck injuries. That did not arise.
6. What is of particular significance in the present context is that counsel argues that an examination of Donald Walker's evidence on this matter shows that he tried to downplay the violence involved and his purpose in doing that was to avoid any question that the Maxwell incident may have resulted in ongoing physical symptoms. It is asserted by counsel for the second defendant that the plaintiff, when asked to describe the incident, spoke only of a blow to the face and that it was only when later "confronted with the details of the history...that he admitted he had received eight punches to the face".
7. The premise is not borne out in by examination of the transcript. The initial focus of those questions[315] was on whether Donald Walker had provoked Maxwell, and not on the number of blows. His initial description of what occurred when cross-examined was as follows.

"Well, contrary to the scenario that I just put to you, is it

your evidence that Mr Maxwell started the fight? ---

Yes, it is.

And where do you say he struck you? ---

He struck me just in the face."

1. He went on to say that he did not lay a finger on Maxwell. What he was saying was that he was attacked by Maxwell who struck him in the face. He did not say that there was only one blow. He simply said he was "struck..... in the face". The issue raised by cross-examining counsel was provocation, not the number of times he was struck.
2. Counsel for the first defendant then went on to cross-examine on the basis of a single blow:

"You could say on oath to his Honour that 'the blow to my face was unprovoked' you didn't provoke it?"

A further question followed predicated on a blow to the head.

1. The argument assumes that the witness should have intervened to challenge a subsidiary aspect of counsel's questions instead of responding to the point of counsel's attack. The initial question was in fact unfair - a little like the question "when did you stop beating your wife?".
2. Later, counsel for the second defendant attempted, but failed, to complete the ground work for the criticism he now makes by asking Donald Walker whether he had in his evidence said that he received a number of blows to the head. Donald Walker replied in the affirmative. Counsel then put to him that he had never mentioned receiving a blow to the head, let alone blows. He replied that he could not recall what he said but he certainly had hits in the face. He was then asked a triple barrelled question:

"It is only presented with this document that you now admit that the Maxwell incident was far more violent and involved receiving multiple blows to the head."

1. The exchange provides a further example of the difficulty that Donald Walker had in responding to questions because of his illness, medication and fatigued state, a difficulty compounded by the content of the questions. Because of Donald and Marcus Walker's difficulties, it was imperative that cross-examining counsel, as well as his own counsel, kept their questions clear and simple and avoided questions with multiple parts. In some instances like the one above, the party attacking the answer cannot demonstrate that the "yes, the front of the face" involved acceptance of the first two propositions not the last. Nothing was done to clarify that. It was for the party challenging the credibility of the witness to demonstrate that the "yes" covered all aspects.
2. I am satisfied that Donald Walker's evidence in these matters was honest and he did not seek to downplay the violence of Maxwell. If any criticism is to be made it should be made of the questions and the failure of his counsel and the presiding judge to stop questioning proceeding in an unfair way.
3. I am satisfied that there is no evidence to support a case that any damage was done to Donald Walker's neck in the altercation with Maxwell. I am satisfied that at the time of the incident he was in good health with none of the symptoms that have since emerged.

ALLEGATION 18: DISHONEST TAMPERING WITH FIGURES IN THE PRITCHARD REPORT

1. The issue concerns a whiting out of the number "1" in a reference to a 12 month treatment period referred to in some, not all, copies of Mr Pritchard's report of what he was told by Dr Krantz about the Maxwell incident. It was put that this was whited out by Donald Walker for his own benefit; it was designed to diminish the impact of the Maxwell incident and so avoid any suggestion that some or all of his physical injuries may be attributable to that incident. It is put that Mr Pritchard knew nothing about the change. The defence referred to the fact that Donald Walker gave evidence that he saw Krantz on three occasions over a three and a half month period. I note that it seems reasonably clear from other evidence that Dr Krantz did not see Donald Walker over a 12 month period; it was somewhere between two to five months.[316]
2. Donald Walker acknowledged the changes in the document. From his evidence, it is clear there was some confusion in his mind at relevant times as to the period over which he did see Dr Krantz. As to the figures, he agreed both the "12" and the "2" were inaccurate. His argument was that on any view, 12 months was a typographical error and he made notes on the documents. The reference to 12 had been left on other versions of the document. His evidence was that the whiting out was done purely for his own purposes. He said he was used to using white-out all the time. He said that he had whited out incorrect sections on documents on at least six occasions.
3. Ms Van-der-Vlies gave evidence of the work she did in dealing with discovery for the plaintiff. It involved a vast quantity of documents which she found in piles. She described the situation as a total shambles. She said Donald Walker sat there with his white-out, whiting out and sticking notes on documents and passing them to her. She described it as being aggravating at times because he would forget to remind her that it was still wet and it would stick to the side of her hands. She saw him amending documents with white-out dozens of times. The witness referred to both whiting out and sticking notes on documents. She described a complicated process of sorting the documents into separate piles and the processes by which he stuck notes to documents. She also gave evidence of having checked the indices of bundles of documents in counsel's chambers which referred to copies of the Pritchard report. She said that all the Pritchard reports in those documents referred to a 12 month period, not a two month period. She could not find a copy with the "1" whited out. Copies were tendered and marked "Y". Counsel submitted that the documents tendered showed that there were four different sources for the 12 month period, two of which had been prepared by the witness. Shown a copy in cross-examination, she pointed out that there appeared to be a rather large space created between the 2 and the typing before it, which would not be there with the normal balancing process. She said she had not physically seen a copy with the 12 converted to 2 and a note attached to it, but she said that, if she had handled it, she would have been unaware. She used to place the documents with notes on them in a particular file. She repeated that the practice was, in sorting things out, that anything that had changes on it went into one pile and she did not again touch it. They were documents upon which Donald Walker was going to work and when he was satisfied with them he would return them. She agreed that the opportunity was there for Mr Walker, nonetheless, to put anything into the discoverable documents that she may have kept out.
4. When Mr Pritchard was in the box, he was asked how long Dr Kranz cared for Donald Walker and he said two years and then corrected himself to 12 months. Counsel for the plaintiff put to him that his report read two months, but it was in fact 12. He said that the copy of his report he had which had been faxed to him by Mr Meldrum's office said 12 months. Mr Meldrum and Mr Langmead had copies stating 2 months. When cross-examined, he said he did not have his original report. He had received his copy from the plaintiffs' solicitors.
5. The issue is a storm in a teacup. It has not been demonstrated that there was in fact anything sinister in what was done. It would seem to have been that the document which contained the alteration, one which, according to Ms Van-der-Vlies' evidence, would be observable, even if photocopied, was an internal document for the plaintiffs and not intended to be discovered or intended to be used to mislead. If Donald Walker had been deliberately setting out to deceive the parties and the court, he had to ensure that the copies with "12" on them did not exist. He singularly failed if that was his plan. He would have to have been particularly stupid to embark upon such a plot on what was a most and marginal issue. Donald Walker is not stupid. No such intention is demonstrated. There was simply confusion and error in the supply of copies of one of the very many documents discovered and produced in this case.

ALLEGATIONS RAISING ISSUES OF RELIABILITY AND NOT DISHONESTY

1. Counsel for the first defendant also submitted that he had lied in evidence about the following matters. Generally, the arguments have not been made out. They raise, however, issues of relevance to the reliability of Donald Walker.

ALLEGATION 19: DONALD WALKER LIED IN ALLEGING IN HIS EVIDENCE THAT HE SAW CARTER PUNCH HIS MOTHER CAUSING HER TO FALL TO THE GROUND

1. Counsel submitted that the allegation was a lie, made to ensure the success of the estate claim. Several points were raised by counsel for the defendants.

(a) It was put that Donald Walker did not tell Dr Cole when interviewed in March 2007 that he saw Carter punch his mother causing her to fall. Dr Cole recorded in the history an account from Donald Walker about what his mother did.

"His mother who had sat in a table raised herself up and hit one of the Policeman across the back with her emaciated hand."

"That was enough to stop him beating Mr Walker and when he reared up he knocked her to the ground, dislocating her shoulder".

No treating doctor was told of a punch.[317] Donald Walker's response was that he thought he did tell them**.**

According to the 2005 report of Mr Crewdson, Donald Walker told him in the course of consultations, beginning in September 2000, that he lost consciousness and there was a twenty minute period for which he had no memory and it was the next day that he learned about what his mother had undergone and her injuries. Mr Crewdson records that Donald Walker said that she had been "knocked to the ground".

(b) It is alleged for the defence that Mrs Walker made no reference to being punched when interviewed by Pluim. That is true. Rather she spoke of being pushed.[318]

(c) The defence also relied on Mr Meldrum's opening in which he referred to the officer pushing her over, but did not refer to a blow, such as a punch. Counsel submitted that this pointed to Donald Walker's account as being a fiction.

1. As to the alleged failure to tell Dr Cole, it is true that Dr Cole did not record that she was "punched and fell to the ground" and his evidence was that Donald Walker did not tell him that. But he also did not record how the person knocked her to the ground. He also did not mention the use of a walking stick. His note is consistent, however, with Donald Walker having told him that Carter had punched her and she fell to the ground. [319]
2. That argument, and the argument based on the alleged failure to mention the punch to doctors, also fails because of the issue identified by Dr Cole.
3. As to whether there was a punch, there is no evidence from another source to support Donald Walker's evidence of Carter punching Marcia Walker. In his evidence, he places the sequence of that event as being after he is handcuffed and with the other police present. He also has Carter holding his baton in his hand while punching her.
4. I accept that it was Carter who caused her to fall and it was in that incident that she dislocated her shoulder. The preponderance of evidence, however, would suggest that Donald Walker was incorrect in saying that Carter punched his mother. The probabilities are that she was pushed. Carter said that to Pluim and to Rodgers. Mrs Walker said that also, at the time when she attended the hospital.
5. But I am satisfied that, in giving his evidence, Donald Walker believed he was telling the Court what he saw. The event appears to have occurred towards the end of the beating. It is likely, as he has said, that he was going in and out of consciousness. If he saw the push, in his state, he could easily have been mistaken in misinterpreting Carter's actions. He could easily be mistaken about the sequence. It was also a classic situation in which there was likely to be confusion and blanks in memory and the blanks were filled in as information was received over time as the events and information was revisited by he and his mother and he came to have what he believed to be a clear and vivid memory of what he described. It would not be the first time that such a process has occurred. The more likely explanation, therefore, is that the evidence he gave was honestly given but he was mistaken as to what occurred.
6. As to his counsel's approach, it may be contrasted with the allegation in the statement of his claim. The latter points to the drafter being instructed that there was a punch. Mr Meldrum stated he did have instructions about the punch. Counsel's approach in opening was either a mistake or reflected counsel either not wanting to overstate the case or his assessment of the probabilities and the finding ultimately he sought. It is not shown that counsel's actions revealed counsel's assessment of the honesty of Donald Walker in any way.
7. I am not persuaded that Donald Walker lied in his evidence. I accept on all the evidence, however, that the finding should be that Marcia Walker was pushed by Carter, not punched.

ALLEGATION 20: DONALD WALKER LIED ABOUT BEING BEATEN WHILE HANDCUFFED

1. In evidence, Donald Walker said he was beaten while handcuffed. His counsel submitted that the marks on his wrists and damage to the right elbow were consistent with him having been beaten while handcuffed.

Counsel for the first defendant submitted that there was no expert evidence to support the argument that the marks on his right wrist pointed to him having been beaten while handcuffed. Further, in relation to the reliance on the damage to the elbow, there was no expert evidence made available by the plaintiffs in respect of that to support an inference that he was beaten while handcuffed.

In opening, Mr Meldrum simply stated that the marks on Donald Walker's wrists were from the handcuffs. Donald Walker himself explained the marks on his wrists as arising from the tightness of the handcuffs, which were not loosened despite his requests. So he did not in fact allege that they were evidence of blows to his handcuffed wrists.

As to the elbow, the argument raised by Mr Meldrum was that the most likely explanation for the badly swollen elbow and the marks on it was that there had been a surface against which a blow either by a baton or a boot would have caused it, and the most likely situation would have been when Donald Walker was on the ground handcuffed with his arms by his side. Without expert evidence it may be difficult to take this evidence beyond the point of saying that the elbow injury is consistent with Walker having been struck while handcuffed or having been stomped on or struck with a baton; for it may be said that it could have occurred while the arm was held, or lying on the floor. The latter is a likely scenario; but it would have been much easier to line the elbow up to be stamped on if he was lying on his face on the ground while handcuffed.

Neither side called expert testimony on the question of whether he was handcuffed when struck, but it would probably not have assisted. The evidence of the damage to the elbow, however, cannot be dismissed out of hand as the defence seeks to do. Whether handcuffed or not, the bruising to the elbow suggests a heavy blow on the elbow at a time when it was against a solid surface.

Reliance is placed by the defendants on the denials of Carter and Sesin. Reliance was also placed on Radford's response - "certainly not my recollection". It should be noted, however, that Radford made an art form of "not recollecting". Reliance is placed on Pluim's denial.

For reasons identified elsewhere, all those witnesses lack credibility (Appendix E - "Analysis of pre-event and post-event evidence of the police"). Reliance is also placed on Shenton's evidence but he did not, on his evidence, enter the premises until everything was over and calm was restored. The police denials referred to do not assist the defence in demonstrating a lie by Donald Walker.

(c) The lack of complaint to Rodgers or Harris about being beaten while handcuffed

The argument put was that Donald Walker was given the opportunity (question 226) at the police station to raise other matters and this also occurred when questioned by Sergeant Harris. Counsel argued that the inference should be drawn that what he now alleges did not happen.

Such an argument is at best naïve. The explanation Donald Walker offered for not taking up those opportunities was his disoriented condition and that he also thought that there was something sinister going on and he wanted to get out of the police station. His explanations are convincing. One could well understand him being concerned about why these events had happened, and having been beaten fiercely by the police officers and treated with contempt by them, one could well understand him wanting to get away and be concerned not to cause any more trouble for himself.

1. The points raised by the defence are not persuasive. Nevertheless, on the issue of whether Donald Walker was "beaten while handcuffed", the situation is one where the only evidence for the plaintiff is his own testimony and the inference that the injury to his elbow was caused when his elbow was lying against the floor. I am satisfied, as already noted, that by the time he was handcuffed he was in a semi-conscious state. There is a real risk that he is confused in his recollection as to the timing and manner of events - he might for example have been struck while an arm was held and assumed he was handcuffed. That is not an issue that has been raised by the defence (it would conflict with the defence that he fought like a lion and was wrestled to the ground), but, in considering the evidence it is something I should take into account.
2. I have come to the conclusion that he has not lied on this issue, but it has also not been established that he was in fact "beaten while handcuffed".

ALLEGATION 21: SOME OF SESIN'S INJURIES SELF-INFLICTED

1. Counsel for the defence referred to the evidence of Donald Walker that he believed Sesin inflicted some injuries on himself. Counsel submitted this was an indicator of his lack of credibility. Counsel submitted that it was in the extreme that any police constable would do such a thing.
2. Counsel for the plaintiffs submitted that the marks referred to by Donald Walker were marks as to which there was no satisfactory evidence given as to how Sesin came to have them. They were on his left upper arm as shown in Exhibit C11.[320] Counsel submitted that the preponderance of the evidence was that he would have been wearing a leather jacket on that night at the time of the incident. While there is no clear evidence that Sesin was in fact wearing his leather jacket, it was a cold night and the probabilities are that he was. In that case, it is difficult to discern how the injuries were caused. Sesin himself was unconvincing in his attempt to tie them to the incident. The photograph of the left forearm shows very faint lines on the forearm. In all the those circumstances it is reasonable for Donald Walker not to accept that these alleged injuries were caused in the incident. On the other hand, his evidence that he believed Sesin inflicted some injuries on himself (it should be noted not necessarily these) is an indicator of his hostile attitude to Sesin and a willingness to assume the worst of Sesin. This needs to be borne in mind in assessing any of his evidence against Sesin.

ALLEGATION 22: DONALD WALKER'S CLAIM REGARDING HIS SOCIAL LIFE WAS FALSE

1. Donald Walker was asked in cross-examination about his social life. He said it ceased completely for the ""preceding 5-6 years after the incident. He corrected his answer to say he meant "subsequent"' and he commented that sometimes he found himself having difficulty finding the word he was looking for. He was next asked how many functions he had had at his home in the succeeding five or six years. He replied "none at all".
2. Counsel for Carter submitted that this evidence was contradicted by Donald Walker's friend McRae. According to McRae, Donald Walker staged a thirtieth birthday party for McRae's wife which, if McRae's memory of his wife's date of birth was accurate, would have occurred in 1994. He said that Donald Walker put that party on at his house as a gift to her. He also gave evidence that he helped at parties some ten or fifteen times in the years after 1993. He said that he had been to a party there somewhere between 1995 and 2001 and performed the role of keeping an eye on things. These were business related, not social affairs..
3. While there was an element of advocacy in Donald Walker's response, his above general answers were made in the context of his own social life and not about business occasions.
4. Subsequently challenged by counsel for the second defendant about his statement that his social life ceased for 5-6 years and following, Donald Walker explained he was talking about his personal social life with the opposite sex, and going out to dinner with friends or going out to a social occasion. He said he did visit a few friends. He said he had about 3. He might have visited for an hour or an hour and a half. He did not go out with them. He said they might come and visit him. He said that there was no comparison between his social life before and after the incident.
5. This is an example of a response of Donald Walker lacking precision and involving a degree of advocacy and details being identified by counsel in cross-examination giving a complete picture. McRae, in any event, was plainly unsure as to when the business functions resumed and how many there were in the period of five to six years following the incident. Otherwise, McRae generally confirmed Donald Walker's evidence about the changes that occurred in his behaviour and functioning after the incident. His evidence on those matters is referred to elsewhere. In the end, comparing the detail of Donald Walker's social life before the incident with that over the 5-6 years following the incident, it was so different that it could be fairly said that it had ceased.
6. The main attack on Donald Walker failed. But the elements of advocacy revealed pointed to the need for care in approaching his evidence.

ALLEGATION 23: DONALD WALKER'S CLAIM OF AN INABILITY TO TRAVEL WAS FALSE

1. Counsel for both defendants submitted that Donald Walker had falsely claimed that he had been too ill to travel. Counsel argued that Donald Walker introduced that position in response to a question as to whether he continued to participate in work functions after August 1993. His reply was "I didn't go to those either. I did qualify to go overseas at one stage for a conference. I wasn't well enough to go."
2. To the extent that that exchange is relied on, the attack is overstated. True, in his reference to the overseas conference, he was arguing his case, but he had not been asked questions about such matters by his counsel and it had not been alleged on his behalf that his ability to travel had been adversely affected. In his non-responsive answer for the question he was talking about work conferences, not overseas travel generally. He gave as an example an overseas conference "at one stage", but he was not asserting that he was unable generally to travel overseas.
3. Cross-examined about this evidence, Donald Walker said that he missed a conference in Singapore, probably around 1997. Asked about other conferences he responded that he did not recall being invited to any other international conferences after 1993 that he wasn't able to go to. Pressed further on the issue, he said that he did not attend any international conferences. Counsel argued that he was specifically asked whether he attended any international conferences after 1993 and he replied no.
4. It should be noted that he had initially responded saying he didn't recall any others. Under pressure for a "yes or no" answer, however, he said "no".
5. It was plain, at the time of that initial questioning, that he was having trouble remembering and was not deliberately holding back. Counsel for the second defendant also submitted that when asked about international travel after 1993, he admitted only a trip to Asia as a holiday. Counsel took him to entries in Sound Investment Pty Ltd financial accounts and to an entry which was alleged to be an entry for car hire in New Zealand in 2000/2001 financial year. His response was to say that he didn't think he went over there. He then volunteered that between 1998 and 2004 he went to an IMFA Conference in Christchurch. The way he put it was that he "managed to get there". Counsel submitted that this was contrary to his earlier claim not to have attended overseas conferences after 1993. That is so, but in my judgment, all that had happened was that his memory had been refreshed. At the end of that day's hearing, a call was made for production of his passport. It was not produced. The explanation was that it was in Tasmania. On the following day,[321] counsel for the plaintiff said that the passports were not produced. Counsel for the plaintiffs said that Marcus Walker could not go to Tasmania, as he was in hospital. Donald Walker said he had the only key and there was, therefore, no one in Tasmania who could access the house.
6. Counsel for the second defendant then resumed his cross-examination. He referred to Donald Walker's evidence in which he admitted to further overseas travel after 1993. Donald Walker volunteered evidence of 3 trips to Thailand (previously only 1 had been admitted) which took place in 1998, 2004 and 2006 and on each occasion lasted 2 to 3 weeks, and 2 trips to Fiji in August 2005 and 2006, one less than a week and one a little more than a week with his brother. He also acknowledged a National Mutual conference in New Zealand that he "had to attend" in 1997. He was also asked about two trips to Perth in 1996 and 1998, Thredbo in 1997 (which he said had been Marcus), and Thailand 1999. Asked then about the international trips, he said that he was not well on those trips, that his brother was extremely ill and he needed to get him away from Melbourne. As noted by counsel for the first defendant, four of the five international trips had been taken since 2004. Counsel further complained that Donald Walker tried to impress the court by his evidence in relation to the New Zealand conference, which he maintained was a two day conference that he was obliged to attend, hence he had "no choice". That "he soldiered there" and managed to get there. The Perth journeys on two occasions were discussed.
7. The argument put forward by the defence reads far too much into the original exchange and the volunteered answer. The answer was an example of Donald Walker not answering a question and arguing his case. It was strictly non-responsive and for him to say any more would have been even more non-responsive. As the questioning progressed into New Zealand travel, he first denied the entry for car hire, but went on to volunteer that he had gone to an IMFA conference in Christchurch between 1998 and 2004.
8. He was questioned further on the following day by which time he had had an opportunity to refresh his memory. He had also been referred to a number of documents. Questioned further, he freely acknowledged the additional travel mentioned. Counsel seek to read too much into those passages of evidence. I note that counsel for the second defendant argued that it was only once Donald Walker realised there was sufficient information of the accounts of Sound Investments Pty Ltd to show that he had had significant trips overseas, that he gave the information. That allegation was never put to him.
9. There were at least two possible explanations for what had occurred. One was that he was being dishonest and giving up once he knew he was caught. The other alternative was that he had forgotten and remembered subsequently. I consider the latter the more likely. In any event, the issue not having been explored properly, defence counsel had not established their point.
10. Donald Walker's sin as a witness was to engage in some advocacy in the initial exchange. I note that he maintained in dealing with this line of cross-examination that life was very difficult, but he continued to try and do his best. The fact was that his travel was significantly impeded, as was its pleasure. Having regard to his physical and psychological condition, it must have been. Counsel for the defendants did not succeed in their attempt to have Donald Walker regarded as a discredited witness. The exchange, however, re-affirms the need to approach his evidence with care.

ALLEGATION 24: ABANDONMENT OF CONSPIRACY CLAIM BUT CLINGING TO THE BELIEF THAT IT WAS CORRECT.

1. As noted above, Donald and Marcus Walker in their own proceedings originally alleged a conspiracy involving Ms Hamm and police officers. Prior to the hearing, that claim was abandoned. Donald Walker, however, still believes there was a conspiracy.
2. As counsel for the plaintiffs submitted, there is a very significant distinction to be drawn between a forensic decision to abandon a claim and the belief that the claim is a sound one. It is obvious that if the conspiracy claim had been pursued it would have added very considerably to the length of the proceeding and would have been complex and difficult to prove.
3. As to the soundness of his belief as to a conspiracy, that could only be judged after an examination of the basis of all the information on which he relies. The claim having been abandoned, it has not been pursued and, among other things, there has been no investigation of the basis of the belief, including what Ms Hamm may have said to Donald Walker. It is not difficult, however, to identify from the evidence admitted in this case, facts and circumstances which could be used legitimately to advance a conspiracy theory, even if there was no conspiracy. It is also unclear, from what Donald Walker has said, in evidence, what the extent is of the conspiracy that he now believes existed. The findings I have made about the witnesses called by the defence and the events on the night might also be called in aid legitimately by any conspiracy theorist.
4. The issues raised do not reveal dishonesty on his part. They do, however, reveal an attitude which has the potential to affect reliability of his evidence.

1. If a different view should be taken about any of the above matters and the arguments of defence counsel accepted, they need to be weighed with any other criticisms that are made good. Bearing in mind, however,
   • Donald Walker's state of health,
   • his fatigued state,
   • the fact that he was, and had been for many years, taking Kapanol, and
   • the thoroughness and detail of defence counsels' cross-examination.

it is surprising that there were not many more points to be raised by them.

1. In the end, what mattered was Donald Walker's presentation and performance in the witness box. Rightly or wrongly, I have come to the conclusion that as a witness, he was honest and endeavoured to be accurate but his evidence needed to be scrutinised and considered with care.

ATTACKING DONALD WALKER'S EVIDENCE THROUGH SHEEHAN

Donald Walker's behaviour after the incident in business was normal

1. Counsel for Carter submitted that Sheehan's evidence as to Donald Walker's personality after the incident was essentially one of normality and that the complaints made as to his behaviour reflected the considerable pressure in conducting a business and in prosecuting the proceedings.
2. A consideration of the whole of the evidence of Sheehan about Donald Walker, however, points to Donald Walker behaving abnormally and the explanation for that behaviour lies outside the pressure of business. Sheehan, however, was plainly someone able to cope with that sort of behaviour and he continued working because he enjoyed the work.

1. Counsel also submitted that it was significant that Mr Sheehan said that he was not aware of anything to suggest that Donald Walker had any particular concerns about personal security other than his use of the intercom at his apartment. It must be borne in mind, however, that Sheehan has seen Donald Walker only in the apartment block which has a security system giving him control over the entry of any people. Asked if he would call it pretty strict, he described it as "rigid". There is no conflict in their evidence.
2. The evidence of De Cesare was criticised by comparison with Mr Sheehan's evidence. In fairness to De Cesare, however, his reference to incredible paranoia and Donald Walker's concerns about personal security and the attempt to obtain bullet-proof vests, related to a period much closer in time to the incident than the period about which Mr Sheehan gave evidence and, for much of the time addressed by De Cesare, Donald Walker was not living in premises with a security system.

1. Counsel for the defendants attacked the credibility of Marcus Walker on several bases.

ALLEGATION 1: MARCUS WALKER'S MANNER OF GIVING EVIDENCE WAS NOT PLAIN OR STRAIGHTFORWARD

1. Counsel for the first defendant submitted that Dr Walker did not give evidence in a plain and straightforward fashion. Counsel submitted that he was discursive and digressed.
2. As to the first matter, views may differ, but my assessment of his performance was that he attempted to consider the questions carefully and precisely, but had difficulty doing that and he also had difficulty in providing precise and focused answers. All counsel had difficulty with this including his own. At the same time, it seemed to me that he was aware of, and trying very hard to conscientiously discharge, his obligations as a witness. It seemed to me that the problem lay in his illness and medication and the impact they have had on his ability to focus and concentrate.

ALLEGATION 2: MARCUS WALKER EMBELLISHED HIS EVIDENCE IN ALLEGING THAT POLICE BROKE MARCIA WALKER'S ARM

1. Counsel argued that Dr Walker embellished answers when he thought it would assist the plaintiffs' case. As to that, he gave as an example Dr Walker's evidence, allegedly inconsistent with earlier evidence, suggesting that the police had broken his mother's arm.
2. In my view, it overstates the reality to argue, as counsel for the second defendant did, that the second plaintiff did not persist with his allegation that Marcia Walker had said "I think the police have broken my arm". He did not in fact advance, with any confidence, the proposition that she had said that to him. The essence of his evidence was that he could not swear with any certainty as to whether he received that information, and if so, how that came about. This is likely to be the situation. Because of his discussions with his brother and mother, he would have considerable difficulty now saying precisely what his source was for having information that his mother claimed that the police had broken her arm - particularly if, at the time, he had simply made the assumption that that was what had occurred. Such an assumption was highly likely. He was not likely to consider that Donald Walker might have broken his mother's arm.
3. Marcus Walker had been asked in his evidence-in-chief what, if anything, Marcia Walker had said to him in their telephone conversation. He replied:

"She said Marcus, come straight away, I think my arm has been broken and Donald has been terribly injured"

1. The alleged inconsistent evidence was given in cross-examination. The questioning was directed to the information that Marcus Walker had when he was making observations of the inside of the unit:

"You say you had information about who had allegedly done what to whom?---The only information I had was the comment on the phone from my mother that Donald has been terribly injured, and words to the effect 'I think the police have broken my arm."

1. It should be noted that the cross-examiner's question did not ask what Mrs Walker said. Instead of answering "yes or no", he elaborated in his response. As to the content of the information, the words relied on were qualified by "words to the effect..." -indicating some uncertainty. Assuming that she had actually spoken to him of her arm being broken, it was unlikely that it was broken by Donald. If it had been, she would have said so. In addition, if she had fallen over and broken it, she would have described what occurred differently.
2. It was put to Marcus Walker that if the information conveyed had been that the police were the perpetrators, that would be crystal clear in his mind. He disagreed because of the shock involved in getting the news. In the cross-examination that followed, he accepted that he could not recall if his mother said those words in the telephone conversation or when he spoke to her in the ambulance, and that it could have slipped his memory because of the shock. It should also be noted that in cross-examination, in relation to his evidence-in-chief, he commented that he did not recall the precise words, that what he said was "the gist". He also said:

"but if given the extreme shock of discovering that circumstance, and my arrival coinciding with the arrival of another police car and my finding numerous police inside, dare I might have made a few assumptions, and indeed, I do recall addressing the three of them in the kitchen, and I remember exactly with my arms on either side of that return with the knife and the cutting board between my arms, and addressing them with the exact words, 'there is something very wrong here."

1. The exchanges are an example of the difficulty Marcus Walker had throughout his evidence in trying to understand the questions with precision and then trying to respond with precision and clarity to the question as he had interpreted it. The cross-examination was, and criticism is, based on the contrary assumption. These difficulties, however, have the consequence that his evidence has to be approached with care and caution.

ALLEGATION 3: MARCUS WALKER EMBELLISHED HIS TESTIMONY TO MEET RUTH HAMM'S ALLEGATIONS

1. A further embellishment was suggested by counsel for the second defendant. Comparison was made (Submissions - 92 to 97) between his detailed observations and recollection of his inspection of the unit when he arrived, and some of the allegations made against Donald Walker, namely, that he
   • would not let Ms Hamm leave the premises,
   • had locked her belongings in the study and
   • had threatened her with a kitchen knife.
2. It was put that the alleged observations precisely answered those allegations and were a subsequent creation, because at the time he inspected the unit he knew nothing of what had been alleged by her.
3. Counsel for the second defendant identified the following details given by Marcus Walker:

(i) The number, gender and location of police officers present;

(ii) A description of the food on the stove and the state of the flame of the grill;

(iii) The presence of tomato sauce on the ledge near the stove and burn marks to the skirting and tiles near the stove;

(iv) The fact that the kitchen and dining room doors were locked;

(v) The presence of a kitchen knife (including a description of its length and colour of handle) on a plastic chopping board, together with what appeared to be potato juice residue;

(vi) The fact that there were no similar knives elsewhere in the kitchen and particularly not in the sink;

(vii) The fact that both the doors leading to the pool area were not locked and the top and bottom bolts were not engaged;

(viii) The fact that he checked every room and was able to gain access to the office.

1. In my view, the matters he observed did not assist the first plaintiff to meet the three allegations listed.
2. As to the issue of not letting Ruth Hamm leave the premises, the observations referred to included that the kitchen and dining room doors were locked. That did not assist Donald Walker. The reference to the doors leading to the pool area being unlocked and the top and bottom bolts not being engaged did not assist Donald Walker in meeting the allegation because there was no evidence to suggest that if Ruth Hamm had attempted to use those doors she would have been able to leave the premises.
3. As to the allegation that Donald Walker had locked Ruth Hamm's belongings in the study, the observation recorded was simply that he had been able to gain access to the office. But the critical issue was the state of that access when the police arrived - something on which Marcus Walker could give no evidence. Donald Walker in any event did not dispute it was locked. If he and Marcus Walker had put their heads together after the event to try to meet her allegations, that was not one that was apparently disputed.
4. As to her allegation that Donald Walker had threatened her with a kitchen knife, that was not addressed by the evidence he was able to give about what he observed in the kitchen. Rather it confirmed that a kitchen knife was present. His observation that they were not in the sink, might assist to contradict the evidence of Sesin that he placed a knife in the sink but it could have been moved later. The evidence referred to does not answer an allegation that Donald Walker threatened Ruth Hamm by waving a kitchen knife in front of her face. Rather, it confirms that the opportunity to do so was there.
5. Also linked with this argument attacking the credibility of Marcus Walker is the proposition that it was remarkable that he should have noticed these particular matters at the time he claimed to have made his observations, when he knew nothing of what had been alleged against his brother. Counsel also sought to challenge the observations by a comparison with Marcus Walker's apparently limited memory about the content of his conversation with Marcia Walker.
6. It is clear from his evidence, and I do not understand it to have been challenged, that his mother had told him that his brother was seriously injured and had been arrested and that she had a broken arm. He also said that, as he said inside the premises to the three policemen, he held the view that there was something very wrong. Having regard to the circumstances and the state of shock he was in, it was not surprising that he would have examined the premises somewhat obsessively, ignoring the need to be with his mother. At the same time, the evidence related to his observations made while he was in the process of attempting to secure the premises. Memory of physical observations can often be more certain than that of a conversation, particularly one carrying shocking news. Inside the premises, he had moved from that conversation to the investigation of what had gone wrong. In addition, the fact that he is now able to remember those matters may reflect the extent to which he focussed on those events in the days immediately following the incident and no doubt thereafter.
7. I am not persuaded that the matters relied upon point to a deliberate embellishment by Marcus Walker designed to meet Ms Hamm's allegations.

ALLEGATION 4: MARCUS WALKER'S CLAIM OF ENTITLEMENT TO USE HARVARD LETTERHEAD WAS FALSE

1. Counsel for the first defendant questioned the honesty of Dr Walker in his assertion that his use of paper with the Harvard University letterhead, for the purpose of his academic reference summary, was an "authorised" use of that letterhead. It was put that his explanation in re-examination, namely that he used the letterhead because every piece of paper was engrossed with the Harvard Medical School letterhead (save for note pads), lacked credibility.
2. When one looks at the original cross-examination, Marcus Walker was asked whether he was authorised to use a document with Harvard Medical School letterhead for the purpose of his "academic reference [summary]". His response was:

"It was never denied whilst I was there, indeed I was issued with, as with other universities, I was issued with amounts of paper with that letterhead"

1. Implicit in his answer was a suggestion that the use was permitted as he understood it and in that sense "authorised". The issue was left there by Counsel. Marcus Walker was not claiming an express authority for a particular use. As to his re-examination, after indicating that he did not use the reference summary for official purposes, but would use original references for that purpose, he was asked why he chose to put the summary on the Harvard Medical School letterhead. His response was to say that he did it while he was at his desk at Harvard and every piece of paper he used, other than just pads, had the letterhead on them. To say that that answer lacks credibility involves an assumption that that would not be so. But it would not be at all surprising for a prestigious institution such as Harvard Medical School to make a point of giving paper with its letterhead on it to post-docs for their use.

ALLEGATION 5: MARCUS WALKER EXPRESSED GRANDIOSITY ABOUT HIMSELF AND HIS CAREER

1. Counsel for the first defendant also submitted that there were several examples of expressions of grandiose thoughts about himself and his career which made it important to approach his evidence about himself and his career and his life with some caution.

1. Counsel referred, for example, to his statement made 19 March 2002 that he was "unfamiliar with anyone who emulated my own achievements and intended pursuits". Counsel argued that this showed a man with extravagant ideas of his capacities and this affected his whole evidence. The material referred to was contained in a letter written by him to Mr Hugh Sarjeant of Cumpston Sarjeant Pty Ltd. It was contained in a covering letter of that date directed to the preparation of material by a forensic accountant. It appears he had been asked to identify contemporaries whose aptitude and career paths might be compared to his own. His full comment was:

"With due modesty I am unfamiliar with anyone who emulated my achievements and intended pursuits"

"My capabilities far exceeded the average. It cannot therefore be unreasonable to reflect same in those categories identified by the evidence for my perspective career."

1. There is no question that Marcus Walker's achievements up to and including his work at Monash were outstanding in a wide range of areas and few people would have emulated them. At the same time, he plainly, like Donald Walker, had a high opinion of himself. Their high opinion of themselves was warranted, but may have contributed to them pursuing the various business opportunities which, with the benefit of hindsight, do not now appear to have been likely to be of commercial value. It is an issue to bear in mind in assessing the evidence that both have given in relation to those matters and any other matters where their opinions of themselves may have affected their expectations and their evidence.

1. In the same context, counsel for the first defendant was critical of Marcus Walker's account of what brought him home after Harvard. Counsel submitted that his evidence was that he returned to Australia because he wanted to contribute his expertise to his country and counsel contrasted that with his counsel's opening, where he said he would use a different term and say that Marcus Walker was "homesick".
2. In fact, what Marcus Walker had said was that he had two reasons for coming back to Australia. One was the illness of his mother and the other was he wanted to contribute his expertise to his country. To assert the latter might be thought to be somewhat immodest, but he would not be the first high quality scientist, who had opportunities overseas, to come back to Australia because he wanted to contribute his expertise to Australia and who was prepared to say so. This is not so much grandiose as immodest.
3. Bearing in mind the closeness of Marcus Walker's relationship with his mother, and the then recent diagnosis of her terminal illness, it is, in my view, believable that he would have given high priority to returning to Australia.

1. Counsel also sought to rely upon the evidence of Dr Sale that Marcus Walker had said to him that he had invented a machine that would have cleared his mother's blood of "defective lymphocytes".
2. When this was referred to Marcus Walker in re-examination, he said that he could not imagine that he would have said that it would have cured her disease. He said he was in fact at the very early stages of developing such a machine and that he would not have been so confident with Dr Sale as to make such an assertion. The statement in the report is Dr Sale's summary of his perception of the substance of what Marcus Walker had told him. Bearing in mind Marcus Walker's difficulties, he may have been misunderstood by Dr Sale. I do not regard Dr Sale, in any event, as having provided an objective account of his dealings with Marcus Walker and do not have any confidence in the accuracy or objectivity of his perceptions in this case.

1. It was said that another example of grandiosity was his evidence that his supervising professor had called a national conference on the strength of his work, that he did not speak at the conference because it coincided with his return to Australia, that his research in fact challenged 25 years of research and about 25 current scientists and their work, and there were therefore a lot of careers on the line including his own. He also gave evidence that his research set off probably another "6 post-docs". Counsel also referred to the fact given in cross-examination that because his work was so crucial, he had to stay for an extra two months to complete it (in the course of cross-examination about his pay levels).
2. He was challenged in cross-examination about his proposition as to whether careers were on the line and was asked whether he could point to a single one of the 25 scientists upon whom his findings had any impact at all. He said he could not. He confirmed that he had left the United States when the conference was held, but he was not challenged as to that evidence at the time it was given.
3. As to the importance of his research for the 25 other scientists, he was unlikely to have known without a lot of investigation on his part. There was no evidence that he had made the attempt. As to the importance of the work, I accept his evidence that while at Monash he had an arrangement to spend time doing the statistical work required to check his research. I note that the defence did not put or call any evidence that might have resulted from making their own enquiries of Harvard Medical School about the significance of his research. Bearing in mind the resources that have been expended on this case, such an exercise would not have been extravagant.
4. Counsel also submitted that it "beggars belief" that a university such as Harvard could not find funding for research as significant as that described by Dr Walker. This criticism was based on evidence that he gave in chief, that the statistical analysis that remained to be done had not been done by him at Harvard because "the funding ran out". As I understand his evidence, however, what he was referring to was that his then funding ran out. He also had given evidence that he had been told by his professor that, if he wished to remain and continue working at Harvard, he could do so. He said he chose to return to Australia. He said he believed he had the option to remain there. The criticism proceeds on an incorrect assumption.

1. Counsel for the first defendant also compared the opening of counsel for Marcus Walker and his evidence about the role he played at Monash. His counsel had opened the case on the basis that Marcus Walker would give evidence of the significant role that he played there, and about certain boards that he was on within the Department of Obstetrics and Gynaecology. Counsel for the first defendant submitted that he did not give any evidence of any significant role at Monash and that his evidence about representing his department on a board at the main campus was unconvincing.
2. The argument proceeds on the assumption that counsel's instructions for the opening came from Marcus Walker on this issue. But the source of counsel's information was not identified. As to the evidence that Marcus Walker gave, it was vague and uncertain. But, as he said, he could not recall details. He was talking about matters that happened 20 years ago and they would have been matters about which he may not have thought much in the intervening years, particularly as his adjustment disorder worsened.

1. Another example of alleged grandiose behaviour referred to concerned Dr Walker's accounts of his drafting skills. Counsel referred to his evidence that when he was 21 years old he had "designed the family home to a quarter of an inch accuracy". Counsel compared this with the Exhibit A he had prepared which was a plan of Donald Walker's unit. Counsel said this was poorly drawn.
2. This is a curious argument. What is involved is a comparison between something done by a fit and well 21 year old and a sketch plan, not to scale, done by a person with an adjustment disorder and a tremor many years later. As to Exhibit A, his comment was "I have done better".

1. Counsel also drew attention to Marcus Walker's evidence that he won the only photographic competition he entered. This evidence was led in the course of counsel asking him questions about his interest in photography and when it developed. Counsel asked him if he had entered any photography competitions. He said he did when he was 26. Asked what the outcome was he said he won first prize. He could not remember how many competitors there were. Counsel then went on to explore his interest in photography.
2. The focus of the questioning was his loss of his interest in, and passion for, photography after the incident. This was not an example of grandiosity.

DANCE PARTY PROPOSAL, THE BEST SEEN BY THE ESSENDON MAYOR

1. The remaining matter mentioned was his evidence that the Mayor of the Essendon City Council, which had been approached for permission to run the Dance Party, said that the proposal was the best he had ever seen.
2. Again, this needs to be considered in context. His counsel had asked him what role he played in getting the proposal reconsidered and granted. He spoke about the approaches he had made to the twelve councillors, identifying their concerns and addressing them, and rewriting the submission. He said that when they went back to see the Mayor, the Mayor said to them ""We've got good news for you boys."" It's the best proposal he had ever seen". In the context, Marcus Walker was purporting to give evidence as to what the Mayor had said about the proposal. The reference to the best proposal by the Mayor was gratuitous in one sense, but it was part of that evidence and it may well have been true. I do not see it as an attempt by him to promote himself or that it reflects grandiose thoughts on his part.

ALLEGATION 6: CREDIBILITY ISSUES RELATING TO THE ECONOMIC LOSS CLAIM OF MARCUS WALKER

1. Counsel for the first defendant submitted that the evidence of Marcus Walker about his difficulties lacked credibility. Counsel referred to the following examples.

1. Counsel for the first defendant referred to Marcus Walker's evidence that he had extreme difficulty starting and finishing intellectual tasks. Later in cross-examination, he volunteered that he enjoyed intellectual conversation. He also agreed that he had prepared thousands of pages of materials in preparing the case. He agreed that it could fairly be described as an intellectual task - "but not entirely". Counsel submitted that he attempted to explain this evidence on the basis of a distinction between intellectual tasks and correcting an injustice and described this in their written submissions as "plain humbug". He was also criticised for not being able to give an example in cross-examination of an intellectual task and the complaint was made that this demonstrated that he was not giving his evidence with any rigour.
2. Marcus Walker had difficulty initially responding to the request for an example, becoming lost in subtle distinctions - evidence again of his difficulties. He did in the end give an example of an intellectual task - attempting to recover by studying law at Sydney University which he had the opportunity to do but was unable to do.
3. He acknowledged that he had prepared a great deal of material, including detailed analyses in relation to the case. He distinguished those tasks as not so much intellectual as correcting an injustice. He also talked about his woodwork as being, in a sense, an intellectual task. He explained his ability to do that because it was therapeutic.
4. As I understood his evidence he was distinguishing essentially between intellectual tasks of an academic nature and those with an immediate personal non-academic nature and benefit - such as those that were therapeutic or addressing an injustice. Thus he had the capacity to focus his intellect in dealing with the injustice of the incident but not other intellectual areas - an important facet of his disorder.
5. The exchange with defence counsel highlighted a problem Marcus Walker had throughout his evidence. He was at times pedantic and attempted to draw subtle distinctions. At the same time, however, he had difficulty bringing his mind into focus, choosing his words and explaining himself. I am satisfied that this arose from his psychiatric illness and treatment.[322]

1. Counsel for the first defendant also compared Marcus Walker's assertion that he cannot maintain a conversation for more than 10 minutes, with his apparent capacity in the witness box to give evidence including cross-examination for many hours.
2. In assessing this comparison, his adjustment disorder must be taken into account. A key feature has been his pre-occupation with pursuing the injustice of the incident and its aftermath. In giving evidence he was pursuing that pre-occupation and performing part of the task to which he had committed himself for many years. It would have been one thing to find the capacity to do that; he could drive himself to do that. It would be another thing to find the capacity for a conversation unconnected to that cause.
3. In any event, to my observation, he found giving evidence a huge struggle. He was visibly tired but kept going. On occasions his hands were visibly trembling. Concentration and focus were always a struggle.
4. I note that after he gave his evidence he was admitted to the Victoria Clinic for treatment.[323] Dr Pargiter saw him subsequently at the Clinic prior to giving his evidence on 12 June 2007. He obtained a history from Marcus Walker (not challenged or objected to), that he had been admitted because he had become acutely anxious, agitated, had almost lost the power of speech, was tense, hobbled and shaking and was almost immobile. He was treated with an anti-depressant and Valium and when Dr Pargiter saw him, seemed much more settled.

1. It was sought to challenge his evidence about a reduced ability to read and absorb material, for example, official correspondence. Counsel referred to his annotation of a letter from the Australian Taxation Office which showed that he received and forwarded it on to Donald Walker on the same day - hardly a contradiction of his evidence. That act was also relied upon as a contradiction of his evidence about his inability to deal with official correspondence. It might have been if he had replied to it.
2. The major difficulty with this argument is that it is clear that his psychological condition has fluctuated.[324] One example, therefore, assuming it supports the argument, would not be enough.
3. Counsel also referred to his possession of a large number of books and his evidence that his reading habits had only marginally altered, he maintaining his interest in history and having become more interested in forensics and psychology. That, however, was a different issue to the question of his ability to read and absorb. The change mentioned also reflected his pre-occupation.

1. Counsel for the first defendant also submitted that Marcus Walker had demonstrated a capacity for great industry in the years that have followed the incident. Reference was made to his own evidence that he was resilient for some time. Counsel submitted that on the evidence he wrote thousands of pages of documents including letters, submissions and reports and that that work showed him to be intellectually agile. Counsel referred to his evidence that he spent 600 hours seeking to show that D24 job card was a forgery. Counsel submitted that he had demonstrated considerable capacity and that what was preventing him from exercising a capacity to earn income was the pursuit of the legal proceedings. Counsel submitted that his evidence about the furniture making and the building of a shed on his property in Tasmania, the restoring of a horse-drawn buggy, his pastimes of riding a motorcycle and playing music demonstrated that he still had a not insignificant level of physical and mental acuity.
2. Counsel for the first defendant was again seeking to rely on evidence of conduct that evidenced, or reflected, his adjustment disorder, to argue that, outside the focus of that disorder, he had the same capacity. But that plainly does not follow. His industry in relation to the case is directed to an important factor identified by Dr Pargiter in the development of his disorder, namely, the stressor that he (rightly) believed that grave injustice had been done and this stressor continued as he attempted to have that remedied. His disorder and depression had, however, prevented him from obtaining and pursuing study or employment. As defined by Dr Sale, who also diagnosed that disorder, an adjustment disorder involves a disproportionate reaction to circumstances which is sufficient to prevent the person functioning effectively either at work or home.[325] Most, if not all, of his other activities appear to be private and done in isolation and are seen by Marcus Walker as therapeutic. They do, however, offer a little hope for the future, particularly if the Walkers are vindicated.

1. In the course of cross-examining Marcus Walker, counsel for the defendants took him to his answers to interrogatories. My understanding is, however, that ultimately it was not sought to put argument based on that cross-examination. I note, however, that on several occasions, answers were included which bore no relation to the particular question to which they purported to be answers. His explanation for that result was a lack of care flowing from a lack of capability. On the other hand, there are other times, such as his answering of interrogatories relating to hobbies, where the answer was carefully drafted using a narrow view of hobby. The non-responsive answering of a number of interrogatories appears to have been more likely a consequence of error by legal advisors, and undue reliance on those legal advisors in the final stages of the engrossing and swearing of answers to interrogatories.

ANALYSIS OF EVIDENCE OF CARTER AND SESIN AND OTHER POLICE OF PRELIMINARY EVENTS ON 15 AUGUST 1993

1. The evidence of Carter and Sesin about the preliminary events of the night preceding the central assault incident can be broken up into a number of separate stages and issues:

(iii) The events immediately following the entry by the police.

(iv) The alleged assault with a knife by Donald Walker of Ruth Hamm.

1. I will discuss the defence evidence relating to the above. I have excluded Donald Walker's evidence from this exercise. It will be seen from my consideration of the relevant evidence of Carter and Sesin and their prior statements that what emerges is not simply that Carter and Sesin gave inconsistent accounts. Having regard to the nature of the events and the passage of time, that sort of problem would have been inevitable. What also emerges, however, is that they falsely reconstructed both major and subsidiary parts of the events of that night. The evidence given by Rodgers, Carter and Sesin on these matters also provides examples of the preparedness of Carter and Sesin to exaggerate their accounts and include untrue material. I note that there has been no suggestion of any incapacity affecting the reliability of the prior statements of Carter and Sesin. Further, the prior statements that are considered were made and recorded[326] in close proximity to the events. Thus a detailed comparison of prior statements and of statements made in evidence is of considerable value in assessing the credibility of these witnesses.

RECONSTRUCTION AND EXAGGERATION - THE INITIAL D24 CALL AND EVENTS FROM IT TO THE ALLEGED SCREAM

1. The evidence of Carter and Sesin about the call from D24 and what transpired at the scene prior to the alleged scream contains examples of an intent on their part to improve upon their original accounts of what occurred and to include some reconstruction, particularly on the part of Carter.

THE INFORMATION FROM D24 - A CARTER RECONSTRUCTION

1. Carter was the driver on the night and Sesin was the scribe. The Patrol Duty Report or running sheet written by Sesin and signed off by Carter simply recorded "attend 46 Essex Road S Hills re domestic in rear flat". In their formal statements they merely referred to "information received from D24".
2. Carter gave evidence, however, that he and Sesin received a job from D24 asking them to attend at the address because there was a report of a female being held against her will. Such an allegation was not put to Donald Walker when he was interviewed.
3. The origin of Carter's evidence is unclear. A possible explanation lies in what occurred in the Magistrates' Court. In evidence-in-chief, he commenced his evidence by referring to their attendance at 46 Essex Road "as a result of information received". In the course of his cross-examination before the Magistrate, the cross-examiner referred him to the entry on the D24 card "being held against will by de facto". He was asked if he remembered any message in those terms and he replied "The only message we were given was there was a female being held against her will."
4. As to Sesin, his evidence was that the entry in the Patrol Duty Return did not necessarily record everything they were told "just the information that surmises (sic) what the job is". He had no recollection of being told anything else.
5. If the message conveyed had been that now stated by Carter, it would have been recorded at each of the above stages because of its significance. What appears to have happened is that Carter took up a piece of information given to him in the Magistrates' Court and turned it into evidence.

1. The evidence of Carter and Sesin as to their going around the building to look through the kitchen window and observing no-one there, states a position about which they have been consistent in their statements, including the running sheet. While it may be said that Sergeant Rodgers' notes of his conversation with Carter include no reference to that activity, an explanation may be that it was not mentioned at the time or not noted. Whether this evidence was in fact a reconstruction depends ultimately on whether one accepts the evidence of Donald Walker that he was in the kitchen at the time preparing food. The other evidence, such as the evidence of food being found cooked on the stove and the knife on the cutting board, tends to support Donald Walker's account. His evidence may also be more readily accepted because of the unexplained failure to call Ms Hamm.[327]

AN ALLEGED VERBAL EXCHANGE BETWEEN MS HAMM AND DONALD WALKER

1. Carter and Sesin gave evidence in accordance with their formal statements that after Sesin had knocked on the door, Carter rang the bell and a male voice asked who it was and they identified themselves as the police. They said they heard Ms Hamm say "Let them in" and heard Donald Walker reply "No, I'm not letting them in", and said that it was shortly after that and other matters to which I will refer below, that Carter took the initiative and kicked the door in.
2. As to the contemporaneous material, Carter told Pluim that they heard a "bird" say "That's the police, just let them in."[328] There was no mention of a response from Donald Walker. For the defence, however, reliance is placed on Rodgers' notes and the Patrol Duty Return where a response is recorded but it is simply that a male voice said "No".
3. The evidence is contested by Donald Walker, who denied both aspects of the alleged statements. Again, Ms Hamm has not been called and there is no explanation.[329]
4. It may just be a coincidence that the detail of the conversation grew. Considered with the evidence and statements of what followed, however,[330] the more likely explanation is that it was simply an embellishment to strengthen the position of Carter and Sesin as to their forced entry into the premises.

EVIDENCE OF A SCUFFLE, THUD, THUMP AND BANGING AND CRASHING

1. In final submissions, counsel for the first defendant submitted that after the verbal exchange and immediately before Carter kicked in the door, there was a thud and a banging and a crashing (submission 86).
2. Carter raised similar details at a very early stage when speaking to Sergeant Pluim, describing "a bit scuffle and banging and crashing on the door". The detail, however, changed with each of his accounts. The Patrol Duty Return and Rodgers' notes, refer only to a "scuffle from behind the door" and "scuffling inside".
3. On the other hand, in his formal statement, Carter referred to there being movement and "a loud thump on a wall as if the people inside were fighting" - something not referred to by Sesin. When questioned in the Magistrates' Court, Carter agreed that the scuffling sound could have been made by a person walking to the door. Later in the Magistrates' Court he referred to a thud shortly prior to a scream. In his evidence in this proceeding, he maintained he heard a thud, but said he was uncertain as to whether it was on a wall or not.
4. Sesin, in his formal statement and evidence, referred to some scuffling occurring prior to the verbal exchange about letting the police in. He said he could not recall hearing a thud.
5. Here it appears that it is Carter who initially, in speaking with Sergeant Pluim, blew out of all proportion the nature and level of the sounds he heard. When he had calmed down, in the patrol duty return and in his conversation with Rodgers, he described the noise heard as scuffling. But he then attempted to inflate it again in his formal statement and evidence.
6. The defendants again face the difficulty, in the assessment of this unsatisfactory evidence, of the unexplained failure to call Ms Hamm.

RECONSTRUCTION AND EXAGGERATION - THE ALLEGED SCREAM

1. Carter's first statement about the alleged scream of Ms Hamm is recorded on the Pluim tape. Carter says in Sesin's presence that "she screamed". Sesin was silent. In speaking to Rodgers at the hospital shortly afterwards, Carter is also recorded as saying "F screamed". In their Patrol Duty Report, however, written by Sesin and signed by Carter before they went off duty that night, they stated that "she started to scream". It also recorded that they suspected a breach of the peace was occurring. In their formal statements Carter and Sesin recorded "she started to scream".
2. In-evidence-in chief, however, both re-inflated their description. Carter referred to her as screaming. He went further and said he had fear for her safety and fear that she was being seriously injured. He said it sounded pretty fair dinkum to him.[331]
3. Sesin went even further saying in evidence-in-chief that he heard a "scream of distress" and a "scream of fear". In cross-examination, he went further and said it was "a very loud scream ... a full lungs worth of scream". He also said that it went for as long as one can scream with one breath. He said he thought she was being threatened or being assaulted. He later contradicted that evidence about the scream by saying that it was cut short when the door opened.
4. There are plainly elements of inconsistency and exaggeration with both Carter and Sesin , in particular, inflating their description in their evidence.
5. There is another matter to be considered, however, which points to the statements and evidence asserting a scream being false.
6. If there had been a scream, particularly of the kind described in evidence, and one raising the concerns described, it would have been a very significant matter for the two police officers. It would have raised serious concerns about the behaviour of Donald Walker, his state of mind and possible aggressiveness. The scream raised real concern that it was the result of a criminal offence such as assault - as Carter suggested in his evidence. One would have expected any police officer in the situation as they purported to describe it, to have questioned Ms Hamm and Donald Walker about the scream and the cause of it. Both spoke with Ms Hamm and they did not ask her any questions about it. Both spoke to Donald Walker and did not ask him any questions about it. They could provide no satisfactory explanation for their failure to do so. Either there was no sound like a scream, or, if there was a sound, it was insignificant and did not warrant investigation or the kicking in of the door.
7. A further difficulty for the defendants in arguing for the acceptance of the unsatisfactory evidence of Carter and Sesin is their failure to call Ruth Hamm[332] and their failure to provide any explanation for not calling her. I am satisfied that the evidence that there was a scream was a fabrication.

RECONSTRUCTION AND EXAGGERATION - EVENTS FOLLOWING ENTRY

1. Several issues arise here. The first relates to whether, as asserted by Carter and Sesin in their evidence, the picture on the wall was dislodged because of the vigour of the action required by Carter to separate Walker from Hamm or whether it was a result of the door being kicked in. The second is the level of Donald Walker's resistance. The third is the position of Donald Walker and Ms Hamm when the police officers entered and whether and to what extent he was restraining her from coming to them.

1. Carter and Sesin made the above assertion for the first time in their formal statements and repeated it in their evidence. Sergeant Rodgers gave evidence about observing broken glass on the floor as he came into the premises. He also gave evidence that he was told by Carter and Sesin at the time that it was the result of the door being kicked in. He said that he could not recall being told that it was a result of any scuffle between Carter and Walker. Sergeant Rodgers' loyalties lay with Carter and Sesin, and he was familiar with the details of the matter. His evidence is significant. What they said to Sergeant Rodgers should be preferred. They had obvious reasons to create the other explanation, particularly if the door was kicked in before Donald Walker responded and if there was no scream. I note that this is another issue on which Ms Hamm was likely to have been able to give evidence.[333] The unexplained failure to call her only strengthens the case for rejecting the evidence of Carter and Sesin.

THE POSITIONS OF MS HAMM AND DONALD WALKER AND WHETHER DONALD WALKER WAS RESTRAINING MS HAMM

1. The contemporaneous material comprised the following:
   • A comment from Sesin in Carter's presence to Pluim

"Well, basically, when he's kicked the door in, he's virtually like run and stood at the door when we separated them. I have taken her into that room."

There was no mention of Donald Walker restraining Ms Hamm.

• Sergeant Rodgers asked Carter and took the following note:

"(M) leaning against wall just inside entrance.

(F) standing beside to the front of him. Separated both."

• Sergeant Rodgers agreed that he had been told nothing about Walker preventing Hamm getting to the door. He also agreed that if he had been told, it would have been important to record that fact.
• The issue was not referred to in the patrol duty return.

1. The formal statements of Carter and Sesin provide a stark contrast to the foregoing. They referred to the female standing behind Donald Walker, he restraining her by placing both his hands on her chest and stopping her from getting out or getting to them. Carter described her as appearing frightened. Sesin described her as being in a distressed state. Both referred to Walker restraining her and she "struggling to get free". They referred to Carter asking Walker to let her go and he refusing, Carter taking hold of the defendant and having a scuffle (Sesin describing him as becoming aggressive) and how this caused the picture to fall off the wall.

1. Both were questioned at length in evidence-in-chief and in cross-examination about what occurred. Carter did not swear up to, and also embellished, his statement in evidence-in-chief. Asked how Walker was restraining Hamm, he demonstrated by holding his hands out and up to the left side of his body. He said it could have been to the right. He described Walker as thereby preventing her from coming to them. He said in his statement that Sesin went to Ms Hamm after he, Carter, restrained Donald Walker. In his evidence, however, she came past Carter to Sesin. In re-examination he was asked what aspect of her conduct led him to believe that she was trying to get to them. This gave him the opportunity to confirm his statement account that she was struggling to get to them. The best he could do was to refer to her standing behind Donald Walker and to say "it was obvious she wanted to seek refuge with us".
2. Sesin, in evidence-in-chief, repeated the allegation in his statement with some embellishment - some strengthening and some weakening. Sesin said that Donald Walker had placed his arms around the upper and shoulder and chest region to stop her from getting past, and described her as trying to wave or push him away to the side and manoeuvre around him. As noted above, in his statement he had said that Ms Hamm appeared to be in a distressed state. Asked in chief to explain what it was that led to that conclusion, he referred to the way she was trying to manoeuvre past Donald Walker and the responses before the door was kicked in.
3. He retracted his evidence somewhat in cross-examination. I refer to his description of Walker holding up his arms to block her way - like Carter, creating a barrier. He said she was either wanting to come to them or go out the door. Cross-examined as to his statement to Sergeant Pluim, where there was no mention of Walker restraining Hamm and the two of them struggling, he said he was exhausted when he spoke to Pluim and it was in the heat of the moment and this would have made his memory "somewhat disjointed".
4. Sesin in his statement and evidence-in-chief was not explicit on the matter of whether Ms Hamm came to him or he went to her. He provided some embellishments in cross-examination. He said that Carter went to Donald Walker and told him to "let her through" and that she had then "gone past" and that he, Sesin, then took her into the kitchen. Such a manoeuvre was not mentioned in his statement or in evidence-in-chief. If that had happened, it would have supported the contention that she was struggling to get to them. He also volunteered a statement made by Ms Hamm when they came through the door - that she wanted her property and she wanted to leave.[334] He could not explain why it was not in his formal statement. He denied making it up.
5. In re-examination, Sesin attempted to strengthen his evidence about what they observed transpiring between Walker and Hamm when they came into the unit. He said that she looked like she was struggling to get past him and a little later improved on that by referring to Hamm and Walker "struggling with one another" and Hamm struggling to get free. In this, he was returning back to what he had said in his statement. He gave this evidence with the aid of his statement.

1. In the end, the highest that Carter and Sesin appeared able to put the matter in their evidence, without prompting, was that Donald Walker was holding his arms up and blocking Ms Hamm's path to the door if that was her wish. This is in substance dissimilar only in perception as to purpose from the evidence of Donald Walker, who stated that he did hold both arms outwards. He said this was a reflex action to what he referred to as the force coming in the door. He denied making any contact.[335] This occurred before he was pushed against the wall as the police came through the door very aggressively.
2. It can be said that Carter and Sesin together attempted to develop an account that inflated the drama of the situation when compared with what Sesin said to Pluim and what Carter said to Rodgers. They appear to have drafted that part of their formal statement together. Carter and Sesin reduced the drama of the occasion in their evidence in cross-examination. Sesin attempted to boost his account of the exchange between Carter, Walker and Hamm in his re-examination. Carter did not.
3. Again the unexplained failure to call Ms Hamm should be taken into account and adds strength to the argument that the picture Carter and Sesin tried to create should be rejected.
4. I note that defence counsel sought to rely on the fact that Donald Walker pleaded guilty to a charge of obstructing the police after the charges against him were withdrawn. I accept the submission of his counsel, however, that in the circumstances in which the plea was made and announced, no relevant admission was involved.

THE LEVEL OF VIOLENCE AND RESISTANCE OF DONALD WALKER TOWARDS CARTER

1. In the Patrol Duty Report of Sesin and Carter there is reference to conversations with Ms Hamm and Donald Walker, but no mention of any physical exchange.
2. In his formal statement, Carter said that he grabbed Walker and had a short scuffle with him, causing a picture that was on the wall to fall and break. He managed to place Walker against the wall. Sesin, in his formal statement said that Carter took hold of Donald Walker, that Donald Walker became aggressive and had a short scuffle with Constable Carter. He stated that this caused the picture on the wall to fall off and break the glass covering. Both described Donald Walker as very irrational in his behaviour and said that he began to abuse Hamm.
3. Carter, in evidence-in-chief, spoke of placing his hands on Donald Walker's shoulders and moving him up against the wall. Asked whether Donald Walker fully complied or resisted, he said he thought it was about middle of the road. After refreshing his memory from his statement, he referred to statements by Donald Walker about Ms Hamm being his girlfriend and asking why they were there. He said that at the same time Donald Walker was pushing him towards the door. He then was asked what Walker did in pushing him towards the door, and he alleged that he believed Donald Walker's hands were actually touching him on the chest. Later in cross-examination, he said that after referring to his statement, he remembered, although he had no recollection, Donald Walker trying to push him out the door. Asked about the force involved, he said it didn't have very much effect on him. This was not long after he came in the door. He accepted that he had placed Donald Walker, without any scuffle, against the wall, stating that that happened after he placed him against the wall. He was referred to a number of occasions where he had said he had placed Donald Walker against the wall. Later, he changed his evidence to say that Donald Walker tried to push him out the door after he had placed him on the wall, and that was when he placed his hands on his chest - to push him out the door after he was placed against the wall. He could not recall how hard he pushed and he could not recall whether he still held him against the wall as he pushed.
4. Sesin referred in evidence to a little bit of a scuffle between Walker and Carter, who had placed his hands on Walker's shoulders, asked him to move aside and there was then a little bit of a scuffle. Asked in cross-examination to explain further how the placing of Carter's hands on Walker led to a picture falling, he said there was a little bit of struggle which he described as Walker sort of shrugging Carter away, and he said he did not know if Carter or Walker went into the wall.
5. This is an example of what occurred elsewhere; under cross-examination when the issues were explored in any detail, the account that emerged was significantly weaker than the account that they had previously attempted to be conveyed and often inconsistent. At different times their accounts were not dissimilar to Donald Walker's account.
6. Again it is relevant that the defendants have failed to call Ms Hamm and provided no explanation.[336]

RECONSTRUCTION - ALLEGATION BY MS HAMM OF AN ASSAULT WITH A KNIFE

1. Sesin gave evidence that he took Ms Hamm into the kitchen and spoke with her. He said that during that conversation she told him that Donald Walker had threatened her with a knife. He gave evidence that the knife was on the island bench in the kitchen and he said he put it out of sight in the kitchen sink. This evidence accorded with his formal statement.
2. If true, this was an extremely serious matter. Sesin agreed it was a serious complaint and that was why it was in his formal statement. It was also obviously, important information for Sesin to pass on to Carter, for several reasons. He needed to alert him to the dangers of dealing with a man who had apparently attempted to assault Ms Hamm with a knife. Carter also needed to be aware of the existence of the knife in the kitchen. In addition, if accepted, Donald Walker had committed a criminal offence. This information also needed to be passed on to their superiors for their consideration. It was also highly relevant to the police case, because it would help to justify a belief on their part that they were dealing with a man who was highly dangerous and, so, would help to justify their subsequent actions.
3. Sesin, however, did not inform Carter before the other police arrived. After they arrived, he did not inform Carter, Pluim or Rodgers at the scene. It was not as if he did not have the opportunity to mention it. Pluim in fact squarely raised the issue with him in the following exchange towards the end of the Pluim tape.

"CONSTABLE SESIN: When we first came in, like, she was complaining and he was saying 'look, nothing's going on'.

CONSTABLE CARTER: We couldn't tell. I - when we came out ...

CONSTABLE SESIN: And he's, like, basically seized her property and locked it in the study and she wanted her property back, and he had the keys for the study, and then we've come in - he's unlocked the study and given part of her property back, but there was still some property missing. And then the fucking? mother's come in ..."

1. Leaving aside the example of another attempt by Sesin to blame Marcia Walker , here was the moment to mention that Ms Hamm had said that Donald Walker had threatened here with a kitchen knife.[337] If he had forgotten the conversation in all the excitement, this conversation should have triggered his memory.
2. The explanation given by Sesin for not telling Pluim - that he was not his sergeant - should be rejected. It was inconsistent with the fact that he and Carter in fact had talked to Pluim freely about what had occurred. The attempted explanation was plainly false. Pressed on the matter, Sesin strategically[338] stated that he could not recall now whether he told Carter about it. He also said there were too many things going on at that time.
3. Reference should also be made to the evidence of Carter and Sesin that in their conversations with Mrs Walker, they had said that when they had sorted out the bags they were going to go away. In evidence, they confirmed that they had no intention to follow up with Ms Hamm the allegation of the assault with a weapon. This was not satisfactorily explained.
4. There was no mention of the allegation in the Patrol Duty Return and they could not give a reason why that was so. Sesin claimed that he told Rodgers about it before Walker was interviewed - in fact, at Essex Road. Rodgers, however, said that Sesin did not tell him about the knife threat allegation.
5. Donald Walker was asked about threatening Ruth Hamm with a knife in his interview, which commenced in earnest at 5.26 a.m. and concluded at 6.11 a.m. How this came about is unclear. Ms Hamm had completed her statement at 3.27 a.m. The allegation may have come from her. The allegation was provided to Sergeant Rodgers before he interviewed Donald Walker. Thus, before Sesin finalised his own statement on 20 August 1993, he had ample opportunity to become aware of the allegation.
6. But whatever the source, I am satisfied that Sesin was not told in the kitchen by Ms Hamm that Donald Walker had threatened her with a knife and for him to say so was a dishonest reconstruction. Were any assistance needed to reach that conclusion, it may be found in the failure to call Ms Hamm without adequate explanation.[339]

DELIBERATE OMISSION - FAILURE TO MENTION SHIRT INCIDENT

1. It is common ground that Donald Walker was not wearing a shirt at the conclusion of the incident at Essex Road. This was something that distinguished Donald Walker from everyone else in the premises. Remarkably, Carter and Sesin claimed to be unable to say anything about this aspect - in particular whether Donald Walker was wearing his shirt when they arrived or not and, if he was, how it came to be removed during the incident.
2. The issue is of importance because Donald Walker's account is that Sesin grabbed the shirt as he, Donald Walker, was moving to assist his mother, who had been accidentally bumped by Ruth Hamm's bag as she was leaving the flat.
3. Whatever be the true situation, there is a blank in their statements and evidence about the absence of the shirt. Carter must have been aware of its absence on the night, because he mentioned the welts on Donald Walker's back to Sergeant Pluim. Shenton, Radford and Pluim gave evidence that they observed that Donald Walker was not wearing a shirt when they saw him at Essex Road. Bearing in mind that Carter and Sesin had much closer and longer contact with Donald Walker, and the fact that Donald Walker appeared to be the only person without a shirt, I do not accept the claim of Carter and Sesin that they do not now recall observing Walker without a shirt.
4. Carter in fact gave evidence in the Magistrates' Court that Sesin tried to "grab" Donald Walker to prevent him coming towards Carter and Marcia Walker. In the Magistrates' Court he had said that at that time, he thought Donald Walker did have a shirt on, but could not recall exactly. He said he could not recall giving that evidence. Asked if he believed it was correct he said it was. He said as he was sitting in the Supreme Court he could not remember whether Donald Walker was wearing a shirt or not, but he accepted his answer.
5. The issue of the wearing of the shirt when the police arrived was something also on which Ruth Hamm should have been able to shed some light. The unexplained failure to call her is again a relevant consideration.
6. If Donald Walker's account of events is correct, it provides an explanation why Carter and Sesin would not wish to acknowledge the existence of the shirt and its tearing. If the incident did occur, as he described;
   • it showed Sesin overreacting at a time when all that Donald Walker was seeking to do, on his account, was go to the aid of his mother,
   • it would also provide evidence that they had been made aware of the frailty of his mother and her lack of balance, and Donald Walker's concern about it prior to Carter approaching Mrs Walker and physically attempting to move her on,
   • it would also provide evidence to support Donald Walker's case that throughout the incident, the police were acting with excessive zeal,
   • it would also have provided a reason for calling for back-up and an opportunity for doing so - consistent with Rodgers' note of what he was told by Carter. That, however, would have conflicted with the stand-off story.[340]

1. Sergeant Pluim recorded an interview with Marcia Walker very shortly after the incident. She was in pain and nursing her dislocated shoulder. He was engaged in damage control and his aim was to secure admissions from Marcia Walker that what occurred had been her fault and that of her son.
2. After obtaining from her her date of birth and also that of Donald Walker, he asked her "Mrs Walker, what part did you take in the dispute?" Mrs Walker responded by talking about how she came in to see what was going on and stating that it was "the usual noise when she's around". Sergeant Pluim responded saying "No, I am just asking you. What part you took in the actual dispute." From the transcript it appears that Sergeant Pluim believed that she spoke of trying to stop something and he asked her "You tried to stop who? Who did you try to stop?" Her response was "I tried to stop the police from kicking my son in the head." He did not investigate the kicking allegation, but instead asked her how she tried to stop the police from doing that, and she replied by pushing into them and telling them to stop. He asked her if she struck the policeman with anything and she replied that she supposed she had done that with her walking stick. He then asked her if that was how the walking stick got broken, and she replied that the policeman took it and broke it. She then said "He was a large part of it. It needn't have happened Sergeant because ... that woman."
3. The following exchange then occurred in which Sergeant Pluim pursued his attempt to blame her for what happened, while ignoring the issues raised by Mrs Walker about the role played by Ms Hamm in the whole affair and her allegation that her son was being attacked by the police.

"SERGEANT PLUIM: Why did you involve yourself in their dispute?

MRS WALKER: Because the noise - they broke the door.

SERGEANT PLUIM: Well, why didn't you just let the police handle the matter? Why didn't you just let them settle the matter down rather than get involved yourself? ...

MRS WALKER: Because it worries me so much because I've seen her ... by experience ...

SERGEANT PLUIM: But do you think that by you becoming physically involved in a confrontation with the police you are assisting the situation at all?

MRS WALKER: No, but you actually see your son being attacked and you know what she is - she's pretty - she's - I think she's - I don't think she's right in the head.

SERGEANT PLUIM: At the time that you came into the unit ..."

1. Mrs Walker then asked Sgt Pluim several times to get her a drink of water, which he either put off or ignored. Among other things, she said that she needed the drink because she had trouble speaking. She attempted to tell him it was part of her disease. He replied "It's alright. Okay. You can't speak or you won't speak."
2. He then sought to get evidence from her about the demeanour of Donald Walker when she came into the premises. She said "he was just standing there and he was annoyed ... to see them pushing ... and he was talking". The following exchange then occurred:

"SERGEANT PLUIM: But you came in and - you came in and - you came in and had a physical confrontation with a policeman and your son was just standing there talking?

MRS WALKER: No, I wouldn't call it a confrontation.

SERGEANT PLUIM: You admitted you struck the police.

MRS WALKER: Yes. It was when they were pushing me to - either force me out or tell me to go or something and my son got upset.

SERGEANT PLUIM: But you - just let me get this clear - your son was standing there talking to the police.

SERGEANT PLUIM: Your son was standing there talking to the police. You came into the unit. There was no reason for you to become physically involved, was there?

MRS WALKER: Not until I saw the attack on my son but I'm not going to stand there with two men waving [waling?] waddies and a torch.

SERGEANT PLUIM: Why do you think they were doing that? Why were they doing that? Or was the confrontation already on when you came into the room and you don't really know what was going on.

MRS WALKER: No, they had a torch and the man with the - one of the - the one who was the ringleader and the trouble maker of the two lifted his hand and Donald thought he was about to strike me with the torch.

SERGEANT PLUIM: Why would he strike you with the torch?

MRS WALKER: - Well I don't know why he would. He pushed me."

1. He interrupted her several times, pushing his "confrontation" scenario while she tried to speak about the policeman and the torch and Donald seeing the torch. Having stopped her by saying "Well, just let me talk for a minute", the following exchange then occurred:

"SERGEANT PLUIM: It sounds to me like you might have come into the unit and there was a bit of a confrontation going on and that you've bought into it on behalf of your son, is that what happened?

MRS WALKER: I tried to calm the situation down and I know what that woman, the effect she has. She is standing there and I know the effect she has ...

SERGEANT PLUIM: Okay. Well let's just get things into perspective.

SERGEANT PLUIM: There actually was a confrontation of sorts when she came into the unit?

SERGEANT PLUIM: Said you came in and tried to calm the situation down.

MRS WALKER: Yes, when my son - pardon me - saw me being pushed and they said to me to go or to sit down or something and I can't turn quickly."

1. Sergeant Pluim ignored that response and said "Did you introduce yourself when you came to the unit? Did the police know who you were?" He then tried to get her to admit that she had inflamed or antagonised the situation. Again when he did not get the answers that he was wanting, he said to her that he was just trying to put things in perspective. He said that twice. Sergeant Pluim then attempted to get her to acknowledge that when she came to the unit there was a blue going on between Donald Walker and his girlfriend, or between the police and Donald Walker. She denied that that was happening at that stage. There were then statements made by Mrs Walker about Ruth Hamm, a distraction caused by the police searching in the house for the backpack and then Sergeant Pluim returned to the issue asking

"SERGEANT PLUIM: What caused the confrontation between your son and the police?

MRS WALKER: Because my son felt that they were pushing me and he thought when he saw the man with the torch arm up that he was going to push me with the torch or - or whatever.

SERGEANT PLUIM: All we've got to do ...

MRS WALKER: With the torch. The torch that [caused the ?] confrontation."

Instead of seeking further details, Sergeant Pluim went back onto the attack saying

"SERGEANT PLUIM: So, did you - did you burst into the unit or did you walk into the unit or what did you say when you came in?

MRS WALKER: No, I came in - I don't burst into places. I came in to see why the noise. I heard - the police had pushed the door in.

SERGEANT PLUIM: Well can I just ask what business it is of yours? I understand he's your son, but what actual business is it of yours to come in and involve yourself ...

MRS WALKER: I had ....

SERGEANT PLUIM: In the situation?

MRS WALKER: No idea who it was, whether they were burglars, whether ...

SERGEANT PLUIM: But it is your - is it your business?

MRS WALKER: I should get the ...

SERGEANT PLUIM: You knew the police had broken a door down because you just said that.

MRS WALKER: No I didn't, I just heard the door go.

SERGEANT PLUIM: Mm.

MRS WALKER: I didn't know they had."

1. Sergeant Pluim then pressed her by suggesting that she was changing her story. In fact, her earlier statement about the police breaking down the door was consistent with knowledge obtained after the event. He applied considerable pressure.

"SERGEANT PLUIM: It seems to me as though you are changing your story a bit Mrs Walker.

MRS WALKER: No I'm not.

SERGEANT PLUIM: I'm trying to get to the truth of it.

MRS WALKER: I'm not changing anything. I am just ...

SERGEANT PLUIM: I am trying to get to the truth of the matter.

MRS WALKER: Well, I'm telling you.

SERGEANT PLUIM: One minute you tell me ...

MRS WALKER: I came over because I heard that noise."

1. Throughout the interview, Sgt Pluim tried to pressure Mrs Walker into taking the blame for what had occurred, to herself and her son. As will be seen, when he later spoke with Carter and Sesin, he gave them the lead to do likewise.
2. In relation to Mrs Walker, Pluim, Carter and Sesin at different times also sought to create the impression that Mrs Walker was a dangerous person who could not be controlled and who had played a major role in causing the ultimate events to occur. This process began at the conclusion of Pluim's interview with Mrs Walker and is recorded in the tape recording made by Sergeant Pluim. The tape recording made by Sergeant Pluim records the following exchange with Carter and Sesin:

CONSTABLE SESIN: If it wasn't for her, mate, it would have been alright.

CONSTABLE SESIN: We would have been right. She's come in with a cane and started trying to hit ... with the cane. And then I don't know how Carts got rid of the cane. ...

CONSTABLE CARTER: Yeah. Oh mate. I turned around, she hit me with the cane - I turned around, grabbed the cane and she resisted. I pushed her down on the table. I tried to be as gentle as possible without trying to hurt her, I tried to get her away from me as much as I could. I held the cane saying "Let go of the cane." And Ses and the bloke are blueing and I've just hit the cane - she wouldn't let it go so I just clouted the cane with me baton. I broke the cane with me baton and that's how it broke.

SERGEANT PLUIM: All right, she still had hold of it at the time?

CONSTABLE CARTER: She still had the broken - the small bit and I tossed the cane over here, that's where we found the big bit of the cane - that's when I flew back over and started belting the bloke with me baton again. What could we do."

1. There was some more conversation and then the following statement by Pluim:

"SERGEANT PLUIM: I have spoken to her and I have had the tape running. And you can hear what she's been saying. She's not making any sense at all, she's obviously lying to protect her son. There's no doubt at all she's come - coming in not knowing what's going on and wielding the stick. Absolutely no doubt at all."

REVIEW OF STATEMENTS AND EVIDENCE OF CARTER, SESIN AND OTHERS ABOUT THE CENTRAL EVENT

1. The defence seeks a finding that the call made by Carter to D24 was a "Code 9" call in the strict sense, namely, that police were in trouble and needing immediate assistance. The plaintiffs' case is that the call was at most a request for backup and that the Code 9 evidence was part of an attempted cover up or at least a sham.
2. Rodgers' notes, taken at the hospital, record Carter saying that he "called 4 backup" shortly before the violence started. In their patrol duty return, Carter and Sesin did not record a "Code 9" call but simply a "request for backup". Further, they did not use the expression "Code 9" in their formal statements. Carter recorded that he radioed "for some urgent assistance" and Sesin recorded Carter "radioed for assistance".
3. In his evidence, however, Carter said he radioed "Code 9". Likewise, Sesin departed from his statement in his evidence, saying that Carter requested urgent assistance "Code 9".
4. When the call was made, if they were in the desperate situation in which they now claim they were, it would be understandable that they would have made a "Code 9" call. But, if they had, it is inconceivable that they would not have described the call as a "Code 9" when speaking to Rodgers, or in their Patrol Duty Report, or in their formal statements. Their earlier descriptions should be accepted, and are consistent with the earlier statement of Carter, recorded by Rodgers, which placed the call at the time before violent events even began, a time when they thought they were having trouble controlling and sorting out the situation. Their sworn evidence that it was a Code 9 call was a dishonest attempt to strengthen the defence case.
5. The evidence of the other officers was equally unconvincing. Radford, among the many things he did not recall, said in evidence-in-chief that he did not recall hearing a Code 9 call. In cross-examination he said he believed there was a Code 9 call, which meant that police needed assistance. He also conceded, however, the expression "Code 9" was not always used with precision. I note also that Radford, in his police statement, recorded that they had received information about police "in need of urgent assistance". Shenton and Howlett noted the words "Code 9" in the running sheets. Shenton said that he could not recall if he heard the words "Code 9", but that it was unlikely that he would have written those words if he had not heard them. He later acknowledged that in his experience, "Code 9" was not always used with precision.
6. Sergeant Rodgers, who was with Howlett, said he also heard a Code 9 call. Against that, Rodgers' notes simply record Carter telling him "called 4 backup". Sergeant Rodgers said that, as he recalled it, Carter said that they had called for backup. He said that "backup" does not necessarily mean that they are in fact in trouble at the time.
7. The time for the "Code 9" entry in his Patrol Duty Report appears to have been changed to 0030 and only one call for help is recorded. His evidence on this issue was most unsatisfactory. At no time did any other police witness, most of whom were in a position to hear both calls, attest to two calls for assistance and certainly it was never part of Carter and Sesin's account to him at the Box Hill Hospital.
8. Sergeant Rodgers went further. He alone gave evidence of two calls for help - the first a back up call and the second a Code 9. He relied on notes that he said he "would have" prepared from D24 cards, that there was a call for backup at 0031 and an ambulance call at 0036, and a Code 9 at 0035. The code 9 information was noted on the last page of the notes he made of his conversation with Carter. He gave evidence that the information was obtained from D24. He had to acknowledge that the numbers appeared to have been overwritten. This information did not appear in the sheet of paper in which he recorded the call information from D24.
9. Sergeant Pluim in cross-examination said that he received "a radio call for police in trouble" which he put as being a Code 9 call. Although Pluim gave evidence that he drove to the scene with lights and sirens on car, Carter's evidence was that he was aware police had arrived when he heard the throb of a V8 engine. Sesin gave evidence of hearing them arrive.
10. Plainly a call for help was made. That the other officers asserted that it was a "Code 9" reflected their imprecision or a desire to assist the defence or both. Critically, it was not used by Carter when he made his call and both Carter and Sesin had every reason to want to describe the call as a Code 9 in their statements and records, if that was what it was. They did not do so. There was one call. It was a backup call not a Code 9 call.

1. Sesin and Carter gave evidence that shortly prior to Carter making the call for help, they were holding Donald Walker on the floor. Each of them said he had a knee in his back, using the weight of their bodies to pin him to the ground. Yet each said that he could not say whether the other had a knee in Donald Walker's back. Sesin also gave evidence that he was holding Donald Walker's head by grasping his hair and pushing his face into the carpet. But their evidence was that they were so exhausted by the struggle, and Donald Walker had proved so violent and difficult, that they were not able to handcuff him without assistance. Having reached that point, they said in evidence that Carter got up and called for assistance and, as he was doing that, or shortly afterwards, Sesin also abandoned his position and stood up.
2. Carter in his evidence said that Donald Walker was handcuffed after the other police arrived and that it took all of them to get him to the ground and handcuff him. Later, in cross-examination, he said he could not recall being involved in the handcuffing. Sesin in his evidence said that he did not participate in the handcuffing and could not recall whether Carter was involved in it.
3. The importance of this evidence to the defence case is that, if accepted, it is testimony to the extreme and continued violence of Donald Walker in the struggle which they alleged occurred, violence that had exhausted them but plainly, and strangely, had not exhausted Donald Walker. Such violence by Donald Walker would have justified their actions, whatever may have been the situation in relation to the original restraint of Walker by Sesin. Such violence would also lend some credibility to their evidence about his alleged aggression and violence prior to the headlock being applied by Sesin. The sequence, including the alleged stand-off, also fitted better the scenario of the handcuffing not occurring until a little time after the other police arrived and a number of them taking part in the handcuffing - again testimony to the difficulty of controlling the violent Donald Walker.
4. Curiously, Carter's evidence accorded with Sesin's statement, but not his own formal statement or earlier statements, including his statement to Rodgers (see below). Sesin's evidence accorded with his formal statement on this aspect. But if Sergeant Rodgers' evidence is accepted, then Sesin must have changed his account on this aspect also. It is necessary to examine what Carter said to Sergeants Pluim and Rodgers. It is also relevant to examine his formal statement.

1. In Carter's conversation with Sergeant Pluim, it is not entirely clear from what he said when it was he made the call, except that he said they were "just losing control of it". Exhaustion was not mentioned. This comment was more consistent with his account to Rodgers than his evidence.

1. In the notes of his conversation with Rodgers, Carter is recorded as saying that he made the back-up call before any violent struggle occurred. He is recorded as referring to the torch shining aspect and a statement from Donald Walker "Don't hit my mother with a torch."[341] But the notes then record that he told Mrs Walker again to go outside and it is then recorded "All told to sit down and talk about this". The notes then recorded that he said to Rodgers that Donald Walker was still aggressive and that he called for back-up. Following that, the notes record Carter saying that Donald Walker started struggling with Sesin, and at the same time he, Carter, was assisting Mrs Walker around the corner to a seat.
2. Thus, the notes record that he made the back-up call before the alleged violent event erupted and before any stage of exhaustion had been reached, and that he did so because of concerns about controlling the situation that was facing them. There is also no mention of exhaustion in Rodgers'. It should be noted, however, that the notes record that another police car arrived and that Donald Walker was "handcuffed by the members". The "members" were not identified. It may have been that he was handcuffed after other police arrived. That was in fact Donald Walker's recollection of the situation when he was handcuffed, although according to his account he was handcuffed by Carter and Sesin.

1. Turning to Carter's formal statement, the sequence changes. In his statement, he places the call for back-up shortly after Mrs Walker's fall and complaint that she had broken her arm, and immediately before his resumption of his assistance to Sesin in gaining control of Donald Walker by belting him - that is, after the time he mentioned to Rogers, but before he and Sesin were too exhausted to continue to restrain Donald Walker - and so prior to the time he alleged in his evidence. In addition, in his formal statement, Carter does not advance exhaustion as the reason why they failed to handcuff Donald Walker. He simply states that he and Sesin couldn't handcuff Donald Walker, so they decided to let him up and wait for assistance. It is simply noted later in the statement as a fact that he and Sesin were exhausted from the struggle. He states there that, with the assistance of the other police, there was a short struggle and Donald Walker was wrestled to the ground and handcuffed. That description also appears to have him and Sesin involved in the handcuffing.
2. Thus the scenario advanced by Carter in his evidence of extreme violence from Donald Walker is in difficulty, because the timing and sequence of events now relied upon by him in his sworn evidence appears to be a later invention.

1. Sesin's account is plainly more beneficial to Carter. If it was the truth, there is no satisfactory explanation for Carter failing to mention it in any of his earlier statements. There is also no explanation as to how he came to change his account. But it is likely that Carter's earlier statements are closer to the truth - particularly his account to Rogers. There were opportunities for Carter to learn of Sesin's sequence before he gave evidence. He, however, as the person who made the call, was more likely to have an accurate recall of the sequence.
2. I note that according to Carter's and Sesin's evidence, there was some cooperation between them in the drafting of their formal statements. Sesin said they discussed their statements for the purpose of corroborating each other. He also said that he made his statement at his police station, Ashburton, on the Sunday and completed it during the week. He said he had access to Carter's statement and corroborated with Carter. He said they would have liaised over the telephone. At the same time he said he did not believe he had read Carter's statement and did not recall seeing any part of it. Carter said he did not recall reading Sesin's statement. He gave evidence, however, that they sat in a room with computers and typed up their statements at the same time. He couldn't recall whether they finished them together. He said they did check things with each other.
3. An examination of the whole of their statements reveals a combination of almost identical passages but, at the same time, quite different passages. But for other considerations, such differences in their formal statements might strengthen the probative value of their evidence. The likely explanations for the differences are that they didn't both observe all events and while started preparing their drafts together, they did not their drafts or finalise together.
4. The history of the various statements points to the conclusion that the scenario of extreme violence resulting in their exhaustion, a stand-off, and the phone call for assistance is a subsequent invention. There is a further reason for taking that view. The stand-off scenario is too implausible to be accepted.

1. It is true that Carter and Sesin were significantly shorter than Donald Walker, who was 6-feet 2 inches tall. Carter and Sesin, however, were approximately 20 years younger than Donald Walker and fit. According to his evidence, Carter had only recently ceased playing competitive football and described himself, despite his alleged back problem, as "pretty thin and fit back then". Sesin, at the time, was a fit distance runner. The photographs of Donald Walker's torso do not suggest a well muscled and strong physique. Carter and Sesin were supposedly trained to arrest people and there were two of them. To accept their account it is necessary to accept that:
   • These two fit young men could have been totally exhausted by a fight that lasted less than five minutes, but the other person was still full of fight and fighting vigorously;
   • Donald Walker, after being beaten by Carter and Sesin with batons applied with full force and being badly injured in the way he was, could have, or would have, sustained a violent struggle for any length of time. I note that Carter is recorded in the Pluim tape as saying that Donald Walker had "a crook back because I hit him with the bat ...".
   • Carter and Sesin not only gave up but, to do so, they sacrificed the position where they were in control, with Donald Walker facedown on the floor and, according to their evidence, each of them was on top of him with a knee in his back and one of them holding his hair and forcing his head to the floor;
   • Having got Donald Walker into that position they were not able to handcuff him however exhausted they were.
2. While there is no entirely satisfactory evidence of the length of time of the alleged struggle, it is unlikely that it continued for any length of time. It was likely to have been a few minutes at most and probably less than five minutes.[342] Sesin, on either account, was only involved initially in applying the headlock and in using his baton to strike Donald Walker as hard as he could over the very short period of the exchange in which he and Donald Walker were initially engaged before Donald Walker was on the ground. After Donald Walker was on the ground, it seems that the headlock ceased to be applied and, once he was on the ground, they gained a position of control. Carter's main activity appears to have been that of striking Donald Walker with his baton. I am satisfied that one of them did drop on Walker's back with his knee; this was the probable cause of the other rib fracture. I have come to the conclusion that it was probably Carter who did that, he being the initiator of violent acts that night, not Sesin and more likely to be standing at the time.
3. It is common ground, it would seem, that the point was reached in the exchange between them and Donald Walker where he was face down on the ground and, according to Carter and Sesin, each had a knee in his back through which their weight was applied to keep him on the ground, and one of them also had his head held by the hair, which enabled the officer in that situation to cause considerable pain to Donald Walker if he did not comply. He said his head was pulled back, Sesin said it was pushed down. He was badly bruised on most parts of his body and had two fractured ribs. He could not move and if he did not cooperate, Sesin was in a position to inflict considerable pain because he held his head. They were also in a position to inflict considerable pain by grabbing either arm and pulling it up behind his back. It would be highly improbable that in that situation, however exhausted they were, that they would not have been able to place the handcuffs on his wrists. It is also highly improbable that, having got him into that position, Carter would get up and abandon his position to radio for help and that Sesin would abandon his position. They had Donald Walker pinned to the ground in a situation where they could be confident of remaining in control with little effort. Why abandon the situation - particularly if he had been very violent?

1. As to the evidence of other officers, the defence relies on Radford's evidence, which purports to confirm the stand-off story. His evidence, however, was singularly unimpressive. He confirmed his statement, but could not deal with anything that was not covered by the statement. He used the same broad expressions about aggression and violence as were used by Carter and Sesin. Pressed for details, he tended to rely upon the response that he did not recall - or qualify his answers by using expressions such as "not to my recollection".[343]
2. The other police officer who was in the position to give evidence about a standoff was Sergeant Pluim. Having regard to his blinkered and biased attitude to the matter, his failure to support the account of a stand-off is significant - he claimed that Donald Walker and Carter or Sesin were still wrestling. As to whether and to what extent any of the details of his alleged observations are accurate, that is another matter. But one thing is clear, his evidence is that, when he arrived, there was no stand-off. Sergeant Pluim was either not involved in the stand-off reconstruction or, if the attempt was made to involve him, was not prepared to cooperate. The former seems the more likely explanation.
3. As to the state of Carter and Sesin, Howlett described Carter as puffing and, as to Sesin, observed only that he had blood on his face. Rodgers described them as extremely tired, almost exhausted, and sweating. He commented:

"Basically, I would say they had a bit of an adrenalin rush and that these things were affecting them. As I said, they were excitable and it appeared near exhausted and out of breath."

1. Pluim described them as exhausted. Radford described them as out of breath and appearing as if they had been involved in a serious confrontation.

1. Accepting that they were excited, had experienced an adrenalin rush and were near exhausted, an injured Donald Walker would not have had more energy left than either officer, let alone the two of them combined. But they also had the advantage that they had not been badly beaten, including to the head and did not have broken ribs.
2. I am satisfied that the stand-off scenario is another invention.

1. Set out below are the salient parts of the formal statements of Carter and Sesin about the central events. I have referred in Appendix E above (Analysis of evidence of Carter and Sesin and other police of preliminary events on 15 August 1993) to their evidence about the extent of the co-operation between them in the drafting of their formal statements. As noted above, an examination of the whole of their statements reveals a combination of almost identical but, at the same time, quite different passages - as occurs particularly in those set out below.

After referring to the torch incident and exchange of statements he wrote "He then became extremely violent and struck Constable Sesin in the face with a clenched fist, I think it landed on the left hand side of the face. I immediately began to struggle with the defendant also. I screamed at him, 'Let go of my partner'. As I said this I drew my baton and the defendant looked me in the eyes and said 'Fuckin' hit me mate, come on, fuckin' hit me with your baton and you're dead. I'm going to get you for breaking the door anyway'. He refused to obey my command and continued to struggle violently with Constable Sesin. I then struck him to the side of his stomach, as I did this I told him to get down on the ground. I hit him as hard as a I could. He refused to get down and Constable Sesin and the defendant kept struggling violently. I observed the defendant jam two of his fingers into Constable Sesin's mouth and begin to pull his mouth around, I again said to the defendant 'Let go of my partner'. He refused to do this, so I struck him with my baton repeatedly. While doing this I was telling him 'stop fighting and get down on the ground'. I struck him four times in the side of his stomach and I struck him twice on the upper arms. This appeared to have little effect on the defendant.

The defendant and Constable Sesin when they were struggling were moving all over the room,. During the struggle Constable Sesin and myself wrestled the defendant to the ground. Constable Sesin had placed the defendant in a headlock and was pinning the defendant to the ground, I was continually telling the defendant to let go of Constable Sesin and place his hands behind his back. The defendant refused to let go of Constable Sesin and again placed his fingers into Sesin's mouth. I again told the defendant to let go of Constable Sesin and stop struggling or he would be hit with a baton again."

He then referred to Mrs Walker complaining that she had suffered a broken arm which he described as due to being "knocked over in the struggle."

He described going to her aid. Among other things, he said to her that if her son had done what they asked and she had also then "none of it would have happened." He resumed his account.

"I then approached the defendant as I wanted to arrest him for assault on both Constable Sesin and myself. But before doing so I radioed for some urgent assistance because the defendant was becoming violent again and I was concerned for my safety and Constable Sesin. I remember hearing a number of units come up to say they would assist. The defendant was still struggling violently with Constable Sesin so I got behind Constable Sesin and demanded that the defendant stop fighting us, as I would not hesitate to hit him again with my baton. I told the defendant again to stop struggling or I would hit him again, he refused to stop struggling so I raised my baton into the loaded position."

He then described Mrs Walker intervening again in the incident. After dealing with her interference, he then said

"I then again returned to the defendant where he was still struggling with Constable Sesin and demanded him to stop struggling or I would strike him with a baton again. He refused to stop struggling so I struck him with the baton twice, both times saying stay down and stop fighting. I hit him on the upper right arm both times and I hit him as hard as I could.

After I struck the defendant I placed my knee on the defendant's back and attempted to pull his arms behind his back so he could be handcuffed and restrained to prevent any further injuries to myself and Constable Sesin."

"that it was decided to let him get up and we would have to wait for backup." Once the defendant got up he was obviously distressed and was irrational. He threatened both Constable Sesin and myself again."

A short time later, he heard a car pull up. He went on to describe subsequent events.

"I then observed a Sergeant and three Constables enter the room. Both C/SESIN and I were exhausted from the struggle and I was beginning to feel very dizzy from the blow to my head which as a result I had a rather large lump beginning to form.

I then had a short conversation with the Sergeant and the Constables. I told them we needed assistance to arrest Mr Walker as he had assaulted both of us.[344]

With the extra assistance there was a short struggle and the defendant was wrestled to the ground and handcuffed."

Immediately after referring to the torch shining in Mrs Walker's face and an exchange of statements, Sesin said

"The defendant became very aggressive and violent. Constable Carter and I attempted to subdue the defendant. I continually demanded to the defendant to calm down. There was no reaction to my demand. I attempted to subdue the defendant by forcing him to the ground. I was having great difficulty doing this... I was trying with all my strength to restrain the defendant. Constable Carter and myself were unable to do so. I had the defendant in a headlock with my left arm. I was telling him to get down. He was not cooperating, he was still putting up a struggle. Whilst I had him in a headlock I struck him numerous times in the legs with my baton. I hit him as hard as I could. There was no reaction. Constable Carter said 'Get down'. As Constable Carter repeatedly stated this demand he struck the defendant a few times with his baton.

Whilst this struggle was occurring the defendant, on two separate occasions, forced his finger into my mouth and attempted to pull my mouth to the right side of my face. I could feel the pain on the right side of my face while he was doing this. At some stage during the struggle the defendant struck me with a clenched fist to the face. This caused my nose to bleed. I could feel pain in my nose after he struck me. After some time I managed to trip the defendant over onto the floor. I held the defendant down on the floor by holding on to his hair and forcing my knee into his back. Constable Carter and I were unable to place the handcuffs on the defendant."

Sesin then states "while I was in this position Constable Carter radioed for assistance. At this stage I was completely exhausted. I noticed that the defendant's mother was sitting on the floor in the lounge room approximately 1 ½ metres from where I was holding the defendant. I was fatigued and I knew that I wouldn't be able to hold the defendant on the floor. I got off the defendant and tried the stand-off approach. Constable Carter attempted to assist the defendant's mother off the floor. The defendant was still in a very aggressive manner. A short time later the Box Hill divisional van attended. I informed them of what was going on. Shortly after Nunawading TOG Unit arrived.

Once the assistance arrived we restrained the defendant. It took five police members to restrain and handcuff the defendant. The defendant was left lying face down on the floor of (sic) some time. A short time later an ambulance unit arrived and attended to myself, Constable Carter and the defendants mother. The defendants mother was conveyed to the Box Hill Hospital via the ambulance.

1. It is a fair summation to say that in their formal statements Carter and Sesin asserted a violent struggle initiated by Donald Walker, continued by him despite the repeated requests to "let go", "to stop fighting", "to get down" and repeated warnings before resuming the beatings, one of which went on for some time. During the whole course of the incident, they describe a situation in which they were in danger because of Donald Walker's violence. They attempted to maintain that picture in their evidence, but failed. In addition, Carter's accounts in his statements and evidence differed from Sesin's and it will be seen that the evidence of each was inconsistent with their respective statements.[345]

INCONSISTENCIES IN CARTER AND SESIN'S STATEMENTS AND EVIDENCE

1. There are several examples. They include the following.

1. Carter claimed in his statement that Donald Walker initiated the confrontation with a punch to Sesin's face, after which Carter became involved in the struggle. Sesin, in his statement, records a punch not at the outset, but well into the physical struggle and after the headlock was used. Their evidence was similarly different.[346]

1. In his statement, Carter did not refer to a headlock at the outset. Carter was very uncertain about the headlock in his evidence. In his Magistrates Court evidence, he described them "chesting" each other at the time when he struck Donald Walker.
2. Turning to Sesin, in his statement he also did not refer to the headlock at the outset. He referred to early aggression and violence which he and Carter had attempted to subdue, and his attempting to force Donald Walker to the ground before any headlock was applied. In his evidence, however, the headlock was the first thing that occurred after Donald Walker lunged forward in the direction of him and his mother, and neither Sesin nor Carter were involved in attempting to subdue Donald Walker before the headlock was applied. So the assertion of antecedent violence, too, appeared to have been abandoned by Sesin. The hyperbole in the statement could not be substantiated in the witness box. I note Donald Walker's evidence was that the first physical act was the headlock by Sesin. Thus, to that extent, he and Sesin are in agreement.

1. In his evidence, Sesin did not suggest that Donald Walker applied a headlock or otherwise held on to him. When pressed to describe the nature of the struggle put up by Donald Walker, Sesin could not point to any physical action other than the fingers in the mouth referred to in his statement and that of Carter, and a random blow which made Sesin's nose bleed, made by Donald Walker as he tried to get out of the headlock. He conceded, as appears from his statement, that he had struck Donald Walker with the baton before being struck in the face himself, or having fingers placed in his mouth. He said that that began when they first "locked horns". He immediately changed his evidence, however, to say they all happened at the same time. He also gave evidence that he tried to punch Donald Walker in the testicles, something he stated in the Pluim tape but not his formal statement.
2. Carter, however, in his statement and his evidence claimed to have repeatedly demanded of Donald Walker that he "let go" of Sesin. He could not substantiate in his evidence that Walker was holding Sesin. He accepted that, in the Magistrates' Court hearing, he had asserted that Donald Walker and Sesin held each other in headlocks when both were on the floor, struggling. He also acknowledged subsequently that Donald Walker did not have hold of Sesin and did not have him in a headlock. Cross-examined about his evidence before the Magistrates' Court he said, as he had said in a number of instances, that he accepted that he said what was recorded, that he believed it was true at the time, but that he now with the passage of time, could not recall. Notwithstanding those facts, he had maintained in his evidence in chief, in the present case, that he repeatedly told Donald Walker to let go of Sesin. He was either lying about that or, if he was making that demand, he plainly wasn't thinking and, if that was his reason for beating Donald Walker, it had no foundation. On Sesin's and Donald Walker's evidence, only for a brief initial period might it be said that Donald Walker did hold Sesin in the sense that he had fingers inside his mouth and he was using that "hold" to try to apply pressure to Sesin's head and face.

1. In his evidence, Carter also changed his original account of his initial blows to one more favourable to himself, consistently with the attempt to demonstrate Donald Walker's violence and justify his own actions.
2. In talking to Pluim on the night, his description was simple and direct:

"and that's how he got the welt marks on his back, I just started belting into him with the baton telling him to get down".

1. In his formal statement, he stated that he struck him to the side of the stomach four times and twice on the upper arms. He said nothing about aiming at the arms and missing. In neither statement was there any suggestion that he approached the task with any thought or precision.
2. In his evidence he said that he aimed his baton at Donald Walker's arms but missed them and struck him to the side of his stomach, the problem being that Donald Walker was moving vigorously while he violently struggled.

CARTER AND SESIN - THE REASONS FOR THEIR DIFFICULTIES

1. I have considered whether Carter and Sesin's differing and inconsistent accounts arise from the effect of time on their memory. I have concluded that while that would have caused some difficulties, it does not explain the discrepancies. Their problem was that their previous statements were inventions and their inventions did not match the realities. I refer in particular to the realities revealed by the injuries caused and the reality of the limits and opportunities for Donald Walker while in the headlock.

(a) Comparison of their accounts and the injuries

To recapitulate, Donald Walker caused no injuries to Carter. The only injuries he caused to Sesin were those to his face. He caused no other injuries. Such injuries as Donald Walker inflicted were consistent with someone trying to break out of a headlock with one arm free. He was wanting, as he said, to give assistance to his mother. The injuries to Sesin were not those inflicted by someone engaged in a prolonged violent struggle. The only other injuries suffered by Sesin were inflicted by Carter, who struck Sesin on both arms at least once - as he admitted to Pluim. Sesin described himself as holding Walker in a headlock using both arms, the right being used to lock the headlock in place. Sesin conceded that Carter struck his left upper arm. No explanation was proffered by Carter or Sesin and the only satisfactory explanation for the blows to Sesin's arms is that Carter was seeking to strike Donald Walker on the head while held by Sesin in a headlock - something he denies. They either represent missed blows to the head or blows to the head of Donald Walker which also involved blows to the arms of Sesin. I am also satisfied that Donald Walker early on in the exchange was on the floor and being beaten by both officers, particularly Carter. I refer in particular to what Carter said to Pluim and Carter's evidence.

(b) The headlock and failure of Donald Walker to use limited opportunities for violence

The statements do not describe the headlock position, but Sesin and Carter gave evidence by way of demonstration, which showed that Sesin had used his left arm to place the headlock and it had resulted in Walker being bent over with his right shoulder placed up against the left hand side of Sesin's body. It is unclear whether his right arm was behind Sesin's body or in front. Either way, the demonstration showed that the ability to use the right arm for any offensive purpose would have been very limited and it was the left arm that had freedom of movement. Thus the headlock position limited the physical action that Donald Walker could have taken if he was seriously wanting to physically attack Sesin, let alone Carter.

But there were other avenues for such violence. It is common ground that his left arm and hand were used in approximately the way described by the constables and some scratches were caused to Sesin's face, as was a nose bleed and the damage to the inside of the mouth. But it is clear that there was no other form of physical action taken by Donald Walker. If he had wished to engage in the sort of violent and aggressive conduct that the constables have tried to portray, there was much he could have tried. An obvious option was to throw punches using his left arm to the front of Sesin's body - for example to the stomach or below, for example the testicles (as Sesin claimed to have attempted on Donald Walker). His legs were not restrained and would have been available to kick or stamp or knee Sesin in various parts of his body. There was no evidence that this occurred. When he was released from the headlock he would, if he had been struggling and fighting violently, had ample opportunity to cause damage to Carter and Sesin.

1. Donald Walker did not engage in a violent struggle with Sesin and Carter, let alone a prolonged one. At most he tried to get out of the headlock and tried to make his way to his mother to help her. He continued to try to go to his mother notwithstanding the beating he received. Apart from the initial injuries caused by his flailing left hand, he did not cause any injury thereafter to Sesin. He did not lay a hand on Carter.
2. Carter and Sesin's problem was that they were trying in their statements and evidence to describe an event the details of which they had largely invented.

ASSESSMENT OF DEFENCE EVIDENCE - CAUSES OF THE DISARRAY

ENCOURAGEMENT BY COLLEAGUES TO BLAME THE WALKERS

1. Notwithstanding the obvious disparity of the injuries and the fact that an obviously frail senior citizen not only appeared to have a broken arm but her walking stick had been smashed, no one in a senior position to Carter and Sesin attempted an objective assessment of what had happened. On the contrary, the police officers appear to have accepted what Carter and Sesin said without question and focused on supporting them.
2. One senior officer did much more than give them support. I refer to Sergeant Pluim. He was the first senior officer to arrive. His secret tape recording of his conversations with Mrs Walker and later, with Carter and Sesin, are revealing.
3. He demonstrated on the tape recorded interviews that he was not, as he claimed in evidence, attempting to get "a true account of what was going on" or to "provide the best possible evidence". The opposite was the case. He was a man on a mission. As he conceded in evidence, he was concerned that there might be an Ethical Standards Department inquiry. This concern was hardly surprising. The recording he made demonstrates that his objectives were damage control and the exoneration of the police officers by blaming the Walkers. He attempted to pre-empt any objective enquiry. He did not attempt to explore Marcia Walker's allegations. Rather, he ignored her injured condition and, throughout their exchange, he pressured and interrupted her in his attempt to get her to make statements which implicated her and her son and exonerated the police. He also encouraged Carter and Sesin to blame Donald and Marcia Walker and encouraged them to think that they were safe.[347] In particular, he rejected out of hand Marcia Walker's account without any proper basis, and accepted, and encouraged, Carter's and Sesin's assertions that Marcia Walker was to blame for what had occurred, and so gave encouragement to Carter and Sesin to continue to blame Marcia Walker.
4. At one point, Pluim said "she's out of her tree" to which Carter responded "...she's a lunatic".[348] It is, therefore, interesting to observe that in their statements, there was no reference to lunatic or dramatic behaviour on the part of Mrs Walker when she entered the premises. In virtually identical language, Carter and Sesin's statements describe an elderly female entering the premises walking using a walking stick and saying to Ms Hamm "haven't you caused enough trouble already". Their statements then describe Mrs Walker as approaching them stating that she was Donald Walker's mother, that they would be able to sort this out and that the police could leave. There was reference to further conversation and in both statements it is recorded that she was verbally abusive towards Ms Hamm. There was nothing "lunatic" in the behaviour so described. An obvious explanation was that, faced with the discipline of having to write a statement, and having calmed down from the excited state they had been in, what they said was much closer to the reality.
5. Carter, to his credit, when cross-examined about the "lunatic" statement, expressed regret about it, saying that he wasn't happy that he used that word. He explained what he had said as being said in the heat of the moment, when he was upset. Asked what he meant by the heat of the moment, he said "the whole thing". Counsel for the Walkers put to him that what had happened was that he had suffered "white line fever" starting at the outset when he broke the door down through to the end - an allegation he denied.
6. Sesin on the other hand sought to improve upon his statement and changed his evidence. In evidence-in-chief he initially described Mrs Walker as

"...walking with a walking stick and a torch and she was carrying on, saying 'what's going on here? This is my son. He is a good boy. He doesn't do anything wrong...'"

1. Shortly afterwards, however, he described her arrival in the following terms

"She walked in with a walking stick and a torch and she was waving the walking stick and the torch around as she was talking in a frantic manner."

1. He went on to assert that he saw that torch flash across her face. In cross-examination he said that he did not think that she was using the walking stick to walk with - although that was what he had said in his statement and his earlier evidence. He could not recall which hand she had it in but he recalled her waving it around with the torch in the other hand.[349] He again repeated that she walked in through the door with the torch and the stick "waving it around going 'what's going on here?'". Later he was asked to demonstrate what she was doing. He held the walking stick well down the shaft and gesticulated with it backwards and forwards and the torch was moved in the same motion. Sesin described it as

"It's like when an Italian talks with her hands. She had the stick in one hand and the torch in the other..."

1. This was not put to Donald Walker. Carter did not give evidence about it.[350] Having regard to the state of her health, the probabilities were that she was unlikely to wave the walking stick around, let alone wave both hands around. This evidence was another invention by Sesin.
2. Sergeant Pluim in his statement attempted to assert that when he arrived, among other things, Mrs Walker was very vocal and constantly abusing the police and appearing to "be deliberately trying to inflame the situation". That comment was repeated.[351] In cross-examination he could not recall any detail of these matters. He did, however, state that he regarded her query of police who were searching for the other bag as an inflammatory act. Asked who she was going to inflame he said he thought probably Donald Walker, who at that stage was handcuffed and not in a position to do anything if inflamed. The recording demonstrates that she in fact urged her son, Donald Walker, not to be provoked.
3. The picture Carter and Sesin, encouraged by Pluim, had tried to create is clearly inconsistent with the person in the interview. She was dignified, courteous, measured, restrained and remarkably patient.

ATMOSPHERE OF HOSTILITY AND CONTEMPT TOWARDS THE WALKERS

1. At Essex Road, police looked after Carter and Sesin but treated Donald Walker and Mrs Walker with contempt.
2. It might be thought that the calling of the ambulance for Mrs Walker contradicts that proposition. But when the ambulance arrived, its officers were asked by the police to look first at Carter and Sesin. It was only after that had been done, that they were asked to look at Mrs Walker who plainly, as is acknowledged, was complaining of a broken arm. She in fact had a dislocated shoulder and was in pain.
3. As to Donald Walker no thought appears to have been given to his physical state, let alone to having him examined, even though Sergeant Pluim, for example, after conversation with Carter and Sesin, knew that he had received a beating from them. For example, Constable Carter is recorded as saying to Sergeant Pluim:

"And that's how he got the welt marks on his back because I just started belting into him with the bat telling him to get down."

1. In addition, he is recorded as saying to Sergeant Plum

"That's how he's got a crook back because I hit him with the bat ..."

1. He is also recorded as saying to Sergeant Pluim

"I tossed the cane over there ... - and that's when I flew back over and started belting the bloke with my baton."

1. If any thought was given by Sergeant Pluim or anyone else to Donald Walker's physical state, such thought must have been rejected. Donald Walker could have been suffering serious internal injuries. Yet the ambulance officers were not asked to examine him. He should have been put in the ambulance and taken to hospital. Instead he was taken to the police station.
2. If the evidence of the officers is accepted, no-one appears to have directed their mind to the fact that Donald Walker was without any clothing to the upper part of his body when he was taken out into an 11 degree night. Alternatively, if any thought was given, such thoughts must have been rejected.
3. At the police station, the police officers refused to take him to the toilet and told him he could urinate in a polystyrene cup. To be able to do that, the handcuffs not having been removed, he had to go through a difficult and what must have been painful process to bring his handcuffed hands around to the front of his body.
4. The relevant officers all tended to describe the conduct of Donald Walker at the scene and later at the police station as - "violent and aggressive" or "irrational" or both. When pressed, however, they too were not able to give detail to support the impression sought to be created or retreated to the "I don't recall" position which, in many cases, I am satisfied was not genuine. Further, the descriptions provided in their statements and evidence-in-chief generally inflated the level of aggression, and therefore of danger, posed by Donald Walker. Again, witnesses generally were unable to support those statements. I have come to the conclusion that they too were trying to paint a picture of Donald Walker as a violent and aggressive person, and one who was the aggressor, on the night. The inflation of the description of his aggression in the statements and evidence-in-chief cannot be satisfactorily explained on the basis of lapse of time or innocent error. I am satisfied that that inflation was deliberate.
5. I should, however, qualify the above comments in relation to Sergeant Rogers. He presents a more complex picture. It would appear that initially he, at times, attempted an impartial approach. It was he who assisted Donald Walker to the police van. It was he who interviewed Carter and took notes from him of what Carter told him. The notes of what Carter said to him suggest that Carter was simply allowed to tell his story without any attempted interference. At the time Rodgers appeared to be seeking the facts. But even he, in my view, also succumbed. According to his evidence, he also interviewed Sesin at the hospital but he was unable to satisfactorily explain why it was that he did not keep any note of that interview. In his evidence he said that what Sesin said was substantially the same as that of Carter. If that be so, then it also significantly damages the defendants' case. Another matter of concern is that his notes of the Carter conversation were not delivered to Carter and Sesin, to prosecuting staff or made available at the Magistrates' Court to Donald Walker where Rodgers was the informant.[352] They were not discovered to the plaintiffs by the defendants' solicitors until 18 April 2007, shortly after it came into the latter's possession. Further, if his evidence is to be accepted, he appears not to have noticed any signs of marks on Donald Walker although even Carter at the time acknowledged that they were visible. He agreed it was his responsibility to take reasonable steps to ensure the welfare of persons in police custody. He accepted that he did not ask Donald Walker whether he was in any pain or discomfort and acknowledged that he took no steps to obtain any medical assistance. His attempted explanation for that was that he had no complaint from Walker. I note he was also dismissive of Mrs Walker's physical situation - he claimed that he did not know she was favouring one shoulder even though that must have been obvious.
6. Rodgers also joined in the general description of Donald Walker as one who was behaving in an aggressive manner and speaking loudly and that this continued at the police station. He made particular reference to crashing furniture which was being overturned and banged against the wall. This was not heard by other officers who might have been expected to do so such as Radford and Boxtel. He also gave evidence that he did not check to see if there was any damage done. He also exaggerated the behaviour of Marcia Walker whom he described in his statement as speaking in a loud and sometimes heated manner. That is contradicted by the tape. He accepted that proposition when cross-examined. Finally there is Sergeant Rodger's investigation of the D24 call or calls. According to his investigation there were two calls by D24 in response to calls from Essex Road but he alone maintains that argument and the documentary evidence, such as it is, does not materially advance the matter.
7. I note that I reject the evidence advanced by other police officers about alleged verbal and aggressive behaviour of Donald Walker at the police station. That evidence was vague and general. Donald Walker was probably angry and probably expressed that anger verbally on occasions - for example, at the attempted preliminary interview and on the question of toileting. But he was in no condition to sustain violent or aggressive behaviour. Of course anything he said or did which involved a criticism of the police probably would have been perceived by them to be without any justification and, therefore, seen as violent and aggressive and irrational.
8. It is understandable, in the circumstances, that there would have been little sympathy for Donald Walker from any police officer present because he had injured a police officer, albeit in relatively minor ways and even though he had been more than adequately punished physically. The treatment meted out to him, however, pointed to a strong antipathy towards him and an attitude that he had forfeited any right he might have had to a proper consideration of his own well-being, his rights, or the facts.
9. Sergeant Pluim was right to be concerned about what had happened and about the actions of Carter and Sesin because the objective evidence was apparent to all. Carter and Sesin must have known that they were in the wrong. They could have rectified the situation then and there by being honest about what had occurred. The biased support of their colleagues and their prejudices towards the Walkers would have encouraged them not to do so.

EVENTS PRIOR TO POLICE ARRIVAL - ANALYSIS OF THE EVIDENCE OF DONALD WALKER

1. Donald Walker gave evidence that he met Ms Hamm on 14 August 1993 after she came off duty working as an in-house nurse. They met for coffee and a chat. He invited her back to his place, buying whiskey and wine and coke on the way there, together with sausages and vegetables. They arrived at his home at about 12 midday and had a tin of curry and vegetables at 3pm. They spent the afternoon listening to music and having a few drinks. At around 6pm, a friend Robert McIntosh arrived accompanied by another friend named Nick. At about 7pm Darren Pattiona and Mick Ruddy arrived with a friend of theirs called Mark and about half an hour later three of their female friends arrived. More came later at around a quarter to eight and there were more women who came as well. He did not know who they were or who invited them but their arrival was organised by Mick Ruddy who had asked him if it was ok. At least one of the women left after about half an hour and two or three more arrived at 7.30pm. In the meantime, Robert McIntosh and Darren Pattiona had left at about 6.30pm, before the women arrived who had been called by Mick Ruddy. He thought the last of the guests had left by about 9pm. He had booked a table for himself and Ruth Hamm at Vlado's restaurant at 9.15pm, but forgot about that with the arrival of various people and guests.
2. I note that he gave evidence that at about 4pm Ms Hamm made a phone call to a friend called Jack who owned a milk bar in Middle Camberwell, next door to where she was living. I also note that he gave evidence that the phone rang at about 11.30pm with the caller asking for Ms Hamm. He answered the phone. Ms Hamm was in the music room and he was in there with her. He was about to go and cook her a meal of sausages and vegetables. His evidence was she made the comment "that would be for me and tell them you don't know where I am". He responded accordingly to the caller.
3. He said he started to prepare food just after the 11.30pm phone call. He recalled putting vegetables on the stove and recalled Ms Hamm opening a can of tomatoes and doing something with it, but he did not see what happened to the tomatoes. That was towards the end of the cooking process. He thought the cooking process took about ¾ of an hour and he was probably in the kitchen for 50% of that time and Ms Hamm was in the kitchen about 1/3 of that time.
4. He also gave evidence that between about 8.30pm and 8.45pm that night, Ms Hamm had expressed a desire to leave. He gave evidence that what had occurred was that she had seen photographs that he had taken at the request of McIntosh, of McIntosh and his girlfriend naked and engaged in sexual intercourse. He had taken McIntosh into the kitchen to show him the photographs in private. They had been taken about a week earlier. Ms Hamm apparently found them and asked him what they were. He told her that they weren't his and they were not of him and placed them above the bar out of sight in the music room. He said it was the only time he had ever done something like that. He said it was not a common occurrence at parties at his place. He said two things he did not allow at his premises when parties occurred was sex on the premises or drugs. He broke the rule for his friend.
5. A little while after seeing the photographs, Ms Hamm indicated to him she wanted to leave. He said if she wanted to go that was no problem but he wanted her to leave his jacket that she was wearing behind. He said, however, that things settled down and she started dancing with a few of the people and he thought it was all smoothed over.
6. He said that they had had a sexual relationship in the past and there was sexual contact between them on that evening - at about 11pm on the couch in the music room. By that stage they were the only two in the house.
7. I note that he gave evidence that there were two lights in the kitchen, over the main console which were on.
8. As to his evidence of subsequent events, it forms the basis of the findings in the main reasons about the details of the incident.

1. At one point, Mr Crewdson did become directly involved in the case when he tried to assist the Walkers to organise themselves to move their case along. This involved a long list of tasks to be performed. He said his concern was that he was being constantly caught up in the periphery of difficulties that they were facing in their action, which seemed to feed back into the traumatic experiences which had been described including the alleged assault.
2. He was challenged about this in cross-examination. It was put that he had entered into a forensic role. He said in response that every one of the matters was an issue that had a psychological consideration. He said he was trying to cut through the tangle that was going on. He was attempting to reduce the pressure of the factors that were having an adverse impact on recovery. He said that he had found Mr Walker as someone who irritated him beyond measure at times, because of his nature. But he felt concerned for him as an individual. For Marcus he had other concerns. But he maintained that he didn't really shift in his role. I accept that evidence.

1. Mr De Cesare was criticised in the submissions of Carter as an unsatisfactory witness. It was put for the first defendant that he took a plainly partisan approach in giving his evidence. Counsel referred to his evidence that prior to 1993, Donald Walker was in all respects a man without fault. It was suggested also that the evidence of picking vegetables from Marcus Walker's vegetable garden was false, reliance being placed on Marcus Walker's evidence that he was just growing herbs. Counsel also referred to the fact that he subscribed to the Walker conspiracy theory. Counsel for Carter submitted that the evidence of McRae, Williams and Sheehan was to be preferred.
2. I accept De Cesare is a friend of Donald Walker and Marcus Walker and, like the other witnesses called on their behalf, such as McRae and Williams, wished to support both of them. But none could be accused of taking a partisan approach in my view. The issue of the alleged false account arising from the difference between the picking of vegetables and the picking of herbs is something that was explored with him. One of them is probably wrong in their memory, although they could have been thinking of different times. One can well understand him subscribing to the Walker's conspiracy theory because he would have been given their perception of events. As to his judgment that, before the incident, Donald Walker was a man without fault, that may have been over generous, but it does not involve any dishonesty on his part. All the personal friends spoke highly of Donald Walker. In my view all the witnesses who gave evidence on Donald Walker's behalf and on behalf of Marcus and Marcia Walker as to the changes that they observed in their health and behaviour were credible witnesses.

1. Mr Crewdson applied the diagnostic criteria of DSM-IV 309.81.

1. In cross-examination, Mr Crewdson said that under this heading there were two critical criteria which have some variations. He said there has to be an event of some sort which threatens the existence of an individual to a material degree, either physically or psychologically. The person has to have an emotional response to the event, not necessarily at the time but there has to be a continuum that goes from fear to helplessness and then the rest of the thing, the anxiety and social disorders follow. He said that while the aetiology might be different, it requires those two criteria to be met. They can be met in different ways. He agreed that it would be relevant to what had happened to his life, his business etc. But he said it might reflect his personality that he may have other issues if that were the case. He said he might be batting on.
2. As to the events, they must involve actual or threatened death or serious injury or a threat to the physical integrity of oneself or others. All of those aspects applied to Donald Walker. It must also be intense fear, helplessness or horror. He quoted Donald Walker as saying:

"I was taken by surprise and overwhelmed by the violence of their entry as they kicked in the front door and poured in. The unreasonable nature and the ferocity of the attack made me terrified. I was struggling to assist my disabled mother who was in danger and calling me for help. They had a torch shining in her eyes and she has a severe visual condition. She was in danger of falling. I wasn't able to reach her because I was stopped. I didn't resist. Then I was wrestled to the ground and the blows came thick and fast. The pain from the beating was incredible - the documents show I was struck by thirteen baton hits to vital areas of my body. In the last court case it was admitted that they had struck me as hard as they could. I lost consciousness then. There was a period of about 20 minutes from which I have no memory. It was only the following day that I learned what my mother had undergone and the extent of her own injuries. They had dislocated her arm and knocked her to the ground and she had to crawl across the floor and haul herself up by the curtains. They apparently just stood and watched. It sickened me."

Re-experiencing the events and intrusive thoughts

1. Mr Crewdson explained that this can encompass recurrent and intrusive recollections and recurrent distressing dreams during which the event is replayed. He said that the latter aspect had more relevance in the time immediately after the assault when he was too frightened to sleep in his own bed and was constantly vigilant. Donald Walker now says that he has difficulty in recalling dreams but suffers from broken sleep and is aware that the disarray of his bedding indicates that his sleep has been of a disturbed nature. Mr Crewdson said that there may be some suppression of awareness because of the cumulative effect of the opiate medication.

1. There are seven criteria under this heading of which three must be satisfied. Mr Crewdson said that he had observed avoidance of thoughts and conversation associated with the trauma (the first criterion) in that to try to get Donald Walker, clinically, to address the trauma and to contemplate going back for a systematic desensitisation process was impossible. He would not do it and would not allow him to go through one of the classic techniques of trauma reduction. He said the mere reiteration of events is not necessarily therapeutic. It can, in fact, increase the whole process like pouring hot water on a block of jelly and deepening the original grooves. He said that Donald Walker wanted to tell him about the incident and he told him about it without, in his view, any real experience of it.
2. He referred to the second criterion in this group - the person seeks to actively avoid circumstances that will remind them of a situation. Mr Crewdson said, however, that there was also counter-phobic behaviour where people will go deliberately against what would seem to be common sense and try to overcome the stress of the phobic process. He referred to the relevance of Donald Walker's search for bullet-proof glass. He saw some aspects of avoidance in the way he conducted his work, in that he would try to avoid some parts that he could not cope with - in particular the question of cold calls and his reluctance to make them, which he said could be part of the central depression, anxiety, not wanting to face another difficult situation, not wanting to face his own inadequacies. He said:

"He saw himself as a bit of a super star in the insurance industry. That might be glossed up with the aid of retrospectivity."

1. Counsel for the first defendant sought to challenge Mr Crewdson's diagnosis on the basis that there was an inconsistency between the suggestion of satisfaction of this criterion and the fact that Donald Walker chose to sleep in the precise room where the very scene took place. Mr Crewdson said that his understanding was that Donald Walker was frightened of being done over in his bed - the very place where one would be attacked subsequently, would be where you were most vulnerable and least expecting it. It was his understanding that that was Donald Walker's rationalisation of why he slept on the floor. He said that he took counsel's point about that, but thought it was the development of fear on the same lines as the fear that gave rise to the need to get bullet-proof glass and flack jackets. Pressed as to alleged inconsistency because he was plainly not avoiding the place where the alleged trauma occurred by sleeping in that very place, he said counsel's point highlighted the difficulty of diagnostic characterisation. Pressed further, he agreed it was inconsistent on the surface and in the way counsel put it, but clinically it was not inconsistent and it was not inconsistent with the overall diagnosis of a post traumatic stress disorder. Mr Crewdson said that he satisfied the other criteria.
2. He also said that Donald Walker has feelings of estrangement, (another criterion in this group) and his capacity to relate fluctuates. He also has a sense of foreshortened future (another criterion in this group). Mr Crewdson said that Donald Walker is pessimistic and gloomy as to how he will ever develop anything of a meaningful future. What has happened has taken too long and it has been too much and there is not a lot left.

1. Mr Crewdson said that elevated arousal is increased activity in the physiological systems in the automatic nervous system - that part which gives us the flight from fire response - such as tachycardia, sweating, respiratory dysfunction, mismatching muscular tension. People decrease the level of arousal by smoking or walking out of a room. He said he had seen elements of elevated anxiety levels in Donald Walker, such as shallow breathing and dampness of his hands, pressure of speech, muscular tension, pupillary movement, physical posture and content of speech. One cannot see tachycardia, but can infer it is there behind the behaviour observed. As to pressure of speech and dislocation of thought streams, Mr Crewdson said he had observed both. He agreed it would be likely to increase with pressure. He agreed with the proposition that if you were a plaintiff in a case hoping to get a billion dollars, that would be a pressing situation. The performance of Donald Walker in the witness box was then described to the witness on the basis that he had been in the box for a couple of days, had not displayed pressure of speech, was articulate, responsive, appeared thoughtful, would pause to think about his answers. The witness responded by saying that it may be he had been more effective than he had expected in assisting Donald Walker to modulate his own internal affect, than he thought he had been. He said he had talked to Donald Walker about his needs and his life in general and had made no bones about what would be involved if the matter got to court. He had talked to him about his need to be able to draw on the techniques of internal de-arousal, that is control of affect as if his life depended on it.

1. This required the duration of symptoms in the abovementioned three areas for more than one month. That had occurred in this case.

1. He said that this criterion concerns a restriction of activity that one would have engaged in previously; work related, or domestically related or leisure. In cross-examination he referred to Donald Walker's diminished interest and participation in his social functioning and personal life.

DONALD WALKER AND THE CENTRES OF INFLUENCE ISSUE

1. The first defendant submitted that Donald Walker had not gained access to Centres of Influence because of several factors; his personality and the fact that it was not an attractive option. Counsel also argued that there was no evidence that he wanted access.

1. Counsel for the first defendant submitted that the reason for Donald Walker's lack of access to Centres of Influence had nothing to do with the incident of 1993 but was a consequence of Donald Walker's personality. Counsel referred to the evidence of the witness, Mr Parton, of IFMA, of complaints about Donald Walker's behaviour. Counsel submitted that such behaviour was consistent with his personality before the incident and argued that his personality was not suited to Centres of Influence business. Counsel relied on the so-called Maxwell incident in May 1992, in which he was struck and in which counsel said Donald Walker could be said to have engaged in pugilism. He said that there are very few people who can describe such an experience. Counsel argued that on any sensible view, the problem was his personality, not the alleged myofascial pain syndrome or post-traumatic stress disorder or the medication or his tiredness or his inability to concentrate.
2. This is an argument based more on what counsel might have hoped the evidence would be, rather than what it was. The argument relies upon the alleged Maxwell incident, which was an isolated incident. Donald Walker's evidence was that the incident occurred in his home and arose because he would not allow Maxwell to ring an escort agency and that Maxwell attacked him and that he, Donald Walker, did not throw any punches. Contrary allegations were put to Donald Walker in cross-examination by the defence, but no contrary evidence was led. There was no evidentiary basis to suggest, from the Maxwell incident, that Donald Walker had any personality problems.
3. There was no evidence from his history in selling insurance to suggest that there was anything about his behaviour or personality to cause concern. His success in the past, in fact, provides strong evidence to the contrary. So, too, does the description given by McRae, De Cesare and Williams of the man they knew prior to the incident.
4. Considering the significant physical, psychological and emotional difficulties under which Donald Walker has been attempting to function, all as a result of the incident and the injuries inflicted, it is hardly surprising that he should have acted impatiently, rudely and inappropriately on occasions when his patience was tested or he was disappointed. The argument advanced attempts to quarantine the behaviour from its causes by ignoring reality.
5. The argument also ignores a substantial part of the evidence of Mr Parton. His concern was not just the complaints. He was concerned about the unpredictability of Donald Walker's behaviour and how he could on occasions react aggressively. He gave evidence that the behaviour varies from appropriate to aggressive on a 50/50 basis. He gave evidence that when he rings Donald Walker, he wonders in what sort of mood he will be. As I understood Mr Parton's evidence, it was the "uncertainty of his behaviour" that was the reason why he was denied access to Centres of Influence. These problems must also affect his capacity to sell insurance generally. They are result of the incident and his injuries not his personality.

THE CENTRES OF INFLUENCE SYSTEM AN UNATTRACTIVE OPTION

1. Counsel for the first defendant also submitted that selling insurance by cold calling was not harder than selling insurance through Centres of Influence. It was put that what matters is the ability to develop a relationship and work it through.
2. Counsel also submitted that the Centres of Influence system would be unattractive because, according to Mr Parton, an association with Centres of Influence presented greater risks to the salesman's business. This is because, if the association is lost, the insurance salesman loses the opportunity to generate leads and the trailer commissions would also be lost.
3. Common sense would suggest, however, that selling insurance through Centres of Influence would be much easier than the cold calling approach. For a start, the agent would not face the initial challenge of getting the "foot in the door". In my view gaining business through the cold calling approach would require significantly more patience and person skills than gaining business through Centres of Influence. It would also save time. I note that of IFMA agents, only one other in Victoria uses cold calling. Plainly that is not the preferred mode of business.
4. As to the risk argument, I note that Mr Parton in his evidence referred to the risk, but did not attempt to compare the risk with other risks. The popularity of the use of the Centres of Influence approach, suggests that these risks are not a disincentive.

1. Counsel for the first defendant argued that it would be understandable that Donald Walker would seek to exercise his considerable earning capacity by using his tried and proven sales methods. But is plain on the evidence that he was not able to use his "tried and proven sales method" - he was forced to engage others to cold call and was churning policies.
2. Counsel also argued that Donald Walker had given no evidence of desiring access to the Centres of Influence. Counsel submitted that that would be understandable bearing in mind that:
   • in a transaction made through the Centres of Influence system, the agent gets $700 out of the commission of $1000 paid by the insurance company;
   • Mr Sheehan who is paid $25 an hour, has had a superior strike rate over IFMA's own cold calling strike rate; and
   • Donald Walker can receive the whole of the commission.
3. The issue raised that Donald Walker did not himself give evidence of a desire to have access to Centres of Influence, is a false issue. It is true that he did not give direct evidence to that effect but that fact needs to be put in context. The issue emerged in the following sequence:
   • Mr Parton's evidence was interposed within Donald Walker's evidence.
   • Mr Parton gave evidence to the effect that Donald Walker approached him every year for access to Centres of Influence. There is no reason to reject Mr Parton's evidence about the annual request.
   • Following Mr Parton's evidence, Donald Walker went back into the witness box and was cross-examined about matters, including his evidence of the attempts with his friends to set up a special relationship with St George Bank, the Insurecard exercise and how they compared with Centres of Influence. It was plain from Donald Walker's evidence about these not dissimilar approaches to selling insurance that he would have wanted access to Centres of Influence.
   • The practical forensic reality was that it was for defence counsel to challenge the strong prima facie position that had been reached on the evidence, that Donald Walker wanted to gain the benefit of access to Centres of Influence. They did not do so.

1. I am satisfied that, if he had been in the physical and psychological state he was in before the accident, Donald Walker would have seized the opportunity to become involved in the Centres of Influence system and done well. He may have continued with some cold calling done by himself, particularly if Centres of Influence was lost. His focus, however, would have been Centres of Influence.

1. Counsel for the first defendant relied upon Dr Sale's reports and evidence.

He provided two reports - one dated 30 October 2002 and the other 22 March 2007.

1. In this report he offered a Delusional Disorder as a likely explanation for Dr Walker's difficulties - complicated by alcohol dependency.
2. It is clear from the first report that he had little or no information about the incident itself, or about Marcus Walker's pre-morbid adjustment and the impact of the incident upon Donald Walker and Marcia Walker and only limited information about Marcus Walker's past. What he had learnt from Marcus Walker he was inclined to dismiss as grandiose and narcissistic. If he had had detailed evidence of Dr Walker's past history, a criticism, at worst, of Dr Walker may have been a lack of modesty. He does not appear to address the alternative question of whether Marcus Walker was simply, mistakenly, trying to impress.

1. In this report he described the Delusional Disorder as a "provisional diagnosis" and abandoned it in deference to Dr Pargiter's diagnosis. He did, however, advance an "alternative scenario" that Marcus Walker's difficulties reflected "underlying personality characteristics".
2. In expressing these views, he still had very little information about Marcus Walker's previous life experience, behaviour and performance or the incident. In this report he commented on this lack of information saying the following:

"An assessment of Dr Walker is hampered by there being little in the way of background information concerning the nature of the incident. There is also no independent information concerning his pre-morbid adjustment, particularly in the four to five years immediately prior to the alleged traumatic incident."

1. In his evidence, Dr Sale's starting point was that the lack of occupational output from 1989 to 1993 was an indicator that something was not going right in Marcus Walker's life. Dr Sale argued that losing the kudos of being at places such as Harvard or even Monash University in the research department would be a significant issue for a man like Dr Walker. Dr Sale regarded the period from 1987 to 1993 as reflecting some personality issues and the incident came along

"and provided him with a reason that he could live with to explain why his life was not going anywhere - a rationalisation, coming up with a palatable reason for something that is actually caused by something else."

1. Reliance is sought to be placed on Dr Sale's somewhat speculative "impression" of a man

"who may have been narcissistic and entitled and who has retreated to a wounded invalidity that protects him from confronting the failures of his life."

1. In his evidence Dr Sale also expressed the opinion that it was the conspiracy theory that was the key factor interacting with Marcus Walker's personality rather than the events of the night. But Dr Sale was ignorant of the circumstances of the injuries to Marcia and Donald Walker and their extent. He also had no idea of the details of what had occurred. In fact he had proceeded on a very limited and misleading impression. In cross examination it emerged that his understanding was that there had been an arrest of Donald Walker for rape and that Marcia Walker had been injured in some form of altercation by pushing and shoving, or possibly verbal, resulting in a dislocated shoulder for which she needed treatment. He assumed she would have recovered after a few weeks. He assumed Donald Walker had not been injured. His assumption had been that the activities of the police were lawful.
2. When, ultimately, there was put to him the scenario relied upon by Mr Meldrum to explain Marcus Walker's condition including the plaintiff's description of the events of August 1993, Dr Sale stuck to his belief and argued that this scenario was not sufficient to explain what had happened to Marcus Walker's in the intervening fourteen years.
3. Information as to the incident and Marcus Walker's history prior to the incident, were, of course, critical to forming any hypothesis, let alone an opinion as to the likely psychiatric explanations for Marcus Walker's then condition. It is remarkable, having regard to the lack of such information, that he was prepared to form and express judgments about Marcus Walker and express anything more than a range of very tentative hypotheses.
4. In his evidence, Dr Sale acknowledged that he had failed to explore these matters with Marcus Walker, but blamed Marcus Walker for that. I note that he could have sought more details from the solicitors who had sought his opinion.
5. Counsel submitted that, while Dr Sale purported to defer to Dr Pargiter's opinion, it was merely a bow in his direction and in fact he persisted with his thesis that the problem lay in unusual personality traits. Counsel's criticism is valid.
6. Dr Sale accepted, appropriately, that the closer siblings are the more likely there will be an impact on the uninjured one. If they were "symbiotically close" that would be an important issue to discuss. I note also that he believed the brothers were close. He based this, however, on information about their joint enterprises. He did not enquire about how emotionally close they were. Dr Sale was dismissive of what he was told by Dr Walker about his family life. He regarded his description as "idealised". When that was challenged, he said that that was the impression he formed from what he was told, observed and his experience. Again he lacked the information needed to form the view expressed.
7. Counsel for Marcus Walker submitted that the most important point about Dr Sale's reports and evidence was his abandonment of his opinion expressed in his first report that the condition of Marcus Walker was in large measure the result of a delusional disorder. He did so, as he said, because Dr Pargiter knew Marcus Walker better than he did. Counsel submitted that that continued to be the situation and that, therefore, Dr Pargiter's opinion should be preferred. Dr Pargiter's opinion, however, it was put, did not place emphasis upon the personality traits - the "alternative scenario" maintained by Dr Sale in his second report.
8. Dr Sale's change of diagnosis is significant and revealing. Dr Sale had taken a history and made mental state observations and formed his original view. The only new information Dr Sale had on which to change his view was Dr Pargiter's report. What Dr Sale conceded was that Dr Pargiter was someone who had seen more of Marcus Walker than he had and didn't think that he was delusional and, therefore, he deferred to that opinion.[353] He did not, however, give way on the primacy that he had placed on the personality traits - something to which Dr Pargiter had not given primacy. Dr Pargiter referred to personality characteristics as relevant but did not diagnose any abnormal personality or vulnerability. Dr Sale gave evidence that he respected Dr Pargiter's opinions, but he also said that he would "put more weight on" his own alternative. There was no satisfactory explanation provided for deferring on one issue but not the other.

1. Counsel for the first defendant sought to paint a picture supporting Dr Sale's views. Counsel argued that Marcus Walker was not your normal human being, that he was a most fragile man. He could cope with studying, but, when he entered the arena of life, things started to go wrong. Counsel accepted that what he was submitting was that the cause of his psychiatric illness was his personality and his choice to take advantage of something that had happened because of his personality.

1. Counsel for Marcus Walker submitted that there were several reasons why Marcus Walker was not engaged in his scientific career during this period. Counsel submitted that it was clear that even before he left Monash he was giving a number of hours each week to the care of his mother and that was slowly growing and never likely to disappear. The family had arrived at a decision that Marcus would do that but counsel submitted that his work ethic up to that stage was such that it would be very unlikely that this was a man who would simply elect to drop out of the workforce. He noted that Mr Langmead did not put it that way, but rather argued that it was evidence that he couldn't cope. Counsel for Marcus Walker argued that this flew in the face of all the work he did in the Dance Party. He showed himself to be a person capable of handling a work position, being productive and doing an enormous amount of organising and arranging. Counsel submitted that, in 2002, to apply to pick hops does not mean that your life has fallen into a hole - although this may have been Dr Sale's view. Counsel submitted that Dr Sale also seemed to hold the very limited view that if your job is not in a formal work situation or with a pay packet and measurement of performance, you are not being productive.

1. In my view, the above are valid criticisms of the first defendant's argument. To them may be added the evidence of Marcus Walker's success in coping in the arena of life in running a motel and working in a leadership position in construction work. Of course this was some time prior to the incident but there is no evidence of any mental instability or vulnerability at the time of or prior to the incident.
2. There is also other evidence of relevance to this issue.
   • Mr Crewdson's evidence. He saw Marcus Walker on three occasions in 2003 and 2004 for the purpose of treatment. He said in his evidence that he saw nothing to suggest any abnormal insensitivities and he did not see anything particularly significant in Marcus Walker moving away from the scientific research area.
   • Dr Pargiter. Counsel for the defence sought to support the argument that the issue was Marcus Walker's personality by relying upon an interpretation of Dr Pargiter's statement in his report that

"the mental state assessment reflected both depression and personality characteristics"

Dr Pargiter, when cross-examined, agreed that he was saying that the mental state assessment was suggestive rather than conclusive of depression and personality characteristics. It was put that later Dr Pargiter sought to resile from that and limit the reference to suggestive to the reference to personality characteristics. Counsel for the first defendant sought to rely on this evidence to attack Dr Pargiter's credit and his evidence on the role of Marcus Walker's personality.