HEARING DATE/S: 17 - 19, 24, 25, 27 October 2022

Torts - Interference with the person - Trespass to the person - Defences - Other matters - Self-defence - Defendant bears the onus of establishing the defence - Approach to the defence is otherwise that taken in relation to s 46 of the Tasmanian Criminal Code_._

Quarmby v Oakley [2011] TASSC 20; Dale v Fox [2012] TASSC 84, followed.

Torts - Civil liability legislation: modifications to torts and law of negligence - Definitions - Injury; intent to cause injury - Civil Liability Act 2002 not to apply to liability in respect of an intentional act done with intent to cause injury or death - Actual subjective intention to cause injury must be established -- Not necessary for plaintiff to prove intention to cause the injury the subject of the claim - "Injury" means something more than trivial hurt or harm.

Civil Liability Act 2002, s 3B.

Dickson v Northern Lakes Rugby League Sport and Recreation Club Inc [2020] NSWCA 294; (2020) 103 NSWLR 658; State of New South Wales v Ibbett [2005] NSWCA 445; (2005) 65 NSWLR 168; Hamilton v State of New South Wales (No 13) [2016] NSWSC 1311; Irlam v Byrnes [2022] NSWCA 81, applied.

Torts - Miscellaneous defences or limitations of liability - Criminal or illegal activity - On the part of plaintiff - Court not to award damages if the injured person was at the time of the incident that resulted in injury engaged in conduct that constitutes a serious offence - Strict temporal contemporaneity required between incident and engagement in criminal conduct.

Civil Liability Act 2002 s 6(1).

Sangha v Baxter [2007] NSWCA 264; Corliss v Gibbings-Johns [2010] QCA 233, considered.

Torts - Contributory negligence - In action for tort other than negligence - Whether contributory negligence available in response to claim of intentional tort - Battery - Definition of "wrongful act" in Wrongs Act 1954 to be read literally - Extends to acts or omissions giving rise to any liability in tort irrespective of its form.

Wrongs Act 1954, ss 2, 4

Horkin v North Melbourne Football Club Social Club [1983] VicRp 12; (1983) 1 VR 153 considered.

Damages - Assessment of damages in tort - Personal injury - Other heads of damages - Future care - Cost of care, location etc - Plaintiff in shared supported accommodation with shared 24 hour care - Whether reasonable in circumstances to provide costs of modifications of notional house and consequential increased cost of future attendant care.

Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; (1968) 122 CLR 649; Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563 Wieben v Wain [1990] Aust Torts Rep 81-051, considered.

Damages - Particular awards of general damages - Tasmania - Traumatic brain injury resulting from battery - Severe physical and cognitive disabilities - Appreciable level of insight into difficulties - Plaintiff active person before injury - Aged 36 at trial - Award of $350,000.

Judgment Number: [2023] TASSC 33

PUBLIC TRUSTEE as the Administrator of the Estate of Matthew Peter Leonard v FALEUPOLU ATILEO and SL SECURITY PTY LTD (ACN 097 419 358)

1. At about half an hour after midnight on Saturday 19 July 2014 Matthew Leonard, then aged 28, suffered a very serious head injury after an altercation with a 'crowd controller' outside the Syrup Nightclub (the Club) in Salamanca Place, Hobart. The plaintiff's disabilities are such that the Public Trustee has been appointed administrator of his affairs, and it brings this action for damages on his behalf. For convenience, I will call Mr Leonard "the plaintiff". Because of his injuries, he has no memory of the incident or preceding events and only some of what followed. He has no reliable memory of his history.
2. The defendants are Faleupolu Atileo (commonly called Fale), who was the crowd controller involved, and his employer, SL Security Pty Ltd; respectively the first and fourth defendants. (Proceedings against the Club and its manager, as second and third defendants in the action, were discontinued shortly before the trial commenced.)
3. As against the first defendant, the plaintiff pleads a case in battery for which the fourth defendant is said to be vicariously liable. The fourth defendant agrees that it is vicariously liable in the event that the first defendant is found liable. The plaintiff has also pleaded a separate cause of action in negligence as against the fourth defendant but the parties are agreed that if the first defendant is not liable, including on the basis of self-defence, there is no case against the fourth defendant. Because of that scenario, it is convenient to refer to Mr Atileo as the "defendant".
4. The trial concerned both liability and damages. Within the issue of liability a number of factual and legal questions need to be resolved. Against the factual backdrop that I will explain, there is no dispute that the heavily intoxicated plaintiff was escorted from the Club and ushered on his way. After moving a short distance away, he returned to the area immediately outside the Club. The culmination of what then happened was that the plaintiff punched the defendant to the left side of the face, immediately after which the defendant either punched the plaintiff to the left side of the face or pushed him to the left shoulder. The nature of the force applied is a prominent issue in the trial.
5. As a result of the physical contact the plaintiff fell backwards hitting his head on the roadway. He was treated by ambulance crew at the scene and about half an hour after the incident he was taken to the Royal Hobart Hospital (RHH) where he was assessed and underwent an emergency craniotomy.
6. The liability issues are as follows:
   • Whether the defendant punched or pushed the plaintiff, that fact being relevant to the next two issues - self-defence and intention to injure.
   • Irrespective of the nature of the force applied, whether the defendant acted in self-defence thus providing legal justification for his actions.
   • If self-defence is not established, whether the defendant intended to cause the plaintiff injury within the meaning of s 3B(1)(a) of the Civil Liability Act 2002 (the CLA), the answer to which affects remaining questions of liability as well as the assessment of damages. That is because, if satisfied, the section operates so as to disengage the application of the CLA.
   • If the answer to the s 3B question is in the negative, whether the plaintiff is prevented from being awarded damages by virtue of s 6 of the CLA which prohibits a court from awarding damages if satisfied that the person whose injury or damages is the subject of the proceedings was, at the time of the incident that resulted in the injury or damage, engaged in conduct that constitutes a serious offence, and the conduct contributed materially to the risk of injury or damage that was suffered.
   • Whether, if the defendant is found liable and irrespective of the answer to the s 3B question, damages to be awarded can be reduced by reason of any contributory negligence on the part of the plaintiff. That involves consideration of the definition of "wrongful act" in s 2 of the Wrongs Act 1954.
   • If that is so as matter of law, whether the plaintiff was contributorily negligent, and the extent to which his damages should be reduced if he was. The approach to those issues is affected by the answer to the s 3B question. If the CLA applies, s 5 provides for a presumption of contributory negligence if, at the time of the act or omission causing injury, a plaintiff was intoxicated to the extent that their capacity to exercise due care and skill was impaired. In that case there is a mandated reduction of 25 per cent or such greater or lesser figure as the court thinks appropriate, with the onus being on a plaintiff to persuade a court to adopt a lesser figure.
7. As to damages, many matters have been the subject of agreement, for which I am grateful. The prominent matters for determination are the plaintiff's life expectancy - the answer to which affects many of the items of damage claimed - loss of learning capacity, what is reasonable for the plaintiff in terms of future hosing and attendant care. Additionally, if the defendant is liable and the CLA does not apply, the claim for the cost of gratuitous care will arise.
8. It follows from what I have set out that in order to fulfil my obligations as a trial judge, I will need to consider and resolve issues that are not essential to my ultimate determinations. For the following reasons, I find for the plaintiff.

1. So as to provide a better appreciation of the evidence before setting out the background facts, I will say something about the area in which the incident occurred, and about the CCTV footage of the incident that is in evidence.
2. Although not strictly accurate, I will assume that Salamanca Place runs in a north/south direction. The entrance to the Club faced east and was effectively a few metres from the intersection of Salamanca Place and Montpelier Retreat on the western side of Salamanca Place. The area immediately outside the Club door was a paved pedestrian footpath with a kerb, and hence a step down to car parking/roadway areas. Just along from the door to the north, as the kerb line approaches the corner with Montpelier Retreat, there was what is known as a pedestrian kerb extension, or kerb "build-out"; sometimes called a "bulb-out".
3. The extension was an irregular shape; effectively, a quadrant of a circle. Just to the north of the Club door, the kerb went at a right angle in an easterly direction from parallel to the roadway. The 'roadway' space so created was a right angle car parking space, marked by a sign at the corner. After a straight line of about three metres, the kerb curved back around in an arc in a north westerly direction, and ultimately formed the roadway edge of a normal width footpath on the Club building side of Montpelier Retreat. It was at the rounded corner of the build-out formed by the straight lined kerb and the start of curve back around, that the incident took place.
4. There were two large raised umbrellas erected outside the Club which have some significance in the narrative. From a position looking at the front of the Club there is one about a metre or so in from the edge of the footpath just to the right of the Club door, and another one about three or four metres further to the north on the same line along the footpath.

1. The area in which the incident happened was covered by CCTV and the relevant 'footage' is in evidence, both in normal speed as it happened and in slow motion. For ease of reference I will call the general footage the "video" and distinguish the speed when necessary. There was no evidence as to where the camera was precisely located, but it seems to be on the eastern edge of Salamanca Place. Looking at the video, left is south; right is north. The whole of the relevant area is shown including the Club door which is on the far left of the picture. The point where the altercation took place is effectively in the middle of the picture. The start of Montpelier Retreat is on the right.
2. The roadway for vehicles travelling in a northerly direction can be seen in full, while only part of the carriageway for vehicles travelling in a southerly direction can be seen. The area is not well lit. Occasionally, car passing car lights illuminate the area but not at any material time. The video is shadowy and much of the detail in unclear but the plaintiff is easily distinguishable as he was wearing a white T-shirt and white jeans, and the defendant is also easily recognisable. There are other people who can be identified or have, in evidence, identified themselves in it.
3. Importantly, at the time the defendant applied force to the plaintiff, the plaintiff essentially had his back to the camera, and he obscures vision of the defendant's right side. It is simply not possible from the video itself to reach a conclusion as to whether the plaintiff was punched or pushed. Some inferences can be drawn from body movements both as to what actually happened and what view witnesses had of what happened. Each party has asked me to take different things from the same short segments. Care needs to be exercised in interpreting the images, and in order to make findings of fact I am reliant on eyewitness testimony, although aided by the video.
4. I should add that, as delineated by the time shown on the video, the time between when the plaintiff strikes the defendant and when he has fallen to the ground is a mere two seconds; from 00:33:55 to 00:33:57. That is something that needs to be borne in mind in relation to a number of issues.

1. I need to also say something about those who were in the immediate vicinity of the incident, some of whom gave evidence and some did not. As things appear on the video, there was a total of 11 people in the immediate area outside the Club when the clash between the plaintiff and the defendant happened, including those two. There was probably a twelfth who does not come into view in the video until much later. The plaintiff gave evidence but, for obvious reasons, said nothing about the incident. The plaintiff called evidence from Ebony Jenkins who was close by at the relevant time. Very shortly beforehand, she had been standing outside the Club with her brother, Nick Woodward, who features in the prelude to the physical clash between the plaintiff and the defendant. I was told that Mr Woodward "is no longer with us".
2. Standing at all times at a point close to the start of the right angle of the car parking space and the car parking sign, effectively between the umbrellas was a group of four people; three females and a male. Of that group only Samantha Mead and Jacqueline Murkins gave evidence. There were two other security staff standing close to where the plaintiff and the defendant were at the relevant time; Chase Scott and Ryan Thorne. Mr Scott did not give evidence while Mr Thorne gave evidence on behalf of the defendant. There was a crowd controller who mainly stayed immediately outside the door. The evidence suggests this was Ivan Meaclem[1]. He did not give evidence. There was a fifth security person on duty at the time, Sunia Ma'afu, who is likely to have been the twelfth person outside the Club at the relevant time. He did not give evidence.
3. The plaintiff tendered by consent a number of statutory declarations made by various people to police officers in their course of their investigations of the incident. Those statements included ones from people who gave evidence, from those I have just mentioned as not having given evidence, and from others as well. The parties were agreed that the tender was on the basis of an exception to the hearsay rule and that I could take the statements made as evidence of the truth of the representations, but what weight I gave to the evidence was a matter for me to determine.

1. The facts leading up to the incident in which the plaintiff was injured are not in contention, and I find as follows. About 11pm the plaintiff was at a hotel near the Club. He was drinking beer. His sister, Christy Barber, left him there about midnight. I infer that shortly afterwards he made his way to the Club. When inside, he was the subject of complaints to security staff because of his behaviour. The plaintiff was heavily intoxicated; The RHH notes contain a record made at 07:20 on 19 July that the plaintiff's blood alcohol level "on admission" (at 06:45) was 0.35%.
2. Samantha Mead and Jacqueline Murkins gave evidence that the plaintiff was harassing their group of four by grabbing the females when they were dancing, intruding into the group and inserting himself into photographs that were being taken. There is no reason to doubt that evidence.
3. The defendant was stationed at the front door of the Club which was at ground level. The Club itself was upstairs. A man came down to him and told him a male was "groping his missus on the arse". As a result, the defendant went upstairs and a short time later, saw a male grabbing a woman on the bottom. That male was the plaintiff. The defendant told him to finish his drink and to accompany him downstairs. When they were on the landing between floors, the plaintiff said that he had left his jacket behind the bar. The defendant asked for the cloaking ticket so he could retrieve it, telling the plaintiff he would not let him back in the Club area.
4. The plaintiff looked for his ticket but could not produce anything. As he put his hand in a pocket, a large number of bills in high denominations fell onto the floor. The defendant picked up the money, put it in the plaintiff's wallet and put the wallet in the plaintiff's back pocket. He told him he would take him back upstairs to talk to the bar manager, to see if his jacket had been put behind the bar.
5. The bar manager, Bianca Peters, told both men that no-one had put a jacket behind the bar. At about this time, another security guard who had just started work, Ryan Thorne, joined the plaintiff, the defendant and Ms Peters. The plaintiff became agitated, abusive and aggressive. He punched Mr Thorne to the face/neck region. Both the defendant and Mr Thorne restrained the plaintiff and physically manoeuvred him out of the venue. The defendant had hold of the plaintiff by his collar and was holding one of the plaintiff's hands behind his (the plaintiff's) back.
6. Once on the footpath outside the Club, the plaintiff was still behaving aggressively and swearing. The defendant told him to go and enjoy his night somewhere else, but not there. After hovering around and plainly remonstrating with the defendant for a short time, the plaintiff left and walked in a very unsteady manner across the road and median strip - apparently across the whole of the roadway - before turning around and making his way very deliberately back across the street towards the Club.

1. What follows is mostly my description of the video which I am sure does not do it justice. I will leave until later, evidence of greater detail and of things that were said. The video starts at 00:29:57. The plaintiff was ejected at 00:32:14.
2. Having very quickly walked back across the road - in great contrast to the way in which he had walked away - the plaintiff went to where the defendant was. At that point the defendant was in the middle of the build-out. As the plaintiff approached the defendant, Scott Chase and Ryan Thorne came across from the direction of the Club door. Mr Scott stood on the defendant's right as he faced the plaintiff with Mr Thorne to his right, basically in a line to the Club door. At this time and for what follows, the plaintiff was facing the Club building, away from the CCTV camera. The plaintiff and defendant were face to face for a short time, during which it appears there was some verbal exchange. The plaintiff moved to his left and stopped in front of Mr Scott. There appears to have been another verbal exchange.
3. At this point Mr Meaclem was directly outside the Club door looking outwards. He had Mr Woodward in front and facing him, with Ms Jenkins to his left. The Mead/Murkins group was still between the umbrellas close to the top of the car space. At the time the plaintiff was apparently speaking to Mr Scott, Mr Woodward came across to the plaintiff. The two knew each other. As Mr Woodward approached the plaintiff, the defendant moved closer to the plaintiff. When Mr Woodward reached the plaintiff, he told him to go home. The plaintiff moved to push him and they ended up pushing each other at about the same time. The defendant then walked closer to the plaintiff with his right hand slightly extended and his left hand in his pocket.
4. By this time Ms Jenkins has moved closer to her brother and the plaintiff. Mr Woodward made his way back towards the Club door while Ms Jenkins stayed close to where the defendant was. The plaintiff took a few steps backwards off the build-out into about the middle of the first car parking space, while the defendant moved to the corner, staying on the paved section.
5. The two were then facing each other. The plaintiff was on the lower car space area; the defendant was standing at the corner on the paved pedestrian area. At this point, arrayed to the defendant's right were Mr Scott, Ms Jenkins who was a little closer to the kerb, and Mr Thorne who was basically standing on it; all were generally facing south but with heads turned to the left. The plaintiff moved a little to the defendant's left hand side, punched him to the left side of his head at the point of his ear and immediately stepped backwards. The defendant instantly responded. He swung his right arm - and effectively in one motion - propelled himself forwards, stepping down from the corner in the process.
6. The defendant made contact with the plaintiff. As it appears from the video, the contact point seems to have been around or above shoulder height. The plaintiff's head can be seen turning to the right and at the same time as he starts to fall backwards. Immediately after making contact, the defendant swung his left arm in a round-arm motion at the plaintiff, as he (the plaintiff) was dropping away from him. That arm movement is a point of contention although no contact occurred. The defendant's forward movement continued and he appears to have lost his balance after the second arm movement. The plaintiff ended up about in the middle of the actual carriageway for north bound vehicles with the defendant essentially on top of him.
7. At the time the defendant struck the plaintiff, the position of the three closest onlookers had changed. Immediately after the plaintiff hit the defendant both Mr Scott and Mr Thorne hurried closer to the position of the protagonists. Mr Thorne had to get around Ms Jenkins in the process, and she took a step or two backwards. Both men continued to move. Bearing in mind that everything was happening extremely quickly, at the precise point in time of the defendant's blow, Mr Scott is in something of a line between Ms Jenkins and the two protagonists. What Ms Jenkins was able to see is also a point of contention.
8. As the plaintiff and the defendant fell, Mr Scott and Mr Thorne were with them almost immediately. Both men pulled the defendant up and away from the prostrate plaintiff and Mr Scott used his left arm to shepherd the defendant away. The speed with which the incident unfolded and the positions of those closest to it are illustrated by two still images of the video. Both show the times 00:33:57. The first shows the defendant making, or about to make, contact with the plaintiff. Ms Jenkins and Messrs Scott and Thorne are in the position I described in the previous paragraph. The second shows the plaintiff about half way to the ground with the defendant still on his feet but leaning forward slightly. By the time of that image, both Mr Scott and Mr Thorne had moved forward by two or three steps, with Mr Scott having very quickly moving away from the imaginary line between Ms Jenkins and where the plaintiff was.
9. Once to his feet the defendant took a few steps backwards, turned and walked away from the scene, leaving Mr Thorne and Mr Scott to attend to the plaintiff. Ms Jenkins had moved forward, and was close to the plaintiff for a fleeting moment before walking back towards the Club door. She arrived at the Club door at about the same time as the defendant who then stood in the door way with his hands in his pockets, looking at what was going on in the roadway. Ms Jenkins and Mr Woodward remained close by. They stayed in the area immediately outside the Club for some time. About two minutes after the altercation, Ms Jenkins went close to where the plaintiff was on the ground, no doubt checking on his condition. A little later Ms Jenkins and Mr Woodward were in the immediate vicinity when the plaintiff is moved off the roadway, and Mr Woodward assists by directing traffic. They left the area at about 00:39. An ambulance arrived at about 00:44.
10. In all of this, the Mead/Murkins group had not changed their position at all, either as a group or relative to each other. No-one in the group appears to have responded in any significant overt way to the altercation or to the fallen plaintiff. Not long after the incident some people - who had not earlier been seen - appear from the right of screen and go to where the plaintiff is; one of them hurries to that position. The Murkins/Mead group remained where it was, and was still there about seven minutes after the incident, before going back into the Club.

1. The only eyewitness to the events called by the plaintiff was Ms Jenkins. In addition to her evidence, the plaintiff relies on what might be gained from the video, evidence that the plaintiff had a "black" left eye shortly after the incident and evidence of alleged admissions later made by the defendant, given by the plaintiff's sister Christy Barber. The defendant gave evidence in his case, and called evidence from Mr Thorne, Ms Mead and Ms Murkins as to the incident. Of course, much of what follows is also relevant to later factual issues that I need to decide, such as self-defence and the application of s 6 of the Act.

1. Ms Jenkins' evidence was that she was out that night with her brother, Nick Woodward, and her boyfriend. They arrived at the Club a little after 11pm on the Friday night. They had been to two other venues beforehand. That Ms Jenkins was the designated driver and had only had two beers before getting to the Club. Not long after getting to the Club, Ms Jenkins was accosted by a man (not the plaintiff) who kissed her on the lips. She complained to security and went outside to where she knew where her brother had gone, in order to have a cigarette with him.
2. As she was going down the stairs two 'bouncers' went past her bringing a person she later found out to be the plaintiff down the stairs. One of those was the defendant. She did not know who the other one was. She knew Chase Scott from previous visits to the Club.
3. When she reached the entrance she saw the plaintiff walking across the road and could see that there were words being exchanged between two security men and the plaintiff, but could not hear what was being said. She said it looked as though the bouncers were being antagonistic, adding that it looked like everyone was mouthing off at each other. She later said "... it looked like everyone was just antagonising each other or mouthing off, words were being exchanged." The witness was asked to "go on" but made no express mention then of the plaintiff returning from across the road. Her evidence was:

"It looked like he [the plaintiff] lifted his right arm to hit the bouncer but it wasn't a forceful hit it was just - it's like he wanted to but it didn't really connect sort of thing. I - yeah, it's - it looked like a half-arse thrown punch. Like just, like he wanted to but then he didn't want to I don't know. But then within seconds, the bouncer had raised his right arm and punched Matthew [the plaintiff] in the face and he went to hit him again with his left hand. And the bouncer lost his balance, like there was no second hit because the bouncer lost his balance and as Matt fell, the bouncer also fell on top of Matt. And then as soon as that happened I heard Chase tell Atileo that he needed to get out of here, go inside, like get out. And in that moment, I said to Chase, 'He's not all right, he needs an ambulance.' Chase said to me that, 'It's okay, he's only knocked out.' I said to him, 'He's not fucking knocked out, he's dying, there's blood everywhere.' I can't remember what was said in the moments after that, but then within a minute or two later, two people, which I'm unsure of who they were, picked Matt up by his arms and his legs and moved him off the road."

1. Ms Jenkins said that at the time she was under the umbrellas about two to three metres away but was fairly close to what she saw. She cannot remember anything obstructing her view, and said that she had a clear view of what happened. She described the defendant's punch as a very forceful punch with a closed fist. She said that she did not gain an impression that the left punch that did not connect was an attempt to grab or hold the plaintiff. She thought there was a second "hit" coming that stopped, and only did so because the defendant lost his balance and fell on top of the plaintiff.
2. Ms Jenkins' statutory declaration to police was in the tendered bundle. It was made on the evening of the same day; 19 July 2014. Her evidence was generally consistent with that statement. In the statement she describes the incident between the plaintiff and her brother. That description is generally consistent with the video. In the statement, she acknowledges having been shown surveillance footage by the police and having identified herself and her brother Nick. She also says she saw the plaintiff take some steps towards the bouncers from "the direction of the taxi rank" and was walking quite straight.
3. In cross-examination, Ms Jenkins denied that she was shown the video footage before she had made a statement but was uncertain about whether she had seen it before she signed the statutory declaration. Obviously, the statutory declaration itself shows that she was. When asked about memory difficulties, she said she had "a great memory". However, in her evidence-in-chief she said that they had gone from a hotel bar to the Club, but conceded in cross-examination when shown her statutory declaration, that they had gone to another bar as well before going to the Club, saying "that has just re-jigged in my memory."
4. She was taken through CCTV footage from the Club itself in order to identify various people, and then taken through segments of the video of the incident. At a point just after the confrontation between the plaintiff and her brother she agreed she had turned to face in the direction of the security guards; that is in a northerly direction. She denied using her mobile phone to film them, the suggested motive being that they had done nothing to assist her brother.
5. Ms Jenkins agreed the video shows her then turning anti-clockwise from her right to left, adding that she turned around "and saw it all unfold...you can see me turning quite clearly to face what was going on." It was suggested to her that at the time the plaintiff struck the defendant she was in fact looking towards the Club door. She said, "No, I saw a punch...then I seen, who I know as Atileo, retaliate.[sic]." She agreed that Mr Scott had walked in front of her at one point but suggested the video showed a gap through an outstretched arm, saying she "could have a clear view of what was going on because I saw what was going. I know what I saw." When played the part of the video when the plaintiff falls backwards, Ms Jenkins said - unprompted by any question - "See I am looking the whole time. My face is directed at them."
6. Ms Jenkins went on to again mention a "half-arsed punch" being thrown at the defendant, not something with any power behind it, and denied that she did not see the defendant punch the plaintiff; "I did see him throw his punch", repeating that same answer when it suggested she was not looking at him. When it was suggested Mr Scott was in between her and what was happening between the plaintiff and the defendant she again said she could see what was going on. She went on, "I have a clear, vague [sic] memory. If I could draw, I could draw you a picture of my brain of what I could see." The following exchange then occurred:

"And to the extent that you could see, I suggest to you that Atileo actually pushed Mr Leonard, he didn't punch him?......He punched him with a closed fist and force behind it. He went for a second punch with his left hand and he fell - he lost his balance and fell on top of Matt. If he didn't lose his balance, I suggest that another punch was coming, from what I witnessed."

1. Another of the plaintiff's sisters, Karen Leonard, gave evidence that on the Saturday (at an unspecified time) she went to the RHH to see her brother. She had not been able to see him before that. In evidence, she said that he had substantial swelling to his face and "a massive black eye to his left side." She said that the swelling was quite prominent.
2. Christy Barber said she saw her brother on the Sunday morning. Again, no specific time was stated. She said that he had "pretty bad bruising" and swelling to the left eye. She took a photograph which is in evidence. That photograph shows the plaintiff on his back with his head propped up. His eyes are closed, he is in a neck brace and he is intubated with the apparatus hooked up to his right side. The photograph shows his face and neck but is taken more from the right side than the left, so that not all of the left eye can be seen. There is bruising to the inside corner of the right eye with some lesser colouration underneath the right eye itself. There is dark purple bruising of the left eyelid, although in the photograph, the nose obscures the inside corner of the eye and the left upper part of the nose.
3. The RHH medical progress notes made at 9.30pm on Sunday 20 July include an entry; "Mouth & eye care attended to. L) eye bruising noted." The hospital records also contain two photographs of the plaintiff showing him in a similar situation as in the photograph taken by Ms Barber. The day and the time at which these photographs were taken is not discernible from the records and there is no other evidence. These photographs are taken from the plaintiff's right side. The bruising in the area of the left eye is much less pronounced; it is more concentrated in the inner corner of the eye. Not much of the right eye is discernible.
4. The RHH medical progress notes made at 6:45am on 19 July 2014, apparently on admission to the ICU, contain considerable handwritten detail of the plaintiff's representation and condition. The author of the notes has noted a laceration to the right fifth finger, but there is no note of any facial bruising or swelling, or of a black eye.
5. The two photographs show two separate areas of the plaintiff's head that were bandaged. One is on the top of his head but more to the left side. The other effectively covers his left ear and comes relatively close the left eye. It is relevant to note that the hospital notes record the results of a CT scan of the brain - presumably before surgery - as being a left frontal hematoma effecting the temporal and parietal lobes with haemorrhaging in the tissue of the left parietal and occipital regions. The recorded details of the operation refer to an incision "starting anterior to the tragus and arcing posteriorly and approaching midline" and state that a large fronto-temporal craniotomy was elevated and extra-dural blood was noted. After the dura was opened, acute subdural blood was noted and evacuated; the underlining brain was contused. There was "significant venous bleeding from cortical veins" requiring close attention. There was also a single frontal burr hole made and an intracranial pressure monitor was inserted.
6. The RHH records contain a letter jointly signed by Dr Andrew Gauden, Neurosurgery Registrar, and Angela White as the Medico-Legal Officer, addressed to Detective Constable Krista Dennis. It is dated 2 September 2014. The request for the report is also contained in the records and it refers to an alleged assault on the plaintiff. The request asks for eight matters to be specifically addressed; in particular, the patient's physical state with particular reference to what was said to be the result of the assault on the plaintiff, and the opinion as to whether what was observed was consistent with the claimed assault.
7. The reply contains a description of the large acute subdural hematoma that was found along with associated bleeding etc, those injuries being said to be possibly "consistent with the alleged injury of a punch and fall backwards onto the pavement causing an injury to the parieto-occipital region." As to the issue of consistency with the claimed assault, the authors of the report say the injury sustained "could be consistent with a history of an assault obtained." There is no mention of any facial bruising or swelling, or of a black eye.

1. Ms Barber's evidence was that in early August, a few weeks after the incident, she went to Wentworth Park for a children's birthday party. She was with her friend Jade Honner. She saw the defendant there with a man named Mark Braslin. She talked with Mr Braslin's daughter. Mr Braslin and the defendant came to where they were, and Mr Braslin asked how Matthew (the plaintiff) was. She said he was doing the best he could and Mr Braslin then introduced the defendant. Her evidence continued:

"Atileo starting telling me about what had happened with Matt and that he'd wished me that Matt - like, that Matt was going to pull through, everything was going to be okay. And yeah, he just went on telling me about what happened with the incident and that he tried to defend - that he used the force that he did to defend himself because he had been bottled or stabbed in the back by someone a couple of weeks prior to it, and then I just said, 'I don't want to hear any more,' and I just walked away."

1. She was asked by the plaintiff' counsel if the defendant said anything about what had happened, or what he had felt just before the incident. She replied:

"No, he just said that he thought that Matt was aggressively drunk, that Matt was going at him - he thought that Matt was going to go at him, and that's what had happened. He reckons Matt was mouthing or something to him, which is - I just said I didn't want to hear any more and walked away."

1. Ms Barber was then asked about whether she had made a statement to the police. A statutory declaration made on 12 August 2014 is in the tendered bundle. (This, she later said, was made about a week after the alleged conversation.) She was shown a copy in order to refresh her memory, and after reading it, asked if it refreshed her memory about what the defendant said. She then added that the defendant had told her that Nick Woodward and Matthew had got into a fight upstairs in the middle of the Club, and that the defendant and one of the other bouncers - she thought Chase Scott - had separated the fight and then escorted Matthew down the stairs.
2. Counsel asked Ms Barber if it refreshed her memory about what the defendant said about how he was feeling "just before the incident", and she further added that the defendant said he thought Matthew was there to start arguments and fights, felt bad for what had happened and he wished Matthew all the best. Later, still in evidence-in-chief, she was again asked to refresh her memory from the statement as to anything the defendant "might have said as to how he felt just before the incident." Ms Barber then replied she recalled the defendant telling her that Matthew had left his jumper inside; that Mr Scott made a comment to Matthew which had made Matthew a bit angry, that Matthew had come back and apparently swung a hand at the defendant but it did not connect, and said the defendant went on to say "that's when he lost his cool because he thought Matt might've had something sharp with him - something like that. He was just protecting himself, defending himself so he swung, he hit back at Matt. He did not recall what hand it was that he used."
3. In cross-examination, Ms Barber agreed that her mother contacted the police on her behalf about a week after the alleged conversation. She thought it was important to speak to them but said she did not contact them immediately because she was overwhelmed, and was "in there with Matt" trying to make sure that he was okay. She said that it just then got the better of her and thought it was possibly important that piece of information that the police should know. She agreed that it was important to tell the police because if what the defendant had told her was true; she had evidence that it was he who in fact assaulted Matthew. She also agreed that she had seen the video of the incident not long after it happened.
4. Ms Barber's statutory declaration asserts that both Mr Braslin and the defendant said the defendant was not going to be charged, but in evidence Ms Barber said she had not read that before signing; it was not the defendant who said those words, it was Mr Braslin. She said he told her the defendant had said to him he would not be getting charged because he thought it was the plaintiff's fault. Her evidence was that the defendant told her Matthew was going to be charged for hitting him first.
5. In the statutory declaration she states that she told both men she found Matthew being charged for hitting the defendant very hard to believe, considering Matt was in bed and the defendant "was standing, talking etc". When asked about this Ms Barber corrected it, saying she did not say that to the defendant, but only to Mr Braslin.
6. She disagreed with the propositions that she had not spoken to the defendant at all at Wentworth Park; that he was simply not there with Mr Braslin. Counsel asked her whether she was aware that Jade Honner had made a subsequent statement to police saying that Fale was not there. Ms Barber said she disagreed, that Jade was on the phone for quite some time and that "she was not around when we were talking to Fale." When directed to the terms of the question, Ms Barber said that Ms Honner was there at the time she made hers - they lived together at the time - but did not tell her she had told police that Fale was not there.
7. A statutory declaration of Jade Honner made on 15 August 2014 - three days after the date of Ms Barber's - is in evidence. She says she knew the 'bouncers' at the Club including Mr Scott and the defendant. She agreed she was at Wentworth Park in early August 2014 with Ms Barber. Her version of events differs and is as follows:

"As we were walking back to the car Christy pointed out Mark Braslin's car parked nearby .... Mark was standing next to the car and asked Christy how her brother was. ... Christy was talking to him. I was on the phone so I did not pay much attention. I was playing with the kids as well and did not see Farley [sic Fale] at the park and Christy did not mention to me that Farley.[sic] I was not present for a conversation with Mark, Farley and Christy at any time. I haven't spoken to Christy since we were at Wentworth Park together and she hasn't mentioned anything about a conversation she had with Farley to me."

1. In his evidence, the defendant said he could not remember whether he was at Wentworth Park within a few weeks of the incident, and specifically denied speaking to Mr Braslin there, adding that he not spoken to anybody about what had happened.

1. The defendant gave unchallenged evidence of the prelude to the incident in accordance with what I earlier set out. I will take up his evidence at the point where the plaintiff was taken outside from the Club by Mr Thorne and him. The defendant said that he told the plaintiff to go and enjoy his night somewhere else. At that point the plaintiff was screaming, swearing and carrying on. He walked to the other side of the road still swearing. When he reached the other side he punched a road sign and then made his way back. He told the plaintiff not to be silly after which Mr Woodward intervened and there was a mutual pushing. The plaintiff walked to his (the defendant's) left "and that is when he swing a punch to my ear, to my left." He said it connected, and he continued:

"I feel a little bit tingle. And I put a lot of force, when I pushed him. I pushed him [with the right hand] on the bloody [left] shoulder. And so, I pushed him, I realised Matthew was falling back... [Interrupted]."

1. When asked to resume the narrative, he was asked what he was thinking at that stage; that is before he pushed him. The defendant said that when he was hit, all he could think of was the need to "protect" himself; the need to "defend" himself.

"So, I pushed him away from me, and by the time I was trying to grab him when he fall back, it was too late. It just happened in, in a second....I used my left hand trying to grab him, but was to late, because I - as I pushed him, and I was trying to - I realised, because I am on the top, on the, gutter. I stepped down, as well, at the same time when I was trying to grab him, and I actually fell on him as well."

1. He said that he did not fall really hard on the plaintiff. When asked what he did as he (the defendant) fell he answered:

"All I do, is I bloody pushed him - as I pushed him away from me, I tried to grab him with my left arm, my left hand. That guy was - so, I fell on him as well. I didn't even fall, fell, fell completely on him. I was literally, like, no time to brace myself off him. And I got up, and the security guard [Ryan Thorne] said to me, 'you gotta go, go back to the door' so, I have to walk back to the door in that time."

1. He recalled giving a statement to police but when asked whether it was on 19 July, he could not say; he could not remember. Apart from speaking to the police during 2014, he had not discussed the matter with anybody else. He does know Mark Braslin but has not discussed the incident with him. He denied having said to anybody that he had 'lost his cool' adding that he would usually say something like "I lost my shit". He said that he had never been stabbed in the back with a bottle nor that he had to separate the plaintiff and someone else earlier in the evening when they were fighting upstairs in the actual Club. He was confident that the plaintiff did not talk about having left a 'jumper', but about leaving a 'jacket'.
2. In cross-examination, the defendant confirmed that he had no memory of when he made his police statutory declaration. When it was suggested to him that he had gone to the police station with Mr Thorne about an hour or so after the incident, he still could not remember. He later said he could not remember where he was when spoke to the police except that it was not at his home. In response to the suggestion that when he finished work on the morning of 19 July he knew the plaintiff was likely to have been seriously injured, he said that he did not know the plaintiff was going to be in that situation. He agreed however, that he saw the plaintiff on the ground and he was unconscious. The following exchange immediately followed, and is one on which the plaintiff heavily relies:

"And you noticed that he was unresponsive when he was taken away in the ambulance, didn't you?......No, I didn't remember him being taken to the ambulance, like I said. I walked back to the door and I stand there because my mind was bloody going a hundred mile an hour. I couldn't remember what actually was just happening. And I couldn't speak to what's happening. So I have to walk away from it. Like, Ryan Thorne told me to go away, to walk, go back to the door, so I did. And then I couldn't remember what's happening after that, to be honest.

You couldn't remember what had happened before it either. Is that what you're saying? You couldn't get a picture of it?......Sorry? Sorry?

You couldn't get a picture of what had just happened. When you were back at the door, you couldn't get a picture of what had happened in the altercation?......Yep. Yeah.

That's correct?......Couldn't remember what happened, what was happening.

You couldn't - I meant, to make sure I'm getting a direct answer from you, Mr Atileo - you couldn't remember what had happened in the altercation when you were back at the door, could you?......No.

You're agreeing with that proposition?......I would say yes."

1. The defendant was taken through his statutory declaration that in fact was made to police on 19 July 2014. That statement contains a description of the two males pushing each other - which is obviously the confrontation between the plaintiff and Mr Woodward - and on its face contains a different version:

"The male has walked to my left rear and then turned towards me and punched me to the left cheek with his right hand. I tried to grab the male to stop him hitting me again and the male was walking backwards to get away from me. He took approximately 3 steps backwards before tripping over and he looked like he hit his head. The male stopped moving, so members of security went to provide first aid. My manager called an ambulance which arrived seven-eight minutes later. During this time security were doing first aid and trying to wake the male up. ... I wish for the male to be charged and I am willing to attend court in relation to this matter." [My emphasis]

1. It was put to the defendant he knew when he spoke to the police, that if he said he pushed the plaintiff pretty hard, there was a real prospect he might face a prison sentence. His answer was that all he did was push the plaintiff. He said he remembers "... all those things what was happening"; he remembers "everything" but he repeated he could not remember when he gave his statement to police; what day it was. After some clarification for him of what the question meant and being given the opportunity in an adjournment to familiarise himself with the statement, his response to the question was, "I would say that I would stick with my - what I said, or what happened, what I did on that night. I actually pushed the male." Under continued cross-examination about this issue, he maintained that he told police that he pushed the plaintiff away from him and was trying to defend himself.
2. In evidence is a statutory declaration from Constable Sarah Morris dated 23 July 2014. She arrived at the scene with another uniformed officer at about 00:45. She states she spoke to the defendant who informed her that the plaintiff had been ejected due to intoxication and had been escorted out of the premises by himself and another security guard. Const Morris' statement asserts the defendant told her the following: the plaintiff walked away across the road before turning around and coming back, the plaintiff had "scruffed" a male who was standing on the footpath before coming at him and punching him to the side of the head and he had pushed him away to stop him punching him for a second time; the plaintiff stumbled back from the push, attempted to come at him again, but lost his footing on the kerb of the footpath causing him to fall backwards and hit his head on the concrete.
3. The defendant was asked in cross-examination about speaking to a female police officer outside the Club shortly after and whether he had said the things asserted by Const Morris. He said he could not remember "at all' speaking to any female police officer outside the Club shortly after the incident.
4. In further cross-examination it was put that he punched the plaintiff, but he maintained a push not a punch, saying he pushed the plaintiff as he did not want to get hit again. He was trying to defend himself so he pushed him away; he did not punch him. The defendant said that he had not seen the video when he made his statement to police. It was put to him he was attempting to fashion his evidence to fit in with the video, and he said that all he remembered was pushing the plaintiff and trying to grab him, nothing else. It was suggested that he swung with a clinched right fist which hit the plaintiff in the left eye. His answer as transcribed is "That's true", but a check of the audio recording clearly reveals he said, "That's not true."
5. Ryan Thorne made two written statements on the night about what he had seen. First, in evidence are some pages of the "Register of Crowd Controllers" which was kept on the club premises and had to be completed by each person for each shift. Its purpose was for the crowd controllers to note the detail of incidents that had happened during their shift. Mr Thorne has noted his start time as 00:30 with his finish time at 04:00. After describing the search for the jacket and him getting punched in the face, his description turns immediately to what happened outside. The notes read:

"The male then scruffed another male and pushed him at me whilst doing that he attacked Fali (sic) punching him in the face...(illegible)... . Pushed him away the male charged him again and slipped on the gutter causing him to fall backwards hitting his head on the ground... I parchily (sic partially) observed this whilst dealing with the male that was scruffed and pushed into me."

1. Mr Thorne also made a statutory declaration to police on 19 July 2014. He relates events leading up to the plaintiff's ejection from the Club, as I have previously related. After describing the ejection, he states he then observed the plaintiff scruff another male who was standing on the footpath. He said that he was standing behind the male who got 'scruffed' and he was pushed by the force of what happened.
2. His statutory declaration continues:

"I have caught the male who got scruffed and was dealing with him making sure he was okay. The male has then headed towards Faleupolu who was standing on the footpath just near the male he had scruffed. The male has rushed at Faleupolu in an attempt to grab him, I am unsure if he got hold Faleupolu or not or whether he has hit Faleupolu. I did not get a full view of what happened next because I was still dealing with the other male that got scruffed but I saw the aggressive male fall back on to the street and he had hit his head. I am unsure if the male and Faleupolu had gotten into an altercation after the male grabbed Faleupolu. From what I saw I think the male tripped over the kerb, has lost his footing, after attempting to have another go at Faleupolu." [My emphasis]

1. In the statutory declaration, Mr Thorne states that he and the defendant then went over to the plaintiff to check on him, at which time he was not very responsive. He and the defendant moved him to see if he was conscious and saw blood on the back of his head. They then placed the plaintiff in the recovery position, applied paper towel to the wound on his head and called the ambulance.
2. In his evidence-in-chief a further version emerged. Mr Thorne said that after they removed the plaintiff form the Club he (Thorne) did nothing; his job was done and he believed he remained outside. He believed the defendant also stayed out the front but he could not really remember. When asked about the plaintiff's movements, he "thought" he walked across the road. He went on to say the plaintiff came back, and continued:

"He walked up to Fale, had an altercation with Fale - I wasn't really looking at it. I didn't catch the - the whole incident I just seen both of them - the male and Fale sort of fall over, I guess you could say.

And what did you do then when you saw that?......I - I ran to it.

And Matthew was where at this point?......Oh sort of - oh -

Was he on his feet?......No, no, he was on the ground, yeah.

Okay, and what did you do, if anything, in relation to Matthew?......He wasn't responsive, so we - oh, when I say 'we', I mean 'me', I - I think there was like a - a car there and it was sort of trying to get around us, obviously that's quite a dangerous position for any of us to be in, so I - I - we attempted to sort of move him a little bit to make it safe for us and then we - I tried to wake him up, because obviously he wasn't responsive, and obviously wasn't [indistinct words] so we - I rolled him into the recovery position, obviously we'd -I'd instructed a co-worker, I believe, to call an ambulance."

1. In cross-examination, Mr Thorne was shown the video and taken through it in various segments. He agreed that he was on the move towards the plaintiff and the defendant after the defendant was hit. After talking about the aftermath and the ambulance arriving, he agreed with the proposition that it was "a pretty serious incident; a man had been seriously injured". He could not remember having discussions immediately after the incident about what had happened, but said that he was pretty sure they both went to the police station later that night, or at least not long after the incident.
2. After being shown his statutory declaration and being reminded of what the video shows, it was put to him that it was not the case that he was dealing with the "other male" at the time of the altercation between the plaintiff and defendant. He answered, "Well, looking at the footage now, I would say that it happened very quickly....so I still would have been possibly keeping an eye on that man, or, you know sort off to the background with him." He agreed that it appeared to be the case that he had pole position on what was happening between the two, after which the following exchange occurred:

"What I want to suggest to you, Mr Thorne, is that it's not that you didn't see what happened next. You did see what happened next and you saw Mr Atileo punch Mr Leonard in the face with a clenched fist. That's what I'm suggesting to you?......Okay.

That's what you saw. I'm suggesting that's what you saw?......Well, you can suggest that. I don't remember seeing that.

Well, you'd agree, wouldn't you, that you weren't dealing with the male you say you were in your statement. Do you agree with that?......Yes, I agree with that.

And you'd agree, wouldn't you, that, if you were to tell the police that Mr Atileo had punched Mr Leonard in the face, Mr Atileo might be facing some serious charges? You'd agree with that, wouldn't you?......I would agree with that, yes.

Because that's what happened, wasn't it, Mr Thorne?......Like I said, I was not directly looking at it.

Do you recall the - let's say the, I showed you a little bit of it, but do you recall the lead-up of the sort of seconds, tens of seconds, in the lead-up to that altercation? Do you have a memory of that?......Not really, no."

1. He went on to confirm that he could not remember whether the plaintiff hit the defendant or not. He later said that immediately after the incident he told the defendant to go away or words to that effect. It was suggested to him that he did so because he disapproved of the defendant's conduct to which he answered, "In the height of it, I don't really remember why." He agreed with the proposition that there was no reason to dismiss the defendant unless he had done something unhelpful. In terms of the aftermath, he agreed that it was him and Mr Scott who was looking after the plaintiff on the ground, not him and the defendant.
2. Mr Thorne was taken to that part of the statement in which he said the defendant pushed the plaintiff away, who then charged at him again and slipped on the gutter causing him to fall backwards. He agreed that that was not an accurate account of what had happened, having seen the video. When it was put to him that he did not see what happened immediately before the plaintiff fell to the ground he said:

"Yes, I didn't really - I am trying to explain myself, when you have quite a few people around you, there is a lot of music going on, it is loud, you are looking at 100 different places. You are not fixing on one."

1. As to his account of what happened, Mr Thorne agreed that it was just his best guess, saying that is how he perceived things at the time.
2. Samantha Mead (then Webb) made a statutory declaration to police on 29 July 2014. Ms Mead says she and her friend, Jessica Calleja, flew to Hobart from Melbourne on the Friday. That evening they met Jacqueline Murkins and went out to socialise. They met up with a local man by the name of Ben who none of them had met before but joined the group. They went to the Club. Ms Mead described the behaviour within the Club of a man - undoubtedly the plaintiff - who was generally being a nuisance. She said that they all went downstairs and went outside to have a cigarette.
3. She describes the plaintiff being told to leave, then being on the traffic island yelling out, and then returning towards someone she described as "the short bouncer", who is undoubtedly the defendant. She says the plaintiff swung a punch at him but she was not sure if he managed to strike him. The bouncer blocked the punch and pushed him back, and told him that he needed to leave. The defendant pushed the plaintiff with both hands using about 7 - 8/10 pressure and the plaintiff appeared to fall backwards over his own feet.
4. Ms Webb's evidence is generally in accordance with what she told police on 29 July 2014. In evidence, Ms Mead identified from the video who was standing where. The group was standing between the umbrellas and she had her back to the Club door facing out to the roadway. Ms Murkins was in front of her with her back to the road, Ms Calleja was one her right and Ben was on her left. She said she saw the plaintiff outside. He was told by a security person to leave and became irate. He walked away, headed across the road through traffic and was stumbling around. He came back "later", looking very aggressive, and approached a security person - undoubtedly the defendant. The plaintiff was very aggressive. She did not hear any words exchanged.
5. She said the plaintiff was asked to leave, "and then he took a swing at the bouncer". She did not see whether any blow connected. She said the bouncer then pushed the plaintiff, the plaintiff then stumbled back a bit and tripped over and hit the ground. The force of the push was about a seven or eight on a scale of one to ten.
6. In cross-examination, she confirmed that the push by the defendant was a push with both hands. After the slow motion video was played to her, it was suggested that the push with two hands was a mistaken belief, and in fact the defendant punched the plaintiff with his right hand. She replied "it looks like it from that. I still find it difficult to sort of tell....with that footage, yeah....yeah, it looks like it from that, but yes, from what I can tell - ..." Ms Mead was interrupted and reminded that it was really what her memory was and not her interpretation of the video that was important. She said from her memory, it looked like a push.
7. Counsel also suggested to Ms Mead that she was mistaken about the plaintiff having tripped; that in fact, he has fallen backwards from the force of the blow. She said that she thought it was a combination of the two. Ms Mead had no recollection of there being "another woman" close by - obviously the questioner was referring to Ms Jenkins. She acknowledged there was quite a bit going on, some of which possibly affected what she saw, and when it was put that she might not have had the best vision of what occurred, she replied, "Possibly."
8. Jacqueline Murkins' statutory declaration and evidence coincided with that of Ms Mead in relation to the events leading up to the incident, including the plaintiff's drunken behaviour in the Club. As to her statutory declaration, it is necessary to set out quite an amount of it. After describing how the plaintiff was ejected she says the plaintiff would wander off and then come back and try to get back in to the Club; this happened a few times. She says he appeared to have a female friend with him who had long brownish hair and was wearing all black pants and a shirt. He "also had a male there who was backing him up saying for the bouncers to let him in." Ms Murkins could not describe him. She says the 'bouncer', who is undoubtedly the defendant, kept telling the plaintiff that he had to leave.
9. She saw another male who was a member of the public, (undoubtedly Mr Woodward), try to tell the plaintiff to leave but this irritated him and he started throwing punches at him; "He was swinging punches at him and the bouncer but he could not hit anyone because he was too drunk and he would stumble and then have another go."
10. Ms Murkins says they decided to move back onto the footpath to stay out of the way. The statutory declaration continues:

"He also had a go at the Islander bouncer again and then went to walk off, but came back again and went for the bouncer, swinging punches which didn't appear to connect, or at least nothing noticeable enough for me to believe that he had hit hard. The Islander bouncer tried to restrain him by holding his hands out in front to block his arms from swinging and to prevent him from punching out. The bouncer let him go again as he just made him more aggressive. He came back at the bouncer again and tried to hit him and the bouncer pushed him to the chest. It was not a forceful push at all, but he stumbled backwards over his own feet. The push happened on the footpath and he stumbled backwards into the car park area and fell onto the roadway, ...."

1. In evidence, Ms Murkins explained that when the group went outside for a cigarette, she stood facing the Club building, with her back to the roadway, Ben was on her right, Ms Calleja on her left and Ms Mead facing her. She saw the plaintiff who "had obviously been kicked out and was yelling and carrying on about trying to get back in to the point where he had then left and then came back to try to get back in again." She did not see where he went to in the meantime but he "kind of disappeared, and then he came back in over my like right shoulder." The witness went on to say:

"He was quite argumentative with the bouncers and was adamant about getting back into the night club. It was quite loud, lots of swearing and carrying on and at one point there was people in the queue that were adamant that he wasn't - like, 'Mate, you are drunk, you are not getting in' situation. There was a lot of yelling and things by him where you know it got quite aggressive. And then he, you know, a couple of times tried to attack the bouncers.

And then what happened?..........So then what happened - basically what had happened is that he was told to go away, he wouldn't go, and he then tried to attack one of the bouncers. And then the bouncer, from where I was standing, it appeared to me if he put his arm up to stop him from hitting like, like the bouncer had put his arm up to stop him. And then kind of liked bounced off him and then like fell off like and stumbled a couple of bit [sic] and then fell off on to - off the actual gutter and on to the pathway where the cars where.

And did you see that man attempt to hit the bouncer?...........Yes

Did you see the bouncer attempt to hit him?..........No."

1. In further evidence the witness said she was in Hobart organising a three day conference from the Monday. She was working setting up things on the Monday, when she either heard on the radio or saw something on television about "a king hit on the Friday night". She thought to herself that this was at the night club she was at, but it was not a king hit. She thought it might have been the plaintiff's mother on the TV. She spoke with a colleague who said to her that if that is not what she remembered, she needed to talk to police. Accordingly she went to the police station and made a statement.
2. The slow motion video was played to Ms Murkins in cross-examination. Counsel put that she would have had to turn around to see the whole incident and suggested the video showed she did not turn until the plaintiff was on the ground. She said she did turn around and could see herself in the video "turned around"; she remembered seeing "pretty much the entire thing". It was suggested that the defendant punched the plaintiff with his right fist before attempting to punch him with his left fist. Ms Murkins agreed that "from that angle" it looked like that was so, but said that was not her recollection. She did not accept that she might have been mistaken about what she saw.
3. For completeness, I will briefly mention the relevant parts of the statutory declarations of people who did not give evidence. Chase Scott made a statutory declaration to police on 21 July 2014. He describes the plaintiff pushing away a male known to him as 'Nick', after which they ushered the plaintiff away. He states that the plaintiff "came at [the defendant] and hit him to the left side of the jaw"; the defendant "then went at the guy to restrain him and I saw the guy fall backwards onto the concrete." [My emphasis]
4. In his statutory declaration of 21 July 2014, Mr Meaclem said he saw the plaintiff walk off a little about half way onto the road and then came back really aggressively. He ran really quickly up to Fale, and hit him on the chin. He did not see what sort of hit it was, or with what hand. He saw Fale's head go back and him turning away sightly before coming back and pushing the plaintiff backwards with both hands to his upper body. The plaintiff stumbled back a little and Fale followed him trying to grab hold of him. The other guards also tried to get hold of him before he fell backwards.
5. In his statutory declaration of 22 July 2014 Mr Ma'afu said the plaintiff walked back to Fale and was "carrying on". The defendant tried to hold the plaintiff away from him and told him to move on. At that stage the plaintiff raised his right hand and punched Fale to the jaw with a fist. Fale straight away pushed the male back, but did not see where he pushed him. The plaintiff took about two steps backwards and fell straight back and hit his head on the concrete. As soon as this happened two other security officers ran over to assist.
6. Staying with the security officers for the moment, Anton Bartulovic was a paramedic in a second ambulance which arrived at the scene. That was at about 00:57 hours. After the ambulance was parked, he and his partner started walking to where the first ambulance was. On the way he passed one of the 'bouncers' and asked what had happened. The answer was, "Don't know, we did not see anything, we found him on the road. He could have tripped or been run over". Mr Bartulovic gave a description, which along with video, gives rise to the suggestion that this was Mr Scott. Accepting what Mr Bartulovic said is correct, I think that is a fair observation[2].
7. In her statutory declaration of 22 September 2014 Jessica Calleja described the plaintiff walking out on to the road looking quite unsteady on his feet and then returning. He walked up to the bouncer and raised his fist but at that point she looked away as she dislikes violence, and she did not see what happened. When she looked again the plaintiff was on the ground in the middle of the road and not moving. I do not have any information about "Ben" who was with her group, but a fair inference is that he was not able to be identified by investigating police. The statement of Nicholas Woodward reveals that he did not see what happened between the plaintiff and the defendant; by then he had his back to them and was only alerted to something happening when he heard his sister (Ms Jenkins) scream and yell.

1. For reasons I will explain, I find that the defendant punched the plaintiff rather than pushed him, and the punch connected with his face. Of course, in assessing the witnesses, I have the benefit of previous statements made by them and comparisons between what they say and what is clearly visible on the video.
2. Of the witnesses I prefer the evidence of Ms Jenkins. In contrast to the others, what she said in evidence is consistent with what she told police that same day, and is corroborated by what can be seen on the video. It was clear that she was a little anxious and unsettled in the witness box; she became upset at one point in cross-examination to the extent where I adjourned for a short break, and she sometimes had difficulty expressing herself clearly. However, her demeanour was not the subject of criticism.
3. Ms Jenkins was the closest to the incident apart from Messrs Thorne and Scott. As will be recalled, counsel for the defendant put to Ms Jenkins an interpretation of her movements, the short point of which was that she was not looking in the plaintiff's direction at the time he struck the defendant, and then could not see what followed due to Mr Scott obscuring her view. She rejected that suggestion. The defendant relies on a detailed analysis of the video to support the contentions, arguing on that basis that "Ms Jenkins could not have seen the punch delivered by the plaintiff or the beginnings of the defendant's reaction. By the time she turned to see the action, her view was obstructed by Mr Scott."
4. The defendant did not argue that Ms Jenkins reconstructed her evidence based on her viewing the video. Her answer that she told police what she saw before watching the video, but before signing the declaration seems to have been accepted. In fact, senior counsel for the defendant said in closing, "I have no idea how she reconstructed her memory of this event, but she couldn't possibly have seen [the plaintiff punch the defendant] or know anything about whether it connected or not. She would have had to have been told about that."
5. For my part I cannot agree that the video supports the defendant's contentions. In my view, it supports Ms Jenkins' evidence. From CCTV footage of upstairs in the Club and from the critical video it is clear that on the night Ms Jenkins had long hair tied in a braid, or similarly arranged, and worn over her left shoulder. She was also carrying a coat over her left arm which she has not abandoned at any time she appears. Her general physical appearance does not change. When outside, although the video lacks clarity, her left side is readily discernible from those features. It is that which shows she was facing the plaintiff and the defendant at the time the plaintiff hit the defendant having completed a turn after her brother had retreated.
6. I regard Ms Jenkins as a reliable witness. It is possible that her view of the altercation was obscured for an instant but there is no reason to doubt that she saw the things she said she did. It is important to note that she had good reason to follow things as they unfolded. The plaintiff had just had a physical confrontation with her brother, who were known to each other. She effectively ran to where they were and remained in the immediate area even though Mr Woodward had gone back to the door. Afterwards, she stayed very close - to one extent or another - to where the plaintiff was on the ground, and at times took a close interest in what was going on with his care. There is nothing to compel the conclusion that Ms Jenkins is an honest but mistaken witness.
7. The defendant submits that no other "witness" supports Ms Jenkins claim that the defendant delivered a punch, saying that the police statements are all consistent with a push, or an attempt to restrain the plaintiff. Included in the analysis of the "witnesses'" evidence are the statutory declarations of Messrs Scott, Meaclem and Ma'afu, none of whom were called. The submission is also a little disingenuous in that of the three people in the immediate vicinity who must have had the clearest view of what had happened - Messrs Scott and Thorne - only Mr Thorne has ever said that he saw the defendant push the plaintiff - and that statement was only contained in a brief note in the Crowd Controller Register. I will come back to his later statements. I will also come back to the other matters relied on by the plaintiff. As to the submission generally, I simply say that the exercise is not an empirical one; the question is the quality of the evidence.
8. As to the defendant's evidence, in making an assessment I think it is proper to make due allowance for some things that were obvious. Meaning no disrespect, he is a Pacific Islander and seems to have had difficulty expressing himself in English. His language was often a little unusual. He sometimes struggled with syntax and the proper tenses of verbs giving rise to a risk of sometimes being misunderstood. As to the need for care in this situation see Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187, 66 NSWLR 186 at [21]. Further, the defendant was obviously uncomfortable in the court environment, much of which discomfort can be attributed to nothing more than the usual form of anxiety experienced by many witnesses giving evidence. All things considered, I did not find his evidence to be persuasive. To a large extent, my inability to accept his evidence follows from the impressions I formed from the video. It also arises from inconsistencies between statements he made out of court and with his evidence.
9. As to that last point matter, first there is the statutory declaration of Constable Morris. It is hearsay and I warn myself accordingly, but statements attributed to the defendant were put to him and I have the benefit of his answers. It will be recalled that he said he did not remember speaking to her. There is nothing inherently implausible about Constable Morris' statement and it should be given due weight. It will be recalled the defendant told Constable Morris that the plaintiff stumbled back from his push, attempted to come at him again but lost his footing causing him to fall backwards. The video clearly shows the last two parts of that description not to be true.
10. Next, in his statutory declaration, he said in effect that after being punched he tried to grab the plaintiff to stop him hitting him again while the plaintiff was walking backwards to get away from him, taking approximately three steps before tripping and apparently hitting his head. Here, there is a grabbing at the plaintiff and not a push, and to the extent it is of significance, a deliberate retreat and a trip and not a stumble backwards and a fall. Next, in evidence and for the first time in these versions, there emerges a "forceful" push, and an attempted grab while the plaintiff was falling.
11. I must say I find it a little difficult to accept that if the defendant acted as he says he did; if he merely pushed the plaintiff who fell backwards as a consequence and hit the roadway- why he would not have stayed close by to attend to or monitor his wellbeing. The defendant seemed to claim in cross-examination that he did not know of the seriousness of the injury until much later, but that the plaintiff was in a fairly parlous state would have been clear from what was happening. He knew, or must have known, other people were tending to the plaintiff on the ground, that he was bleeding and that an ambulance had been called. Even if he had been told to go away by Mr Thorne, it is likely he would have been more solicitous about the plaintiff's state than appears to have been the case from the video and from his evidence.
12. The plaintiff relies on what counsel described as a "glaring admission". The relevant extract is set out in par [66] above. I think care needs to be exercised in assessing the weight to be attributed to this answer because of the defendant's language issues, but the exchange does tend to suggest that he immediately had difficulty recalling or realising what had just happened. Along with his various versions, it might well suggest he has real difficulty in recalling the detail of the incident.
13. At best, I am satisfied the defendant has no real recollection of events and his evidence is a reconstruction perhaps putting himself, as often occurs as a matter of human nature, in a better light than the reality. It might even be that he has persuaded himself that it was a push not a punch. At worst, the defendant knows what happened and is not being, and has not been, frank about things.
14. The evidence of Mr Thorne does not assist the defendant's case in any way. I say that for two reasons. First, he did not actually say in evidence, nor has previously said, that he saw what happened and saw the defendant push the plaintiff and then seem to try to stop him falling backwards. Second, in any event, I think he is an unreliable witness. I have set out above some passages from his evidence which indicate to me he was being careful with his answers and at times evasive. In the absence of evidence of collusion, no adverse inference can be drawn against the defendant but Mr Thorne's evidence is perhaps more about what he did not say than what he did.
15. A good starting point as to reliability is the claim, both in the Crowd Controller Register and his statutory declaration, that he did not see all that happened because he was dealing with the man "that was scruffed" - Mr Woodward. This is in stark contrast to his admission, in the face of what the video clearly shows, that he was in "pole position" to see what happened. And of course, when confronted with the video, he had to admit that he was not dealing with Mr Woodward at the time. It is quite clear from the video that Mr Thorne immediately reacted to the plaintiff moving his arm in order to punch the defendant. I also note his concession that the reason he told the defendant to go away must have been because he had done something "unhelpful".
16. There is also the question of the different versions he proffered. In the Crowd Controller Register, he said that he saw the plaintiff punching the defendant, the defendant pushing the plaintiff away, and the plaintiff "charging again" before slipping on the gutter causing him to fall. In the statutory declaration, he said he saw the plaintiff rush at the defendant in an attempt to grab him and was unsure whether he got hold of him or not, and saw the plaintiff fall back onto the street and hit his head; he thought the plaintiff tripped over the curb and lost his footing after attempting to have another go. In evidence he said that the plaintiff walked up to the defendant, had an altercation with him but he was not really looking at it, and he just saw them both "sort of fall over, I could guess you could say". None of this can inspire any confidence at all.
17. Also of some significance to the reliability issue is that he made a rather major shift from helping the defendant tend to the plaintiff after the incident - as asserted in his statutory declaration - to giving evidence that it was Mr Scott who helped him tend to the plaintiff, and that he had told the defendant to go away. In addition, his police statement asserts that "they" - that is, the defendant and he, but he does not reveal who - called the ambulance, but his evidence was that a co-worker did at his request.
18. Next, I regard both Ms Mead and Ms Murkins as honest but mistaken witnesses. Both appeared quite confident in the witness box and gave their evidence in a clear manner. It is of note that Ms Murkins felt obliged to go to the police after seeing the news report which conflicted with her recollection. But a number of things trouble me.
19. First there is the position the two women were in at the time; Ms Mead had Ms Murkins in front of her so her line of sight must have been obscured to one degree or another for much of what happened. In fact, she conceded the possibility that given her position she did not have the best view of things. On the video Ms Mead can be seen moving her torso sideways in order to look around Ms Murkins when the plaintiff and the defendant have fallen to the ground. She did not recollect Ms Jenkins - who is prominent in the video - being close by.
20. Ms Murkins generally had her back to Salamanca Place at all times and would have had to turn her head at quite an angle to her right to see the defendant make contact. Notwithstanding Ms Murkins' evidence about her view, the plaintiff submits that the video in fact shows the following:
    • Ms Murkins had her head turned to the right just before and at the time of the exchange between the plaintiff and Mr Woodward.
    • She turned her head back to the left to face Ms Mead at 00.33:55 (on the video) when the plaintiff is behind her in the car parking space.
    • She turned her head back to the right at 00:33:57 at which time the line of sight to the protagonists in the car parking space was largely obscured by Thorne and Scott.
21. After carefully looking at the video on a number of occasions on this point, I have to generally agree with the submission. I would have to allow for the possibility that even when on the video Ms Murkins' head appears to be facing the Club and not looking to her right, she was able to have some view of what was happening. But it seems clear to me that she could not have had a clear view at all times of all that happened.
22. It is very difficult, if not impossible, to reconcile what Ms Murkins says in her statement made about four days after the incident and what is clearly shown on the video. An inability to see, or inattention on Ms Murkins' part, may be borne out by the following demonstrable discrepancies:
    • There was no female with black pants and a shirt trying to assist the plaintiff in his attempts to re-enter the Club, nor any drunken male "backing him up". The Mead/Murkins group was already outside when the plaintiff was ejected. Ms Jenkins and Mr Woodward can be seen coming in and out of the picture to the very left, just to the left of the Club door. The only other people in the picture from that time until the actual incident were crowd controllers.
    • At the time of the altercation with the "civilian" (Mr Woodward), the plaintiff did not throw punches at him, nor at a bouncer, missing, stumbling and "having another go".
    • The Mead/Murkins group did not step back onto the footpath to stay out of the way just after the Woodward altercation. Its position did not change for the entire time they were shown on the video until they went back inside after the incident.

• The plaintiff did walk a short distance away before coming back to where the defendant was, but that was not after "he had a go at the bouncer again", and he did not then swing punches at him.
• The defendant did not attempt to restrain the plaintiff by holding out his hands to block the plaintiff's arms from swinging, and then let him go again.
• The defendant did not put his arm up to stop being hit.
• The plaintiff was not on the footpath when the defendant made contact causing him to stumble into the car parking space; he was already in it.

1. As to Ms Murkins' evidence, she did not actually say she saw the defendant push the plaintiff to the chest, as she had told police. She described a quite different occurrence; a defensive gesture of putting up his arm at which point the plaintiff "kind of like bounced off him and then like fell off and stumbled ... ". She made no mention of the female and the drunken male who were supportive of the plaintiff, but did say there was a queue to get into the Club, some people in which were telling him he was drunk and would not get in. However, the video shows no queue or other people who may been talking to the plaintiff.
2. To an extent, the plaintiff also relies on the rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 in relation to the defendant's failure to call Chase Scott, given that he would have been in "prime position" to see what happened. (It will be recalled that in his statement to police Mr Scott made no reference to the defendant making any contact with the plaintiff; he said he saw the defendant "go at" the plaintiff.) In written submissions, the plaintiff argued that I could infer his evidence would have been "destructive" of the defendant's case. No explanation for the failure to call Mr Scott was given and the plaintiff says he was not called because he had lied to the ambulance officer, Mr Bartulovic, about what had happened: see par [97] above.
3. In oral submissions, the defendant strongly asserted that the rule did not apply because the plaintiff had the onus of establishing Mr Scott's availability and had not discharged that onus. That is not the law: see for instance Smith v Samuels (1976) 12 SASR 573 at 581; Cubillo v Commonwealth (No 2) [2000] FCA 1084, 103 FCR 1 at [356]; The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239, 39 WAR 1 at [1010]; Lim v Cho [2018] NSWCCA 145 at [41]; McMurray v AIG Insurance Australia Ltd [No 5] [2021] WASC 300 at [361].
4. Nor is it the law that if the rule applies, the trier of fact can infer that the evidence would in fact have been damaging; it only entitles an inference to be drawn that the evidence would not have assisted the party who might have been expected to call the witness and did not: Jones v Dunkel at 308, 312, 320-321; Brandi v Mignot [1905] ArgusLawRp 145; (1976) 12 ALR 1 at 59-60. It entitles the trier of fact to take the failure into account, and can allow evidence that might have been contradicted by the witness to be more readily accepted: see Bell Group Ltd (above) at [1004]. The rule will not apply if the failure to call the witness is satisfactorily explained by evidence or is obvious or readily understood.
5. If it applies, it provides a "facility" and does not create an "obligation in the reasoning of the decision-maker": Larner v George Weston Foods Ltd [2014] VSCA 62 at [96]- [97]. Generally as to the rule, see Bell Group Ltd at [1003]-[1022] and J D Heydon, Cross on Evidence, 13th Aust ed at [1215].
6. In any event, Mr Cox for the plaintiff, having expanded the discussion to all three crowd controllers not called, all but abandoned reliance on the rule in the face of the defendant's submission. It was submitted that I could choose the Jones v Dunkel route or the "better and safer ground" of simply attributing no weight to the police statements of the three - Messrs Scott, Meaclem and Ma'afu. I do not see the options put as true alternatives. I have to consider what weight is to be given to the out of court statements tendered by agreement, and also consider what effect the failure to call the witnesses might have.
7. To me, the Jones v Dunkel approach has some attraction. It might be readily inferred that the three crowd controllers were all then employed by the fourth defendant, SL Securities Pty Ltd. In the absence of any evidence of reasons, one would expect them to be available in the defendant's case. That may be particularly so given that Mr Thorne was called. The statutory declarations establish that they have knowledge on the incident and have been able to elucidate events from their perspectives. It is arguable however, that no Jones v Dunkel inference can be drawn because the defendant was a party to the tender of the statements which, potentially at least, shed light on the incident: Singh v Minister for Immigration [2001] FCA 389, 109 FCR 152 at [71].
8. Be that as it may, any inference might arise more so in the case of Mr Meaclem and Mr Ma'afu, both of whom stated to police they saw the defendant push the plaintiff. But it is of note that although Mr Scott said he saw the defendant "go at" the plaintiff (which is generally consistent with the video), at the same time it can be asserted with a fair degree of confidence that Mr Scott was the person who spoke to Ambulance Officer Bartulovic and lied about what happened. (There seems to be no good reason to reject the Bartulovic statutory declaration as untrue or unreliable.)
9. I have regard to the contents of the police statements and what the video clearly shows, and the fact that any evidence from these three men was not given and tested in court. There is good reason to doubt the reliability of much of what is said about the incident. Given the position ultimately taken by the plaintiff, I think the best approach is to take the route suggested. I think it appropriate I attach no weight to the out of court statements.
10. As to the remaining aspects of the plaintiff's case, I cannot be satisfied that the black eye was caused by a blow to the face. It is true, as the plaintiff submits, that it is common knowledge that a black eye is caused by a trauma to the area of the eye. But, as the defendant suggested and as the plaintiff conceded, it is also common knowledge that a black eye can arise from internal bleeding caused by trauma or from surgery to the frontal-temporal area of the head. I earlier set out the detail of the surgery. The lack of expert evidence of the nature of the bruising and its probable cause is telling.
11. In addition, I accept the defendant's submissions if the photo was meant to highlight the bruising of the left eye, one would expect to have been taken from that side. But it was not, and the bruising in the corner of the right eye also raises a question about the cause. There is no explanation from the hospital note of bruising to the left eye and no reason for the photos taken. No facial injury was noted on admission and Dr Gauden in his report to police about the injury and assault being a possible cause, did not mention a black eye.
12. I do not need to resolve the question of the alleged admissions, but I should say something about it. I found the evidence of Miss Barber about this issue to be rather unconvincing; at least, unreliable. There were several times when she had to have her memory of the conversation refreshed by being shown her statutory declaration. I think it is rather unlikely that the defendant, apparently knowing who she was or in the circumstances, would say what is alleged. There is also some merit in the defendant's submission that I can be satisfied on the evidence that a number of things the defendant is alleged to have said are not factually correct and are unlikely to have been said by him.
13. There was no altercation between the plaintiff and Mr Woodward upstairs near the dance floor, nor was it necessary at any stage for the defendant to separate them. I am satisfied that Mr Leonard did not complain about the loss of his jumper but about his jacket, and that the defendant had not previously been stabbed in the back with a bottle. Miss Honner's statement to police may allow for the possibility that the defendant was there and she had not seen him, but even if he was there I think it would be difficult to conclude that he said what is alleged.

1. The parties were ultimately agreed on the applicable law. Section 9(1) of the Criminal Code provides no action can be taken in relation to any act declared by the Criminal Code to be lawful. Section 46 of the Code provides that a person is justified in using, in defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use. The parties agree that it is this section which sets out the requirements for the defence. This was the approach taken by Evans J in Quarmby v Oakley [2011] TASSC 20 at [102], although his Honour did not mention s 9(1).
2. The defendant bears the onus of establishing self-defence: see for example Quarmby v Oakley at [109] and the cases cited, and Dale v Fox [2012] TASSC 84 at [33]- [34].
3. It is well established that s 46 of the Code involves two stages, the first involves a subjective assessment, while the second involves an objective assessment. The section is routinely explained in the following way. The first question is not what a reasonable person in the defendant's circumstances would have thought, or whether there are reasonable grounds for the defendant's belief, but whether the particular defendant genuinely believed that the situation necessitated the use of force in self-defence. And so the first question is whether the defendant in fact believed that he needed to act in self-defence. The second question is whether the force used was reasonable in the circumstances as the defendant believed them to be.[3] This involves an objective assessment but based on the defendant's belief.
4. As to the first question, all of the evidence needs to be considered not just what a defendant asserts. Whether or not there were reasonable grounds might assist in determining whether a defendant in fact held the belief: Beckford v The Queen [1987] UKPC 1; [1988] AC 130 at 144 per Lord Griffiths. But the first requirement of the test may be satisfied even if a defendant was mistaken about the need for self-defence. In assessing the subjective requirement of the test, a court may take into account the person's mental state, whether that person's past experiences inform his or her belief about what conduct was necessary, and what the person knew or believed about the alleged victim: Ray v Southon [2022] NSWCA 267 at 14. That also applies to the second requirement of a reasonable degree of force in the circumstances as a defendant believed them to be.
5. In this case the defendant relies on authoritative comments about the assessment of a person's response said to be in self-defence. In Zecevic v Director of Public Prosecutions (Victoria) [1987] HCA 26; (1987) 162 CLR 645 at 650, Mason CJ set out, with apparent approval, the following passage from Palmer v The Queen [1970] UKPC 2; [1971] AC 814 at 832, per Lord Morris speaking for the Judicial Committee:

"If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken."

1. That passage has often been cited. In this State, it was set out by Green CJ in Connaire v Austin [1988] TASSC 42 at [4]. Before doing so, his Honour said:

"The determination of [the second] question involves the making of a judgment which takes into account all the circumstances of the situation in which the appellant found himself. In making that judgment it must be recognised that the circumstances which entitle a person to act in self-defence are not conducive to the making of a cool considered assessment of the amount of force which is appropriate particularly when there has been provocation and that therefore it is unrealistic to weigh such conduct on 'golden scales' per Richards J in Salor v Klingbiel [1945] SAStRp 43; [1945] SASR 171 at 172." [4]

1. The factual background to the incident that I earlier set out is relevant to this issue as, of course, is my description of the incident and my finding as to the nature of the physical contact. There is further evidence of the defendant that needs to be considered.
2. In evidence-in-chief the defendant described how with his right hand he had pushed the plaintiff's left shoulder, and was then asked what he was thinking at that stage. He replied:

"When he hit me, all I could think is - all I could think is, 'I need to protect myself. I needed to defend myself' so I pushed him away from me, and by the time I was trying to grab him when he fall back, it was too late. It just happened in a second".

1. In cross-examination, after denying that he had swung with the clenched right fist hitting the plaintiff in the left eye and denying that he meant to injure, it was put that in fact he had injured the plaintiff to which the defendant responded:

"Look, at the end of the day, sir, I want to go home safe to my family. This is - I want to go home safe to my family. I have got a bloody beautiful woman at home, so I have to go home. I didn't allow Matthew to hit me again."

1. It was put to the defendant that that the plaintiff was no threat with him weighing about 70 kilograms against the defendant's 100. The defendant did not directly respond but said:

"He was aggression. He punched the sign and he pushed one of - the guy that was there. So, what else do you want me to do? He runned around and bloody punched me in the bloody - in the chin - in the - in the left ear. I can't do it - I have to defend myself, like I am saying to you - I am sorry, sir".

1. The defendant agreed that the plaintiff was extremely intoxicated and agreed that he had received training as a security officer. In evidence are several certificates awarded to the defendant in the period 2010 to 2012. There are Certificates I and II in Security Operations, both issued on 16 April 2012, but they appear to involve the completion of separate sets of units. In Certificate I, there is a unit entitled "Protect self and others using basic defensive techniques". The defendant agreed that he had been taught to step backwards and to raise his arms if there was a violent person from whom he needed to protect himself. However, apart from the fact of the requirement to stand back with hands open and up, he could not remember anything else about it.
2. When asked what else he had been taught, he said "Control person using empty hand", and indeed there is a unit set out in the same certificate entitled "Control persons using empty hand techniques". There is also a unit called "Manage conflict through negotiation" but the defendant said he could not remember it. Later, the defendant was taken to the Crowd Controllers Code of Conduct made under the Security and Investigations Agents Act 2002. As part of a requirement to "Display responsible conduct" a crowd controller is not to use undue force in the course of their duties. The defendant said that he could not remember having seen that Code before.
3. He said he could not remember being trained in principles of de-escalation in difficult situations, and maintained that answer when the word "de-escalation" was explained to him as "calming things down, or calming everybody down and defusing a situation, or bringing an incident to a stop."
4. After being taken through the video, the defendant was asked about attempting to grab the plaintiff with his left hand. It was put to him that he was trying to hit the plaintiff again. He said:

"No, I didn't try to hit him again. I was trying to grab him as he fall back. I did not try to hit Matthew. Like I said, I pushed him away from me to defend myself. I was trying to grab him with my left arm, but it was too late, Matthew was already falling back. And then I end up falling on him."

1. In effect, he denied losing his temper. In an answer about this issue the defendant volunteered the following:

"I was the calmest, even in the rugby field, I was the calmest person in the rugby field. So, I was the calmest person, I was trying to calm the situation down. Right, suddenly Matthew was trying to hit me, and I pushed him away from me to protect myself."

1. In all of this there is very little evidence from anybody about what was actually being said between the plaintiff and the defendant at relevant times. I am satisfied that after being ejected, the plaintiff was being told to get on his way and that he would not be allowed back in. There is the unchallenged evidence of Miss Jenkins that when the plaintiff was walking across the road, words were being exchanged between him and two crowd controllers but she could not hear what was being said. When he came back from across the road, "... it looked like the bouncers were being a bit antagonising. It looked like everyone was mouthing off at each other."
2. Apart from the video which shows arm and hand gestures that bear out the verbal exchanges that is as far as the evidence goes. Of course I cannot make any findings as to what was being said, but Miss Jenkins' evidence suggests a level of abuse; plainly, the plaintiff was not making a polite request of the defendant to be allowed back into the Club in exchange for a promise to behave.

1. I should mention s 140 of the Evidence Act 2001. Section 140(1) makes the balance of probability the standard of previous civil matters. Section 140(2) provides that in deciding whether the Court is so satisfied, it may take into account the nature of the cause of action or defence, the nature of the subject matter of the proceeding and the gravity of the matters alleged.
2. Section 140(2) reflects, at least in part, the well-known passage from the judgment of Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-362. That stresses the need for a tribunal to feel an actual persuasion of the occurrence or existence of a fact before it can be found, and points out that the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to whether the issue has been proved to the reasonable satisfaction of the tribunal. All of that notwithstanding, the standard remains that of proof on the balance of probabilities: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 at 170-171.
3. The correct approach to s 140(2) of the Evidence Act is to recognise that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of that which that it is sought to prove; ordinarily the more serious the consequences of what is contested in litigation, the more a court will have regard to the strength and weakness of evidence before it in coming to a conclusion: Qantas Airways Ltd v Gama [2008] FCAFC 69, 167 FCR 537 at [110], Ashby v Slipper [2014] FCAFC 15, 219 FCR 322 at [64]- [68]; CEPU v ACCC [2007] FCAFC 132, 162 FCR 466 at [30].
4. The absence of a finding that the defendant had a lawful justification for the application of force may imply an assault; a criminal act. In this case proof of the defence puts an end to a substantial claim for damages made on behalf of a very seriously injured man.
5. As I have noted and commented on, in his various out of court statements and in evidence the defendant gave different accounts of the detail of the incident. However from the time when he spoke to Constable Morris which must have been at about 00:50 - a little of a quarter of an hour after the incident - he has consistently claimed that his physical contact with the plaintiff, whether it was described as a push or a grab, was done to stop being hit again. While that is not to be overlooked, the different versions must also be taken into account in assessing what he claims.
6. A significant factor is the nature of the response. A highly disproportionate response might indicate an intention to retaliate rather than an act of self-defence. That is even more so with a higher degree of proportionality. Failure to retreat when that was reasonably open has the same effect. At the same time, I bear in mind what the law requires about judging a person's reaction in measured hindsight when the circumstances do not permit of calm consideration.
7. I take into account the knowledge of the plaintiff that the defendant had acquired throughout the course of the evening. There is the plaintiff's drunken behaviour leading up to his eviction from the Club, which includes the punch to Mr Thorne, and his generally aggressive and drunken behaviour outside. But there is also the evidence of a mutually antagonistic verbal exchange, and I regard what the video shows as significant. I am not satisfied that the plaintiff's blow was an especially forceful one. The defendant did not, in response, simply punch the plaintiff where they stood; as he admitted in evidence, he stepped down from the kerb at the time of making contact, and the video objectively shows he effectively threw himself forward. After looking at the video many times, I do not think that it can be viewed in any other way[5]. In any event, given the respective physical positions of the parties and the plaintiff's level of intoxication as against the defendant's sobriety, the defendant could very easily have stepped backwards and controlled any further aggression.
8. Having carefully considered the issue on the whole of the evidence, I am not able to accept the defendant's evidence that he believed that he needed to act in self-defence. To form such a belief means more than simply forming a view that some action needed to be taken to prevent another assault. It requires the belief that an application of force is necessary. In my view, it is much more likely that the defendant's response was a retaliatory one triggered by being punched to the side of the head, in the context of the accumulated aggravation caused by the plaintiff's earlier conduct.
9. Although I do not need to go any further, I should deal with the next stage. Even if the defendant genuinely believed he needed to apply force in self-defence, the force applied was not proportionate in the circumstances. I have already described the view I take of the video. The two men were in quite different situations. Whilst being very intoxicated made him unpredictable, at times the plaintiff had difficulty standing up. The defendant was sober and had the training of a crowd controller as set out above. He could indeed have grabbed him, rather than punched him, or simply backed away fending him off if necessary. The defence of self-defence fails.

Section 3B of the CLA - an intention to injure

1. Section 3B(1)(a) of the CLA relevantly provides that the Act does not apply to or in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death.
2. It is established that this provision does not operate on the cause of action but on the act that gives rise to the liability and the intention of the person doing that act: Dean v Phung [2004] NSWCA 223 at [10]; Croucher v Cachia [2016] NSWCA 132 at [33] per Leeming JA, Beazley P and Ward JA agreeing. (The New South Wales Civil Liability Act 2002 has a practically identical provision; also s 3B(1)(a).)
3. A case in battery can be established where the defendant's conduct is either intentional or merely negligent. The former engages s 3B(1)(a) while the latter does not. The language of "intentional tort" is an unsafe guide, and it is necessary to look at the character of the underlining conduct. See Dickson v Northern Lakes Rugby League Sport and Recreation Club Inc [2020] NSWSC 294, 103 NSWLR 658 at [7] per Basten JA; Croucher v Cachia (above) at [34].
4. There is no argument about any of this, nor is there argument that the plaintiff bears the burden of proving that the exclusion applies: Dickson at [46] per Simpson AJA (Basten and White JJA agreeing). The plaintiff must therefore establish an intentional act and one done with an intention to injure. There is no dispute in this case that, one way or the other, the defendant's contact with the plaintiff was intentional. The sole question is his state of mind; did he intend to cause injury?
5. The defendant was not asked and did not say anything in his evidence-in-chief about whether he intended to injure. In cross-examination, he denied the express proposition that he had intended to injure. There was no further questioning and so left, the answer may be equivocal as the defendant may not have understood what was involved in the concept of injury in the question, given the extent of the plaintiff's injuries.
6. In any event, the plaintiff asks me to infer the intention from the fact of a punch to the face, the surrounding circumstances and from what appears from the video. There is no doubt that a subjective state of mind can be inferred from circumstances other than the person's statement as to their perceptions: Sangha v Baxter [2009] NSWCA 78 at [153], Croucher v Cachia at [104]. The exercise of drawing an inference from circumstances in a civil case is discussed in Langmaid v Dobsons Vegetable Machinery Pty Ltd [2014] TASFC 6, 24 Tas R 18 at [119] - [122], [124] - [126].
7. The short, relevant points are as follows. The evidence must still induce in the mind of the fact finder an actual persuasion that the fact exists. It is not generally necessary that all reasonable hypotheses consistent with non-existence of the fact, or inconsistent with its existence, be excluded before the fact can be found; there need only be circumstances raising a more probable inference in favour of what is alleged. A court is not authorised to choose between guesses or rival conjectures, but is entitled to draw the inference from even slim circumstantial facts so long as it goes beyond speculation.
8. It is important to note the very real distinction between inference from proven facts on the one hand and conjecture or speculation on the other. Although difficult to distinguish between permissible inference and conjecture, an inference is a deduction from the evidence, and there can be no inference unless there are proved objective facts from which to make the relevant inference: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29, 49 NSWLR 262 at [84]- [88]; Lane v The Queen [2013] NSWCCA 317 at [109]- [110].
9. I pause to again mention s 140 of the Evidence Act, discussed above. In this context, the allegation of an actual intention to injury is a serious matter. Proof of that fact has significant consequences in terms of damages. If the CLA is disengaged, damages are at large and not subject to the limiting provisions of that Act.

1. In written submissions the plaintiff argued, relying on the notion that a person is presumed to intend the nature and probable consequences of their conduct. Counsel relied on a passage from a judgment of Simpson AJA in Dickson (above) at [113]-[115]. Her Honour there referred to parts of the judgments of Gleeson CJ and Gummow J in Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69, 208 CLR 388 relied on by the plaintiff in that case. The noted effect of the parts referred to is that their Honours saw two routes to liability for alleged harm: where the harm actually suffered was the intended result of the tortious conduct; and where the harm actually suffered is the natural and probable consequence of the tortious conduct in which case the harm lies within the presumed intention of the tortfeasor.
2. It is not necessary to further examine the Palmer Bruyn case. The plaintiff's reliance on it in Dickson was described by Simpson AJA at [109] as "reflecting a misunderstanding of the context in which the High Court ... applied the presumption." That context was that of causation and remoteness of damage. In turn, the plaintiff's reliance in this case on the passage from Dickson to establish the point is, regrettably, seriously misplaced. Dealing as it does with the New South Wales equivalent of s 3B(1)(a), Dickson is actually clear and direct authority for the contrary proposition, as a brief reading of the headnote to the authorised report demonstrates.
3. Dickson is clear authority for the proposition that an actual subjective intention must be established; recklessness or foresight of inevitable consequences or presumptive intention are all insufficient. The Court was unanimous in that respect: see Basten JA at [8], White JA at [19], Simpson AJA at [186]. The Court held that the intention referred to s 3B(1)(a) of the CLA is an actual subjective, formulated intention to which the defendant has turned his or her mind. This interpretation has since been adopted: see Irlam v Byrnes [2022] NSWCA 73; Ray v Southon (above) at [36][6]. I intend to follow Dickson.

1. Neither party made any submissions as to what "injury" means in its context. Exactly what it is that a defendant must intend, is open to interpretation. Not surprisingly, the word in the equivalent section of the New South Wales legislation has been considered in that State.
2. In McCracken v Melbourne Storm Rugby League Football Club Ltd [2005] NSWSC 107, the issue arose in relation to a significant head injury caused by a tackle in a game of rugby league. There was evidence that the general purpose of a tackle was to put the player on the ground forcibly, to cause a hard and bruising impact that would hurt and discourage. There was also evidence that the particular tackle was "a dangerous throw", putting the plaintiff on his head as it did. The two defendants involved in the tackle said they had no intention to effect that sort of tackle, but agreed their purpose was to put the plaintiff "hard" on the ground.
3. Hulme J found that on the evidence, which included a video of the tackle, the defendants intended to injure the plaintiff. At [42] his Honour considered the question of what injury meant in the section. His Honour said:

"A question arises: What is encompassed within the word 'injury'? I do not for the purposes of this case need to decide how minor a hurt may be to come within the expression. I am satisfied, particularly from [the expert] evidence and from my consideration of the video, that what was intended by [the players] was injury which was not so minor that it could be regarded as perhaps an inappropriate use of the term."[7]

1. In Dean v Phung (above), Basten JA (with whom Beazley P agreed) said in reference to s 3B(1)(a) that "in ordinary language, an injury is a harmful consequence." Next, State of New South Wales v Ibbett [2005] NSWCA 445, 65 NSWLR 168 was a case that concerned an unlawful arrest by police officers, involving an unlawful arrest of the plaintiff's son which included pointing a revolver at him in her presence leading to a claim for damages arising from anxiety and distress.
2. Spigelman CJ at [11] said that he could see no reason why the word "injury" in s 3B(1)(a) should not be given its natural and ordinary meaning; such a meaning would encompass harm occasioned by an apprehension of physical violence. At [218] Basten JA agreed, adding that the word was not restricted to, but would include, personal injury. Ipp JA preferred the view that anxiety and distress would be impairment within the definition of "personal injury" in that part of the Act that deals with damages, but if it had its ordinary meaning, it would be wide enough to encompass anxiety and stress. [124]-[125].
3. In Hamilton v State of New South Wales (No 13) [2016] NSWSC 1311, Campbell J dealt with allegations of unlawful arrest and false imprisonment by police officers arising from an incident in which the plaintiff had suffered physical injuries about his face and head and fractured ribs, along with a consequential post-traumatic stress disorder. His Honour found that a battery had been established and went on to consider s 3B(1)(a) of the New South Wales Civil Liability Act and the word "injury". At [190]-[193] his Honour said:

"[190] But does the word 'injury' connote as a matter of law any particular necessary degree of severity? The question is of more than academic interest in the present case. It may be accepted that neither officer in their deliberate actions intended to injure [the plaintiff's] face, fracture a rib, or inflict psychological harm in the form of a post-traumatic stress disorder. On the other hand, the intention of each of them in exerting force on [the plaintiff] in the various ways I have described was to inflict pain of such a degree and for such duration as would bring him down to a position of submission on the floor where he could be restrained by handcuffs. Is the intent to cause injury of that type sufficient for the purposes of s 3B?

[191] [Campbell J then quoted the statement of Spigelman CJ in State of New South Wales v Ibbett at [11], set out above.]

[192] [His Honour then referred to what both Basten and Ipp JJA said in Ibbett as set out above and continued:] In Ibbett the intentional act was a plain clothes police officer pointing his gun at an elderly lady demanding that she open the door. The injury he intended to cause was the anxiety and distress occasioned by the apprehension of physical violence.

[193] There would be no doubt that the infliction of a deliberate blow accompanied with the intention to cause some injury even of a temporary nature would be sufficient. I can see no reason why the deliberate infliction of physical violence intended to cause pain and submission to the will of the police officer is not an intent to cause injury within the meaning of the Act. I am satisfied that s 3B(1)(a) applies." [My emphasis]

1. The thrust of these cases is clear. The section requires an intention to inflict something more than trivial hurt or harm something which, as Hulme J in McCracken put it, does not involve an inappropriate use of the word 'injury'. It might be thought that the matter rests there but there is a remaining issue that it would perhaps be wise to address. There has been a suggestion that the intention must relate to the injury actually caused; that is, the intention must be to cause the injury the subject of the claim.
2. This suggestion appears in the judgment of Basten JA in Dickson (above). Dickson was another rugby league "tackle injury" case. The expert who gave evidence in the McCracken case also gave evidence in the Dickson trial to similar affect; that the purpose of a tackle was to put the player on the ground forcefully to cause hard and bruising impact that would hurt and discourage, with minor injury being an obvious outcome. The trial judge found that in the circumstances of the particular tackle, the plaintiff had not proved that the opposing player, (Fletcher) intended to cause injury. That finding was not disturbed on appeal.
3. At [10], his Honour said 'injury' in s 3B(1)(a) is "an abstract concept but it is clearly intended to refer, if not to the injury... which is the subject matter of a claim, at least to an injury of that character." Later, at [15] his Honour seems to have gone a bit further, saying "it is not possible to read s 3B(1)(a) as engaged where the intent is to cause an injury which is not the subject of the claim." His Honour noted that the injury of the subject of the claim in that case resulted from the fact that the tackler fell on to the plaintiff's head, there being no evidence that he subjectively held an intention to do that or to cause the injuries which resulted from that act.
4. White JA disagreed. At [34], his Honour referred to Basten JA's suggestion and said it was arguable that the words "with intent to cause injury" should not be read as meaning "with intent to cause the injury". His Honour said, "That is, it is arguable that the operation of s 3B(1)(a) is not excluded because the injury suffered is more severe than that that the tort are intended to inflict."
5. The third judge, Simpson AJA, did not address the point but it seems clear from her Honour's reasons that she did not share Basten JA's view. At [169] her Honour said:

"Viewing the video recording confirms, in my opinion, that the inevitable result of the tackle was that some injury would be caused to Mr Dickson, even if relatively minor. That is not the same as saying that [the player] intended to cause injury. It does not follow from the inevitability of injury that [the player] intended to cause injury.... There is no issue here that the tackle caused [the plaintiff's] injuries. Whether [the player] intended to cause those injuries (or any injuries) as required by s 3B(1)(a) of the CLA must be approached from a different angle." [My emphasis]

1. This view was rejected in Irlam v Byrnes [2022] NSWCA 81 where Cavanagh J, with the agreement of Simpson AJA and N Adams J, said that while it had been suggested - referring to what Basten JA said in Dickson at [15] - he did not consider that it was necessary for a plaintiff to establish that a defendant intended to cause the precise injuries sustained. See also Ray v Southon (above) at [39]-[43].
2. A first instance judgment that seems to have escaped attention (other than that of the trial judge in Dickson[8]), is that of Studdert J in Fuz v Carter [2006] NSWSC 771. It is worth setting out in full a passage from his Honour's judgment. Having referred to the submission that 'injury' in the context of 3B(1)(a) meant the injury actually suffered, his Honour said:

"[57] I consider that [the opposing] submission is to be preferred. If the exclusion provided for by s 3B(1)(a) is only to have effect in cases where the person who committed the assault intended to cause the precise injury inflicted, this would markedly restrict the circumstances in which the provisions of the Act are not to apply. This is simply because of the difficulties which would generally arise in determining that the tortfeasor acted with intent to cause the precise injury suffered. For example, absent some admission by the tortfeasor who punched his victim in the face, it would be difficult for a court to conclude that the tortfeasor intended to cause blindness, where blindness was caused, as a consequence of a blow striking the victim in the eye.

[58] Section 3B(1)(a) does not expressly provide: 'with intent to cause the injury or injuries suffered', nor does it contain words to that effect. Absent such precise restrictive language, I conclude that the application of the Act is excluded provided the conduct to be considered is done 'with intent to cause' some injury.

[59] In the present case the assault could not be regarded as a trivial one. In addition to the impact of the blows, the plaintiff was pushed down the stairs, and I am satisfied on the balance of probabilities that in doing what he did the first defendant acted with intent to cause injury. Hence, s 3B(1)(a) applies and damages in this case are to be assessed in accordance with common law principles."

1. There may be cases where the inference of intent to injure may readily be inferred by the conduct itself; that may be of such a nature to preclude acceptance of any explanation other than the intention of inflicting injury. For the plaintiff to succeed on this point, I need to be affirmatively persuaded that in the instant before striking him, the defendant formed the intention to injure. The relevant circumstances are the plaintiff's behaviour inside and outside the Club before the incident that involved the defendant, the fact of the punch and the manner in which it was delivered (apparent from the video) and the absence of a belief of a need to defend himself.
2. Having given the matter careful thought, I find that the defendant intended to injure the plaintiff. That is to say, he meant to harm or hurt to more than a negligible extent. The intention was to injure in the sense noted above not, for instance, to simply shock or startle so as to have the plaintiff reduce his aggression levels and modify his behaviour. It follows that the CLA is disengaged.

Section 6 of the CLA - "Criminals not to be awarded damages"

1. In strict terms I do not need to consider this point but as I said at the outset my obligation is to address all issues. What follows assumes I am wrong about the s 3B question.
2. Section 6(1) relevantly provides that a court is not to award damages if satisfied that (a), the person whose death, injury or damage is the subject of proceedings was, at the time of the incident that resulted in the death, injury or damage, engaged in conduct that (on the balance of probabilities) constitutes a serious offence[9] and (b), the conduct contributed materially to the risk of death, injury or damage that was suffered. "Serious offence" is defined in s 6(3) as an offence punishable by imprisonment for a term greater than six months. Assault is a "serious offence" whether it be charged under the Police Offences Act or under the Criminal Code.
3. It is self-evident that the section operates so as to preclude an award of damages and is not directed to any question of liability. That is, subject to its application because of the s 3B question, it denies an injured person the right to recover damages from a defendant who might otherwise be liable. As the section states, proof is on the balance of probabilities. The defendant carries the onus: Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204, 73 NSWLR 241 at [124].
4. All Australian jurisdictions except Victoria and Western Australia, have similar provisions. I say 'similar' because none is worded truly identically with any other, although there are close similarities between some. The common feature of these provisions is that they have both a temporal coincidence requirement and a causative one. Most commonly, the temporal one is expressed in terms that the "accident" (or in one State, the "breach of duty") must have happened or occurred "while the injured person was engaged" in criminal conduct. [My emphasis] The causative one is usually expressed in terms that the criminal conduct must have materially contributed to the risk of harm or injury. The cases in which the proper approach to their interpretation are limited in number.
5. It is the temporal requirement that needs to be closely considered in this case, both in law and in fact. The legal question relates to the strictness or otherwise of that requirement. The person must have been engaged in the criminal conduct "at the time of the incident" that resulted in injury or damage. In this context, being "engaged" in conduct must mean being "occupied" or "busy" with some act or activity.
6. I record the fact that the plaintiff's counsel made no submissions about this issue. The defendant submits that the central question raised by the section is whether the criminal conduct of the injured person is causative of that person's injuries. That may be so at a high level of abstraction but the fact remains that there are two separate requirements; one is of a temporal coincidence between the engagement in criminal conduct at the time of the incident that resulted in injury or death; the second is of a causative connection between the criminal conduct and the injury and the risk of injury or damage.
7. As I understand it, the defendant suggests the word "incident" should be given a wider meaning than might otherwise appear. Counsel referred to the natural and ordinary meaning of "incident" by reference to the Macquarie Dictionary: "an occurrence or event; a distinct piece of action as in a story or play." Submissions were made both that "incident" is not confined to the tortious act that resulted in injury, and that the concept of being engaged in criminal conduct is not confined to the time the elements of the crime are complete. Shorn of embroidery, the crux of the argument is the proposition that the criminal conduct can be engaged in at a time before the tortious act, and hence, in this case, it matters not that the criminal conduct was engaged in just before the defendant's punch.
8. I have little doubt that the phrase "incident that resulted in the injury" means the particular and discrete occurrence of the act that constitutes the tort and gave rise to the injury. I think the better question is what is meant by "at the time of" the incident. That is, whether the criminal conduct must be contemporaneous with the commission of the act constituting the tort, or at some relatively proximate time. It must be put in that way because if strict contemporaneity is not required, it cannot be assumed that factual situations will always have things in the order of criminal conduct first.
9. The defendant relies on the observations of Young CJ in Eq in Sangha v Baxter [2007] NSWCA 264. The wording of the equivalent New South Wales section is materially different. Section 54(1)(a) of the Civil Liability Act 2002 (NSW) provides that no award of damages is to be made if the death, injury or damage to the person that is the subject of the proceedings occurred at the time of, or following conduct of the person that on the balance of probability constitutes a serious offence. The words "or following" were added shortly after the legislation was passed, apparently in response to a prominent case in that State.
10. In any event, it was the meaning of the effect of the words "and following" that Young CJ in Eq addressed. His Honour said:

"84 It seems to me that it cannot be that every action after someone has committed a serious offence can be caught by the words 'following ... '. Just where the cord must be cut is unclear. It may be that if one were to set down a test one would do it in similar words to those of Lord Normand in the Privy Council in Teper v The Queen [1952] AC 480, 487 (a res gestae case) that the injury must occur 'if not absolutely contemporaneous with the' crime then 'at least so clearly associated with it, in time, place and circumstances' that it can be considered part of the criminal conduct."

1. The defendant submits that this test should be applied in the application of s 6 of the Tasmanian Act; the difference in wording in the New South Wales provision does not extend the matter any further. I would say a number of things about that submission. First, s 54(1)(a) specifically includes reference to a time after the criminal conduct. Second, under s 54(1)(a), it is the injury or damage to the person that needs to have occurred at the time of or following criminal conduct of that person. In this State, the focus is on when the criminal conduct was engaged in, and not when the injury or damage happened.
2. Under s 6, the person must have been engaged in criminal conduct at the time of the incident that resulted in injury or damage. It may ordinarily be the case that the incident that resulted in injury would coincide with the suffering of injury or damage, but as recognised in the New South Wales section, it is not hard to see that death, injury or damage could occur or be suffered an appreciable time after the criminal conduct of the person who died or was injured or suffered damage. [10]
3. The facts of Sangha v Baxter as detailed by Young CJ in Eq and the outcome of the s 54 issue are as follows. The plaintiff was involved in an altercation with a taxi driver. Shortly before and when the taxi arrived at the plaintiff's destination he grabbed and assaulted the driver, believing he had been overcharged. He got out of the taxi but held the door ajar and leant back in. There was a "commotion" for a short time which possibly involved further violence. Twice during this, the driver reversed a short distance and on a third time, the plaintiff fell under the open door and was injured. Young CJ in Eq was the only member of the Court to consider the defence.[11] The interesting point is that applying the test he formulated, his Honour held that the damage did not occur "following" the commission of the assault by the plaintiff on the driver.
4. More recent authority as to s 54 is Irlam v Byrnes (above). The short facts were that the plaintiff punched the defendant after being threatened, at which point the defendant, who was in a car, reversed away with the plaintiff hanging on to the open door and roof. He told the defendant to stop but the defendant then turned the vehicle sharply causing the plaintiff to be thrown off suffering injuries.[12] Unlike s 6 of the CLA, s 54(2) of the New South Wales Act provides that the section does not apply if the conduct of the defendant that caused the death, injury or damage constituted a criminal offence whether or not a serious offence.
5. At [207], Cavanagh J noted the two criteria in s 54(1), and at [209] said:

"As far as the temporal requirement is concerned, the words 'the injury must occur at the time or following the conduct that constituted the serious offence' should be read together and consistently. They import a sense of immediacy and contemporaneity between the injury and the conduct. [F]ollowing" is used in its temporal rather than causal sense. Just where the link is severed is unclear: Sangha v Baxter ...at [84]....."

1. The Court held that the question of the application of the section was answered by the fact that the defendant "was surely engaged in conduct which constituted an offence such that s 54(2) applies." Accordingly, it was not necessary to determine any issues under s 54(1).
2. Section 45(1)(a) of the Civil Liability Act 2003 (Queensland), has a temporal requirement in terms that the breach of duty from which civil liability would arise "happened while the person who suffered harm was engaged in conduct that is an indictable offence". In Corliss v Gibbings-Johns [2010] QCA 233 - a case not cited in argument- the facts were that the respondent (plaintiff) broke a window in a hotel in response to which the appellant publican threw a glass object, hitting him in the face and causing injury. The evidence was that between "a couple" and "eight or nine" seconds elapsed between the two events. The defence was not raised at first instance but the point was raised on appeal.
3. The Court of Appeal noted that if the section had been relied on at trial, the respondent may have called further evidence to fortify the evidence about the longer period. However, the Court assumed the section applied in a claim for assault and that the criminal conduct relied on was an indictable offence. It said - apparently on any view of the evidence - that the breach of duty did not happen while the respondent was engaged in that criminal conduct, it happened afterwards. Accordingly, the appellant was not permitted to raise the new point. See Applegarth J (Holmes and Chesterman JJA agreeing) at [44]-[46].
4. I pause for a word about statutory construction. The task is essentially a texted based activity but requires attention to the text, context and purposes of the legislation. The question is what Parliament is taken to have intended by the language used - the text is the "surest guide" - putting in its context and having regard to the apparent purpose of the legislation. The purpose resides in the text and structure, and may appear by reference from the text or appropriate reference to extrinsic materials. See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27 [4], [47]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34, 91 ALJR 936 at [14], [37]; Lacey v Attorney General for Queensland [2011] HCA 10, 242 CLR 573 at [43]- [44].
5. Because of the ordinary meaning of the words used, the interpretation of s 6 that is primarily open is that there must be a strict contemporaneity between the engagement in criminal conduct and the incident that resulted in the injury. Indeed, in introducing the relevant Bill on 13 April 2000, the Minister said:

"[I]ncluded the bill is the prohibition of damages being awarded where an injured person is, ....engaged in conduct that constitutes a serious offence and that conduct contributes materially to the risk of injury suffered by a person...[T]his aligns with community expectations that people should not be compensated if they are injured principally because they are engaged in criminal activity...The bill does not require the criminal proceedings are taken against the injured party, or that they are prosecuted for the activity they are involved in at the time of injury, for damages to be prohibited. It will be up to the court to decide whether they had been engaged in conduct to constitutes a serious offence." [My emphasis]

1. In the fact sheet accompanying the Bill, the terms of s 6 are recited except the words "that resulted in the death injury or damage", which do not appear after the word "incident". The clause notes reflect the section as enacted. I regard the Minister's comments as influential. While not determinative of course, in the process of statutory construction they enable a better understanding of the language and the intended operation of the provision: Certain Lloyds Underwriters v Cross [2012] HCA 56, 248 CLR 378 at [88]- [89].
2. The notion of "being engaged in conduct" should not be overlooked in this exercise, but as I have said, the real question seems to be the meaning of the phrase "at the time of the incident." The wording of s 6 of the Act is different from that used in other jurisdictions although any real difference in effect is difficult to discern. That is because the word "while", in the phrase "while being engaged in ...", would clearly have its meaning of "at the same time as". The interstate cases I have reviewed clearly suggest a strict approach to the temporal requirement, even in New South Wales where that requirement is broader. It might well be said that even the test under s 54(1) proposed by Young CJ in Eq in Sangha is very restrictive, given the ordinary and natural meaning of the words "or following".
3. There is good reason to adopt an interpretation of s 6 of the CLA that involves strict contemporaneity between the commission of the tort and the criminal conduct of the plaintiff. That reason essentially arises from the broad scope of the operation of the section. As to that scope, first, it is not necessary for the plaintiff to have been charged or convicted of a serious criminal offence, and the proof of criminal conduct is to the civil standard. Second, there are many offences of a disparate nature that potentially attract a sentence of more than six months' imprisonment.
4. Third, unlike its equivalents in other jurisdictions, s 6 contains no measure of relief. As has been seen, in s 54(2) of the New South Wales Act that is provided for fully when the tortious conduct of the defendant amounts to a criminal offence, without more. In each of South Australia and the Territories there is a provision giving to the court a discretion to award damages if there are exceptional circumstances and those circumstances mean the provision would operate harshly and unjustly.[13] In Queensland there is a discretion to reduce damages by 25 per cent or more if the provision would operate harshly and unjustly[14].
5. Finally, the statutory illegality defences operate with greater scope and uncertainty than the common law defence of illegality, particularly as it relates to where the plaintiff was unilaterally engaged in illegal activity: see for instance Henwood v Municipal Tramways Trust (South Australia) [1938] HCA 35; (1938) 60 CLR 438. The point is that there is there rule of statutory interpretation - perhaps of limited assistance[15] - that a construction which militates against the removal or diminution of common law rights is to be favoured: see for instance Plaintiff S157/2002 v Commonwealth [2003] HCA 2, 211 CLR 476 per Gleeson CJ at [30].
6. An accumulation of these considerations leads me to conclude that s 6 should be construed strictly. This means that there is a strict requirement of contemporaneity or coincidence in time between the incident and the criminal conduct of a plaintiff. The requirement in the section for the injured person to have been engaged in conduct at the time of the incident, should be given its ordinary meaning. To construe those words as including words to the effect of "had been engaged in criminal conduct at or about the time of (or similar) the incident" is reading too much into it. If that was what Parliament meant, it could easily have said so.
7. As this case and those discussed show, the conduct of the person injured and the commission of the tort could be separated by mere seconds. That the provision works in the way I suggest might be regarded as artificial. But strict contemporaneity is more certain than ill-defined notions of temporal proximity of antecedent and subsequent criminal conduct. On the facts of this case, I cannot be satisfied the plaintiff was engaged in criminal conduct at the time he was punched. It would be pure speculation to infer that he was going to punch the defendant again so as to give rise to a finding of a continuing assault. In fact, the evidence suggests otherwise; the video shows that he moves slightly back away from the defendant immediately after punching him.
8. For completeness, I should now mention s 6(1)(b). There may be an unresolved argument about whether the phrase "contributed materially" requires the application of the 'but for' test as implied elsewhere in the CLA: see Irlam v Byrnes at [210]. For my part, I would agree with Daubney J in Captain v Colosmo [2007] QSC 86 at [57]- [58] (dealing with s 45(1)(a) of the Queensland legislation), that the provision incorporates the meaning of that phrase as it is commonly understood in the law: Chappel v Hart [1998] HCA 55, 195 CLR 232 at [8], [27], [93]; Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; [1956] AC 613 at 621; West Australia v Watson [1990] WAR 248. Given the facts of this case, the question does not need to be resolved because on any view, the plaintiff's conduct materially contributed to the risk of injury that was suffered. The plaintiff did not argue to the contrary.
9. It follows from what I have said that were it to be necessary, I would hold that the plaintiff was not engaged in conduct that constitutes a serious offence at the time of the incident that caused his injury, and is thus entitled to an award of damages.

1. Section 4 of the Wrongs Act provides that "where a person suffers damage as the result partly of that person's wrongful act and partly of the wrongful act of any other person, a claim in respect of that damage is not defeated by reason of the wrongful act of the person suffering the damage, but the damages recoverable may be reduced by up to 100% as the court thinks just and equitable, having regard to the claimant's share and responsibility for the damage."
2. Before 2000, the Wrongs Act was known as the Tortfeasors and Contributory Negligence Act (TCNA). By Act No 39/2000 (applied 29 June 2000) that Act was re-named and s 4 was amended to its current form. Before the amendment, the word "fault" stood in place of the phrase "wrongful act". For all intents and purposes, the section otherwise remained the same after the amendment, except that the section now makes it clear the extent of reduction may be by up to 100 per cent.
3. The issue in this case is the availability of contributory negligence in relation to the plaintiff's claim of intentional battery. The particular issue involves the interpretation of par (a) of the definition of "wrongful act" when contrasted with that of "fault" under the TCNA.
4. The word "fault" in the TCNA was defined as meaning "negligence, breach of statutory duty, or any other act or omission that gives rise to a liability in tort or would, but for this Act, give rise to the defence of contributory negligence." In s 2 of the Wrongs Act "wrongful act" is defined as meaning "an act or omission that:-

(a) gives rise to a liability in tort or would, if it caused damage to another person, give rise to a liability in tort; or

(b) amounts to a breach of contractual duty of care that is concurrent and co-extensive with a duty of care in tort; or

(c) amounts to a breach of statutory duty -

and includes an act or omission on the part of a person suffering damage that causes or contributes to the damage and that constitutes a failure on the part of that person to take reasonable care for the protection of his or her person or property."

1. In effect, the TCNA removed contributory negligence as a defence and allowed for apportionment in cases where contributory was a defence at common law. At common law, contributory negligence operated as a complete defence to a claim in tort except - at least according to the predominant view - in relation to intentional wrongdoing: Horkin v North Melbourne Football Club Social Club [1983] VicRp 12; (1983) 1 VR 153 at 165; State of New South Wales v Riley [2003] NSWCA 208, 57 NSWLR 496 at [104].
2. As the Wrongs Act is the sole statutory basis of apportionment, the question of whether contributory negligence is presently open in response to a claim for damages for an intentional battery needs to be resolved, irrespective of whether the CLA applies to the claim or not. I have held that the CLA does not apply to the plaintiff's claim for damages, so if contributory negligence is open, then the exercise of apportionment is purely discretionary. If contributory negligence is available and the CLA applies, there would be a mandated reduction of 25 per cent due to the plaintiff's intoxication were I to be satisfied that his capacity to exercise due care and skill was impaired: see ss 5(1) and (2) of the CLA.
3. The defendant says that par (a) of the definition of "wrongful act" should be read literally so that it extends to acts or omissions giving rise to any liability in tort irrespective of its form. The plaintiff says the definition should be read down so that the effect of the amendment is to extend s 4 only so far as to include contribution for contributory negligence in actions for breach of contractual duty of care. That essentially means attributing the same meaning to paragraph (a) as that of "fault" under the TCNA except for the reference to breach of statutory duty.
4. The plaintiff's submission calls for a consideration of the trigger for the amendment. The amendment was a response to the High Court's decision in Astley v Austrust Ltd [1999] HCA 6, 197 CLR 1. There, a plaintiff had brought an action against a firm of solicitors for damages for negligence and for breach of contract, arguing that an implied term of reasonable care arose by operation of law in the contract. The High Court held that the then South Australian equivalent of s 4 did not permit an apportionment of damages for breach of contract for contributory negligence whether or not the plaintiff had or could also have had sued in tort.
5. That caused legislatures around the nation to respond. In this State, in introducing the amending Bill, the Minister said:

"The purpose of this bill is to amend the [Act] so that [its] provisions...relating to the apportionment of liability in cases of contributory negligence apply to actions for damages arising under a breach of a contractual duty of care. ... In a 1999 decision in Astley v Austrust Ltd the High Court held that where there was a concurrent liability in contract and tort, the provisions of s 4 did not operate to reduce the plaintiff's damages for breach of contract even though it did reduce the damages in tort for the plaintiffs contributory negligence. This decision related to the Wrongs Act of South Australia. The relevant provisions of that Act are in distinguishable from the equivalent s 4 of the Tasmanian Act. ...

Until the decision of the High Court in Astley conventional wisdom was that it mattered not whether the cause was contract and/or negligence as the apportionment provisions of the Act will apply. ... Unless there are changes to the Act there will be the anomalous situation where a set of circumstances which give rise to a concurrent liability in negligence and contract would result in the plaintiff recovering more than hitherto has been the case and where that result will hinge solely on whether the plaintiff pleads his or her case in a particular way - that is, to allege both causes of action. ...

Mr Speaker, this bill returns the law to that which that had hitherto been believed to exist. It will enable damages to be reduced by the amount of the plaintiff's contributory negligence irrespective of whether a cause of action is pleaded in contract or negligence."

1. Hence, the clearly stated intention was that the amended definition extend the operation of s 4 to include acts or omissions amounting to a breach of contractual duty where there was a concurrent liability in tort. That, of course, is achieved by par (b) of the definition of "wrongful act". On its face par (a) means what it says; a wrongful act is any act or omission that gives rise to a liability and tort or would, if it caused damage to another person give rise to a liability in tort. The concluding words of the definition after par (c) extend this to include relevant acts or omissions of injured persons.
2. There is nothing in the extrinsic materials that sheds any light on why the definition was changed in ways beyond the inclusion of par (b). The plaintiff seems to accept that the ordinary and grammatical meaning of the words create a problem, conceding that it is open to interpret "wrongful act" as including an intentional tort such as battery. Without being critical, the best the plaintiff could offer was the stated purpose of the amendments.
3. Despite the absence of references to anything beyond breach of contractual duty of care by the Minister and in the associated extrinsic materials, (the clause notes and fact sheet), there is good reason to think that Parliament fully intended to do more than remedy the perceived difficulty caused by the Astley case. The state of the law in relation to the meaning of "fault" as it appeared in the TCNA is discussed by Brooking J in Horkin v North Melbourne Football Club Social Club (above). "Fault" in the Wrongs Act 1958 (Vict) was the same as in the TCNA. In a factual scenario not dissimilar to those in the present case, a primary issue was whether contributory negligence was a defence to the tort of battery.
4. At 158 his Honour adopted what he saw to be the prevailing view that the first limb of the definition of "fault" applied only to defendants; that is, that part ending in "....liability in tort".[16] That meant the defendants could not rely on the torts of trespass to land and battery committed by the plaintiff to found an apportionment; apportionment was not possible unless the second limb of the definition applied and at common law the defendant to an action for battery could set up contributory negligence. His Honour went on to hold that contributory negligence was not a defence at common law (as noted above), and accordingly was not under the Wrongs Act 1958 available to a defendant in an action for intentional battery.
5. Of course, the particularly critical words removed by the amendment of the second limb of the definition of fault are "...or would, but for this Act, give rise to the defence of contributory negligence." It is obvious that par (a) of the definition of wrongful act removes an obstacle for defendants wishing to raise apportionment for contributory negligence in response to a claim in respect of an intentional tort. If contributory negligence was not a defence at common law, no apportionment was available under the TCNA. That is no longer the case.
6. Given that "wrongful act" includes an act or omission on the part of a person suffering damage that causes or contributes to that damage and that constitutes a failure to take reasonable care, apportionment is available in respect of any act or omission that gives rise to a liability in tort, or would if it caused damage to another person, give rise to a liability in tort.
7. As I have indicated, the language of the definition of "wrongful act" is quite clear and unambiguous. The purpose of the amendments beyond par (b) is readily apparent when the law concerning the definition of "fault" under the TCNA is considered. This is not a case in which there is any real need to look at the permissibility of implying words of limitation or otherwise 'reading down' the provision, as discussed in Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9, 253 CLR 531. Legislation must be construed by reference to what Parliament has said through its enactment, with the language actually employed the surest guide to legislative intention. I hold that apportionment for contributory negligence is available in relation to the plaintiff's claim for intentional trespass to the person.
8. As to that apportionment, it is well established that what needs to be considered are the comparative degrees of responsibility. The exercise is to assess the degree of departure from the standard of care of the reasonable person, and of the relevant importance of the acts of the parties in causing the damage. It is the whole conduct of each party in relation to the circumstances which must be subject to comparative examination.
9. In this case, on the one hand, the plaintiff's act was an intentional one, as I have held, intended to cause some injury. In Horkin at 165 Brooking J observed that it was easy to understand why the law, as a matter of policy, would withhold the defence of contributory negligence in cases of intentional as opposed to negligent trespass to the person; the reason was to be found in the difference between the fault of the defendant and that of the plaintiff, being one "not merely in degree but in kind, and the social condemnation attached to the fault differs markedly".
10. Similar considerations arise in a case such as the present. The defendant was in a much more advantageous position physically, both in size and location, and he was sober. He punched a very obviously drunken man. It was part of his work responsibilities to deal with unruly patrons as peacefully as possible. He must bear a greater proportion of responsibility. That said, I am satisfied that the plaintiff failed to exercise reasonable care for his own protection. It is not just that he punched the defendant immediately before being punched. On the evidence, he was unruly, unco-operative and antagonistic in the short period of time leading up to the incident. That included punching Mr Thorne. After continuing to argue, he walked away from the Club, but decided to return determined, it appears, to continue the confrontation. A risk of injury to himself by punching the defendant in those circumstances was reasonably foreseeable. I would apportion responsibility 80 per cent to the defendant, 20 per cent to the plaintiff.

1. The plaintiff's date of birth is 6 April 1986. At the time of the injury, he was living with his sister, Ms Leonard, having separated from his partner of some years eight weeks before the injury. He has a daughter who was four years old at the time of the injury. I am satisfied that before being injured, the plaintiff was an active man. He played golf regularly and enjoyed "four-wheel driving", skating at times, and occasional fishing and shooting with his mates. He enjoyed socialising and had a wide network of friends. He had held various labouring jobs but the extent of that work and whether he had regular work at the time of the injury is in dispute.
2. As there is no dispute about any of this, the following is mostly taken from the plaintiff's particulars of claim. The plaintiff was taken by ambulance from outside the Club to the Royal Hobart Hospital where he was incubated and underwent a brain scan. That revealed a number of haemorrhages of different types and in different locations. He underwent a de-compressive craniotomy and the insertion of an intracranial pressure monitor. He was an inpatient at the Hospital until 27 April 2015, a period of 40 weeks and two days. During that period, he spent about two months in the Intensive Care Unit and seven months in the Acute Rehabilitation Unit.
3. From the time of admission until his discharge, he was noted as suffering from a number of problems including:
   • Fluctuating levels of consciousness.
   • Severe bilateral ankle plantar flexion contractions, secondary to significant spasticity in bilateral plantar flexors.
   • Minimal active movement of upper and lower left limb.
   • Poor left side awareness.
   • Left shoulder and arm neurological pain.
   • Right leg deep thrombosis.
   • Tonic clonic (epileptic) seizures.
4. During his time in hospital, he underwent very extensive investigations and treatment including radiological investigations, a cranioplasty, periods of sedation, physiotherapy, occupational and speech pathology and a very wide range of medication administered by "PEG" - a tube inserted via the nose or abdominal wall directly into the stomach.
5. On 27 April 2015 the plaintiff was transferred to a group home known as Oakdale Lodge. He was there identified as requiring 24 hour care, full assistance with self-care and toileting, full assistance with wheelchair mobility, full assistance with PEG administration, assistance with functional transfers via hoist and slings and fluid dietary requirements.
6. On 7 January 2017 the plaintiff was transferred from Oakdale Lodge to a group home in Mornington Tasmania operated by Eskleigh Foundation Corporation where he remains. He shares with three others. In his time there, he has undergone regular assessment and treatment by general practitioners, rehabilitation therapy, continued use of a diverse range of medications, physiotherapy and breathing assistance at night. He has had multiple attendances at the Hospital for treatment of conditions including diverticulosis, gastrointestinal bleeding, deep vein thrombosis, urinary tract infections, right middle lobe pneumonia, sleep apnoea and bacterial infections. In 2018 he had surgery by way of an elongation of the right Achilles tendon.
7. For a considerable period he suffered bladder dysfunction and post-traumatic erectile and ejaculatory dysfunction. By August 2022 he had been weaned off firstly an indwelling catheter and subsequently, a supra-pubic one. Although there has been considerable improvement of late, particularly in his mobility, his present symptoms include cranial nerve palsy, spastic rigidity to the upper left limb, spasticity of the lower left limb with tremor, reduced power in upper and lower limbs, and profound impairment in all areas of cognitive function. His present treatment includes 24 hour care, ongoing management by a general practitioner, daily enemas, a diverse range of medication, machine assisted breathing at night and behavioural regulation and support.

1. As earlier noted, this is a point of major contention. Given that the determination of the issue affects quite a number of the heads of damage, I will deal with it at this point. It is common ground that the plaintiff's life expectancy has been reduced as a result of his injuries. The question is by how much.

1. The plaintiff relies on the opinion of Professor Stephen Davis, an eminent consultant neurologist, who examined the plaintiff in August 2022, and reviewed a number of medical reports and publications. His opinion as expressed in a report dated 16 August 2022 is that the plaintiff's life expectancy "should be reduced to some extent, probably in the order of ten years from that of an average healthy male." In his report, Professor Davis does not address life expectancy figures beyond that, so it is not clear from what figure ten years has to be deducted. He was not called to give evidence.
2. The agreed 2019 life expectancy tables in evidence show an expected lifespan for Australian males of 82.85 years. The table also shows an expected further 47.50 years for males aged 36, and 46.53 years for males aged 37; that is, ages of 83.50 and 83.53 years respectively. That means in effect, in Professor Davis's view the plaintiff had 37 more years to age 73.5.
3. The defendant relies on the evidence of Dr Jordan Brooks, a senior researcher at the Life Expectancy Project based in California, USA, who has a doctorate in biostatistics and a Master's degree in Public Health. He has given evidence on the issue of life expectancy in many countries. As might be expected, the Project is an organisation devoted to the study of life expectancy as affected by various medical conditions, primarily neurological injuries and disabilities.
4. The researchers examine a large number of individual cases and "stratify" estimates according to important factors such as age, gender and the severity of long-term disabilities and comorbidities. Reduction in life expectancy is closely related to the extent of the loss of functional skills, especially motor and self-care function. For the purposes of estimations, there is a factor described as "Walking and feeding skills", within which are four groups or categorises: "Does not Walk, Fed by Others", "Does not Walk, Self-Feeds", "Some Walking" and "Walks Well".
5. There are two reports from Dr Brooks in evidence; the first is dated 30 November 2020, (co-authored with Dr David Strauss also of the Life Expectancy Project), the latest is dated 7 October 2022. The defendant relies on the estimate, more favourable to the plaintiff, in the later one. In a preliminary "Summary" section of that report, Dr Brooks notes the projected life expectancy of an Australian man the plaintiff's age as 47 additional years to 83.5, with the current normal current figure being 45.6 years to age 82.1. He provides an estimate for the plaintiff of 28.4 additional years to age 64.9, a reduction of 17.2 years from the current normal figure, 18.6 from projected life expectancy.
6. As to Dr Brooks's distinction between projected life expectancy and the "current normal figure", his reference to the former accords with the agreed tables; the latter is taken from data of the Australian Bureau of Statistics.
7. In a later section entitled "Updated TBI life expectancy research", Dr Brooks deals with what can be derived from the Project's 2022 research study. The plaintiff is put in the group "Does not Walk, Self-Feeds". On that basis, adjusted to the plaintiff's age of 36.5 years, Dr Brooks estimates the plaintiff's life expectancy as an additional 29.6 years to age 66.1; a reduction of 16 years from the current normal figure. However, after discussing the plaintiff's condition and the positive and negative factors, Dr Brooks says, "Taking account of his TBI [traumatic brain injury] and epilepsy, I now estimate Mr Leonard's life expectancy to be 28.4 additional years to age 64.9." Dr Brooks gave evidence in the trial.
8. From the reports generally, it seems to be common ground that the plaintiff's condition gives rise to multiple risks relevant to life expectancy. These include risks of aspiration and chest infection related to impaired bulbar functioning, cardio vascular complications arising from severe obstructive sleep apnoea, and of urosepsis, pressure ulceration and infection, neurodegenerative diseases and neuroendocrine disorders.
9. I have included "severe obstructive sleep apnoea" in this summary because it is referred to by both experts in those terms, and despite the plaintiff's submission that it is wrongly described as that, and is merely "sleep disordered breathing". That expression is taken from discharge notes following an overnight admission on 10 April 2018. The purpose of the admission was to carry out a diagnostic test in relation to possible sleep apnoea. The admission was under the care of Dr Mestitz from whom there is a later report dated 16 August 2018 which gives a description of "very severe obstructive sleep apnoea syndrome."
10. It is clear from all of the material that mobility is a key factor for the life expectancy following TBI. The parties agree that "absence seizures" are potentially also an adverse factor. They are a phenomenon in which a person, without warning, loses contact with the environment, usually for four to five seconds, but occasionally for as long as half a minute. To an onlooker the person appears momentarily dazed, stops speaking and becomes immobile.[17] They are referred to as non-tonic clonic seizures and were generally regarded as epilepsy, although Prof Davis seems to have a strict view about this. Of course, it follows from what is set out above that are other adverse factors, but it was these two issues to which attention was primarily directed.

1. In his report, in a section entitled "Current status" Professor Davis notes the plaintiff has been in a supervised shared residential facility for eight years, and that no seizures have been recorded. He goes on to relate a "History from [the plaintiff's] carer", Joshua Short. (Mr Short was not called to give evidence.) That includes information that the plaintiff uses a four prong walking stick for short distances, generally supervised but sometimes on his own for short periods. There have been occasional falls. Mr Short also apparently advised that the plaintiff needs assistance with food preparation but is able to eat independently.
2. Professor Davis goes on to set out a number of features of the plaintiff's condition in describing his "ongoing management". This information also seems to have come from Mr Short. Prof Davis says, "[The plaintiff] can just stand but relies for safety on a single point walking stick and has only a limited walking distance. He relies on the walking stick but can just stand unaided. Unfortunately there are however falls." Additionally, Prof Davis refers to "absence episodes" every day, more so when the plaintiff is fatigued, but says there are no obvious tonic clonic seizures and "it seems that [the episodes] have not been conclusively diagnosed as having an epileptic basis."
3. Statements in the "Opinion" section of the report include:
   • The plaintiff was examined in a wheelchair; he was able to walk slowly, with an incomplete quadraparesis.
   • He could only really stand safely with a single point stick nearby and was certainly unable to walk without this support and only for a very limited distance.
   • He can walk to a very limited degree with a single point walking aid but is often wheelchair reliant.
   • As to life expectancy, the patient is profoundly disabled but improvements in the past couple of years have been that he can successfully control his bladder functioning without the use of a catheter and there have been no urinary infections.
   • There have been no recent episodes of hospitalisation for aspiration pneumonia; he has a normal diet and no choking has been witnessed.
   • He has a limited gait capacity but does walk for some extent with a single point stick and is at risk of falls.
   • There have been no pressure ulcerations.
   • Persistent seizures are associated with increased mortality in a study by Strauss and colleagues in 2003, but notably the plaintiff is not having epileptic seizures at present.
4. Professor Davis views the risk of complications arising from the brain injuries, as "chiefly" being the risk of aspiration and chest infection related to impaired bulbar functioning. He notes that the plaintiff requires CPAP (continuous positive airway pressure device) at night and sleep apnoea is certainly a significant risk factor for cardio-vascular complications, although these would be reduced by the CPAP treatment.

1. The factual information used by Dr Brooks comes from a number of medical reports, including that of Professor Davis. In his report of 7 October 2022, Dr Brooks, after noting that mobility is a key factor for life expectancy following TBI, he said it was important to consider precisely how the plaintiff's condition compared to that of persons in published research studies.
2. Dr Brooks notes that the updated materials indicate the plaintiff now walks short distances using a four prong stick with supervision, and sometimes covers very short distances in his home environment without the stick. He notes that there had been falls, including a major one in August 2020 that resulted in a hip fracture. He says that the plaintiff's present mobility is certainly an improvement over being permanently wheelchair-bound, but his present skills still do not meet the criteria for functional walking as used in their research.
3. The Project's TBI studies are based on a national database from the US Traumatic Brain Injury Model System (TBIMS) and on a database maintained by the California Department of Developmental Services (CDDS). The statistics are based on some 14,800 cases. As I outlined earlier, the research criteria involves the categorisation of individuals in relation to functional independence. There is a "7-point Functional Independence Measure" (FIM) to assist in this process.
4. As noted above, solely on the basis of the Project's 2022 research study, Dr Brooks estimates a life expectancy to age 66.1 years. That figure is derived as follows. The groups such as "Does not Walk, Self-Feeds" are given numerical values according to ten year age brackets, with that value then been used as the dividend, and the corresponding life expectancy for the general population, used as the divisor. In the plaintiff's case, at age 36.5, that gives a figure of 67% of normal.
5. Dr Brooks chose to work with a figure of 65%, the reasons for which he explained as follows. The plaintiff's mobility is better than average in the "Does not walk" group. That was a positive factor for life expectancy and suggest that 65% is too low, but any underestimation of his life expectancy must be small. This can be demonstrated by noting that the "Some walking" figure for men of the plaintiff's age is about 71% of normal life expectancy, only slightly higher than 65%, and the plaintiff's disabilities are markedly more severe than average in that group. "For example, fewer than 15% of persons in this group required 24 hour supervision."
6. Dr Brooks classified the plaintiff as being FIM level 5 "Household Locomotion or Supervision", albeit at the higher end of that level. The detail of that classification is:

"The patient walks only short distances (a minimum of 15 metres) independently with or without a device. The activity takes more than a reasonable amount of time, or there are safety considerations or the patient requires standby supervision, queuing or coaxing to go a minimum of 50 metres."

1. As can be seen, read in a certain way, a person who requires standby supervision to go a minimum of 50 metres fits into this class. FIM levels 1-5 inclusive are all described as within the broader category of "Does not Walk," while FIM level 6 is given the label "Some walking". It is here that there arises a point of contention between the parties. It is in respect of the criteria used and into which group the plaintiff should be properly put.
2. The matter becomes a little more contentious by the "Instructions for the Use of the FIM Decision Trees". Those instructions provide a clear delineation between situations involving "No Helper" and those involving "Helper". From the detail in the instructions which relates to walking locomotion and locomotion on stairs, it is clear that a person who provides standby supervision is regarded as a "Helper".
3. The FIM has seven levels of classification. The first is "Total Assistance" which relates to patients who perform less than 25 per cent of effort, or require the assistance of two people, or walks less than 15 metres. The opposite end of the scale is "Complete Independence: The patient walks a minimum of 50 metres without supervision or assistive devices [and] performs the activity safely".
4. Dr Brooks's first report of 30 November 2020 puts the plaintiff in the "Does not Walk, Self-Feeds" group. In his report, Professor Davis comments on that approach and he says it is incorrect to say the plaintiff "does not walk", pointing out that the plaintiff can walk a short distance with the use of a walking stick. Of course, Dr Brooks's later report still has the plaintiff in the same group. He accepts greater mobility than when his first report was prepared, but says the plaintiff's present skills still do not meet the criteria for functional walking.
5. He emphasizes that even persons in the "Some walking" group of the study have a 13 year reduction from the current normal figure, (as distinct from 16 in the plaintiff's case), and the plaintiff's disabilities are "considerably more severe." Dr Brooks expresses the view that any suggestion the reduction should be less than that "is wrong".
6. Additionally, Prof Davis addressed the issue of epilepsy dealt with by Dr Brooks in his first report. He says the plaintiff had not then had any documented seizures since being in the share house (2017), although he remains on anti-seizure medication. In his view, the plaintiff has not met the criterion for having at least one seizure in the last 12 months, and the (then) suggested further reduction in life expectancy of 2.6 % related to this issue seemed to be unreasonable.
7. In his later report Dr Brooks maintains a reference to epilepsy as such, noting the research evidence clearly indicating epilepsy to be an adverse life expectancy factor. He accepts that the effect of epilepsy is greater for persons with the more severe generalised tonic clonic seizures than for those persons, such as the plaintiff, who suffer non-tonic clonic seizures. His information was that the plaintiff has the latter type of seizures on a daily basis. He notes a study by Dr Strauss et al in 2003 which reports excess death rates in persons who had at least one non-tonic clonic seizure annually. On that basis of annual events, he provides an amended assessment of a further reduction for this factor of 0.8 years but says his impression is that this is optimistic because the absences occur daily.
8. In cross-examination, Dr Brooks explained that the CDDS criteria are different than the FIM levels on which the TBMIS data is based, and which is used in the project's research criteria. They had carried out a validity check between the USA material and the Californian material and found that the two fit together reasonably well based on the information available. As opposed to the seven FIM levels, there are four CDDS criteria: "(1) does not walk; (2) walks with support (eg a hand held device); (3) walks un-steadily alone ten ft; and (4) walks well alone 20 ft, balances well."
9. Dr Brooks agreed that if the Court were to find that the plaintiff walked well alone for at least 20 feet, and balanced well, (criterion (4) of the CDDS criteria), then he would fit into FIM level 7 although, he added, there would be other considerations to take into account.

1. I was not asked by the plaintiff to treat the information provided by Prof Davis as inaccurately stated, or in need of modification. The summary provided by him was based on information provided to him by Mr Short as well as Ms Leonard, and his own observations. However, in closing the plaintiff sought to diminish the impact of Dr Brooks's opinion by reference to evidence suggestive of a greater lever of mobility than that assumed by him. Of course, his assumptions are largely based on the information from the Davis report. As the defendant has referred to other evidence relevant to the issues, it becomes necessary to look at some underlying facts.
2. The plaintiff's sister, Karen Leonard, gave evidence about these matters. Ms Leonard said that she and the plaintiff recently went to Melbourne together and watched a football game. She said that the plaintiff did a lot of unassisted walking. He asked her to hold his walking stick and stand behind her "and away he goes". She said that to be honest he could walk further than her. They went to a direct factory outlet where he walked for about 800 to 900 metres albeit slowly. The witness did not say whether this was with a stick or not, and I assume she was close by. As to negotiating stairs, she said that he was very capable, "... now he just flies up and down those stairs".
3. Ms Leonard spoke of two long walks completed by the plaintiff. Although she was not present, she related that he had in January 2022, walked across the Tasman Bridge, a distance of about 3.5 kilometres, something that he had an ambition to do. He also completed a walk on Bruny Island, something that involved going up and down a considerable amount of steps which he did by himself unassisted. It seems that she has watched video footage of those events.
4. When asked about the plaintiff being "vacant or absent" - a staring appearance - Ms Leonard said that she had seen him in such states, but not recently. When they occurred they were probably less than ten seconds long when he goes into a staring mode and then just snaps out of it. She said she and the plaintiff are very close and she visits him about two to three times a week. She could not recall the last time she had seen such an episode.
5. There is a good reason to treat her evidence with some circumspection. Without wishing to be unnecessarily critical, she was - understandably - partisan, and showed reluctance to concede obvious points. In cross-examination about the plaintiff walking unassisted, it was put that there was somebody with him all the time. Ms Leonard agreed that someone was always going to be with him because "if we don't see it, otherwise we cannot give you the facts if someone is not with him...". It was again put that when he does walk, he always has a carer close by, and she replied, "It is no different to someone walking next to you down the street. Someone might walk next to him or behind him." She agreed that he did not walk outside unaccompanied at all to her knowledge.
6. Further, despite what she said in evidence, Ms Leonard agreed that she had told Professor Davis the plaintiff had "absent seizures" which was correct "to the best of her knowledge on that day." (Of course, Professor Davis notes daily absence seizures.) Ms Leonard also agreed that in 2020 or 2021 in respect of the hospital admission, she had completed a form confirming absent seizures which occurred frequently, when "focused/tired" (sic).
7. An expert source of evidence as to the plaintiff's present mobility is Joshua Hutchins, a qualified exercise physiologist. Mr Hutchins has for the past three years, and remains, closely involved with the rehabilitation of the plaintiff's physical functioning. In a report dated 23 August 2022, Mr Hutchins says the plaintiff has made significant improvement, and is striving to become more independent; he has regained a moderate level of function in his left leg and some in his left arm. Surgery on his left arm to allow greater movement is due.
8. The report contains the following:

"The progress Matthew has made has allowed him to ambulate independently for short distances and with a four-point stick for longer durations. He can reciprocally climb stairs with a hand rail and has demonstrated safe transfers from laying to sitting, sitting to standing, in and out of a car and even standing from the floor. Matthew's gait is mostly limited by his lower limb strength. He continues to struggle to increase his gastrocnemius strength (used for pushing off your toes when walking) on his left leg. This gives his gait a limping effect. He had made some improvement with this but with further training is required. As this is a neurological weakness, progress occurs at a much slower rate."

1. In evidence, Mr Hutchins said the plaintiff's full capacity for walking independently without the use of a stick had not been tested but at times he does about ten laps of the gym, "so that would be 100 metres, probably more." Mr Hutchins explained the plaintiff's limitation on his gait by lower limb strength as relating to plantar flexion, "which is where you push off your toes when you walk". The plaintiff has weakness in the ankle and lacks power generation so he has to use other muscles, "more through his hip", to walk with his left foot. Mr Hutchins said there was no limitation on the right; the plantar flexion deficit was unilateral; the right side was "fine".
2. Counsel directed Mr Hutchins to instructions issued in February 2021 by his team leader about the plaintiff's care; in particular, that the plaintiff should adhere to distances/durations as per Mr Hutchins' program. The witness said he has now eased off quite a bit on imposing restrictions on distances and durations for the plaintiff's walking; he now imposes no real limitations as such and it was more up to the plaintiff's discretion.
3. Mr Hutchins was taken to a report he made on 29 April 2021. That contained advice to the following effect. As part of continuing work on walking endurance and leg strength, and in determining "how long he can complete before needing to stop", the plaintiff was able to complete 30 minutes with minimal breaks. In evidence, Mr Hutchins explained this consisted of going up and back a number of times on a walking track about 150 metres long. Both he and a support worker were behind the plaintiff with a wheel chair for the minimal breaks needed. (From later material, I infer this walking was with the aid of a stick.)
4. The report states the plaintiff had said to him he wants to walk without his chair "as it makes him feel more comfortable and able to walk alongside his support worker and not like they are following him." Mr Hutchins explained that he spoke to the plaintiff about this, and it seemed to be the case that it did not "sit right" with him that the support worker was just there to follow him, rather than as a friend or someone to accompany him. The witness agreed he had spoken to the carers about this and said it would be appropriate on conditions that he not walk for more than 20 minutes, only on well pathed locations and not on days when he attended his EP sessions.
5. Mr Hutchins agreed that on 5 May 2021, he reported the plaintiff was continuing to improve; he was comfortable the plaintiff was able to walk using his walking frame for up to 20 minutes at a time. He explained in evidence that this was at quite a bit slower than a typical walking speed but that the plaintiff was then getting definitely further in 20 minutes than he did 18 months before; he was a bit faster on his feet and did not take so long with things like turning. Mr Hutchins confirmed his report that the plaintiff was then capable of walking over 30 minutes uninterrupted and did not require the wheel chair following him for periods of 20 minutes or less, which was still the limit set. Support staff were required to walk with the plaintiff and assist him getting to the walking location.
6. Mr Hutchins spoke of the Tasman Bridge walk. In June 2021, the plaintiff and a carer reported to him the plaintiff's wish to walk over the Tasman Bridge in the near future. Appropriate arrangements were put in place, the walk being anticipated to at least exceed 40 minutes. Mr Hutchins said he was aware the walk took place. It seems the plaintiff had two support workers with him for the whole distance, one with a wheel chair, and there was a car waiting for him at the end so that there was no need for him to walk back. He used the bridge rail for stability rather than his walking frame. There is no evidence about rate of progress or how long in fact was taken, nor about the number of required stops.
7. In relation to absence seizures, Mr Hutchins said he did "not think" he had noticed any times when the plaintiff drifted off and appeared not to be engaged.
8. In cross-examination, he agreed that in relation to walking, the plaintiff always has someone "around him" and although he can walk quite a way without any aids, there was always a risk of falling. He agreed he examined the plaintiff after a fall on 30 May 2022.[18] Some bruising resulted. When asked whether it was true that he would not recommend the plaintiff walk without supervision in the vicinity, Mr Hutchins said, "Most likely. He can't actually go anywhere without anyone,..."; that was "more or less for his own safety."
9. I should add a reference to the evidence of Katrina Curtain, an occupational therapist called by the plaintiff, who gave lengthy evidence about his various needs. In cross-examination Ms Curtain was shown Mr Hutchins' report of 23 August 2022 and other material relating to the plaintiff's current mobility. In her view, the general need for 24 hour support remained. She said that for example, the plaintiff still needed someone with him when he was walking, "whether that's up to 20 metres or up to 20 minutes with a frame, there's still a support worker there."
10. As I alluded to, where the evidence of Ms Leonard differs from that of Mr Hutchins, I prefer the latter. With Ms Leonard's evidence, there is a level of exaggeration, perhaps illustrative, but I am not satisfied her evidence is entirely reliable. On the basis of Mr Hutchins' evidence I am satisfied the plaintiff has a capacity for a slightly higher level of mobility than the broad descriptions suggest. But at the same time, I think Prof Davis's summary of the general situation is a fair one and I do not accept that Mr Hutchins' evidence has any impact on Dr Brooks's analysis to the extent suggested.
11. In addition to taking into account that slight increase in walking capacity, I feel it is also appropriate to take into account what I see to be the plaintiff's motivation and his determination to test his limits and to improve his mobility as much as possible. However, because Dr Brooks takes much from Prof Davis's descriptions any more favourable view affects both opinions in the same way.
12. In terms of the absence seizures, as non-tonic clonic seizures I am satisfied that irrespective of whether they are properly labelled as amounting to "epiliepsy" they are a factor in the assessment of the plaintiff's life expectancy. Dr Brooks's assumption of annual seizures, I think is much more in line with the evidence I heard, although I repeat that the estimate of daily events seems to have been given to Prof Davis by Mr Short. I am not satisfied on the whole of the evidence that they do not occur at all. In any event, as Dr Brooks in his analysis assumes annual events, there is no need to adjust his assessment on that basis.

1. The plaintiff submits that I should make a finding in accordance with Professor Davis's opinion. In support, it is argued that in terms of Dr Brooks' assessment, the plaintiff should be classified in FIM level 7; that is, "Complete Independence: the patient walks a minimum of 50 metres without supervision or assistive devices. The patient performs the activity safely." This assertion is based on the evidence of independent walking and without an aid for about 100 metres. It is also based on Ms Leonard's evidence of the plaintiff being very capable of getting up and down the stairs.
2. The plaintiff also points out that using the CDDS criteria, the plaintiff is in the top of the four categories; that is, "walks well alone 20 ft, balances well". As I understand the argument, it is also put that in the application of the FIM assessments, the role of the "helper" should be confined to actual assistance and not be extended to supervision or standby supervision. Counsel submits that if the plaintiff were to be put into FIM level 7, then using the agreed life expectancy figure for a male aged 36 (47.5) and, as I see it, the same general approach as Dr Brooks, the result is a life expectancy of about 39.5 years, a reduction of 8 years from the projected figure. That approach however, makes no allowance for any required adjustments for other operative factors.
3. As to those submissions, I am not persuaded that the whole of the evidence justifies the substantial shift from what Dr Brooks views the upper range of FIM level 5 into FIM level 7. At the very least, supervision is required for safety purposes. There remains a risk of falling. The need for supervision can be seen as an indicator of mobility. In addition, it seems to me that the FIM levels are used to denote a general or average level of function in the sense of describing a general condition, rather than what might be achieved in a controlled therapeutic environment. At the same time, I would accept that an ability to exceed the physical parameters of a FIM level in certain conditions cannot be simply ignored.
4. If anything, the evidence as to present capacity might put the plaintiff in FIM level 6 "Modified Independence", but Dr Brooks has pointed out that such a categorisation in broad statistical terms - ignoring the plaintiff's other specific difficulties - only results in a three year improvement in the life expectancy prognosis. He notes the plaintiff's disabilities are markedly more severe than average in that group.
5. I do not regard the criticism of the use of the word "helper" in the FIM decision trees as having any real merit. It is not a misuse of the word to describe as a helper, someone who provides supervision of walking or standby supervision, and it is clear from the relevant material that for the purposes of classification and analysis, a supervisor is termed a "helper".
6. In advancing Professor Davis's estimate, the plaintiff says that it is a well-researched opinion. That seems to be so, in the sense that he seems to have studied "multiple papers" being publications provided to him by the plaintiff's solicitors, included in which was a 2003 study by Dr Strauss and colleagues, but it seems nothing more recent of the Life Expectancy Project. I note Dr Brooks's observation that Professor Davis provides no explanation for how his figure of 10 years' reduction is arrived at and that it does not appear to be based on any objective evidence. In my view there is some merit in this point. No doubt Professor Davis brought to bear a high level of professional expertise and experience but the opinion expressed is not overtly based on any comparative analysis or data.
7. Counsel for the plaintiff also submits that "many of the assumptions" made by Dr Brooks do not fit the evidence. Two examples are given. First, Dr Brooks has assumed severe bilateral plantar flexion contractions. The submission that this does not fit the evidence ignores a body of evidence. There is evidence of bilateral plantar flexion issues. It will be recalled the particulars of claim mention significant spasticity in bilateral plantar flexors. Prof Davis reports the plaintiff told him about a right sided foot drop. In Ms Curtain's first report of 4 September 2018 she comments on early physiotherapy and rehabilitation reviews; in particular, physiotherapy opinion that the main barriers to the plaintiff's expressed desire to work were fixed plantar flexion contractions of ankles bilaterally. Similarly, in a report dated 8 September 2022, following a personal assessment of the plaintiff, Dr Sigrid Denehey reports the plaintiff had a right foot drop. That is a plantar issue.
8. In the absence of any explanation, I can only infer that the right foot still presents something of an underlining problem, but is of no particular function or significance at the moment. Because it relates to mobility, the issue would have to be taken into account but only to that extent.
9. The other "example" given by the plaintiff is the proper diagnosis for the sleep apnoea disorder, a matter I have already dealt with.
10. Before going on, I will say something about the plaintiff's possible pre-injury medical condition(s) or any other factor that may have affected his projected life expectancy absent the injuries he sustained. As it will later appear, this issue is given some prominence in relation to contingencies affecting the assessment for loss of earning capacity. In the present context however, it does not feature significantly in the debate. Prof Davis mentions being told, apparently by Karen Leonard, that the plaintiff was a social drinker but often drank to excess on weekends.
11. Apart from reference to three accidents in which no serious injury was sustained, Prof Davis notes an attendance at the Royal Hobart Hospital emergency department on a couple of occasions in April/May 2014 with epigastric pain adding, "... they mentioned excessive alcoholic intake." Prof Davis further adds, "His sister told me that he had 'gallstones'." As will be later shown in these reasons, the reference to gallstones does not appear to be correct. There were three admissions in April/May 2014, each related to alcohol intake, the last involving an inflammation of the gallbladder associated with an alcohol binge. There is no suggestion in the expression of his opinion about life expectancy that any pre-injury condition or predisposition was taken into account.
12. On the other hand, Dr Brooks, in both reports, sets out a list of positive factors as against negative factors with the later outnumbering the former. In the list of negative factors is a history of pre-injury alcohol abuse and a history of aggressive and violent outbursts. In the later report, he says that if the balance of positive and negative factors is considered more favourable, or less favourable, than average among persons with comparable disabilities then some adjustment to the reported life expectancy may be indicated; was not clear to him that any such adjustment was indicated in this case, adding that although the list of negative factors is longer, he has placed greater weight on the improvements in mobility over the last two years.

1. As the defendant has pointed out, there can be no exactitude in estimating life expectancy: Allen v Chadwick [2014] SASCFC 100, 120 SASR 350 at [71] per Kourakis CJ. The task is to determine the probable life expectancy from the present time: Victorian WorkCover Authority v Asixa Pty Ltd [2010] VSC 467 at [148].
2. That the evidence of Dr Brooks is entirely statistical in nature is not a basis for rejecting it: Hills v State of Queensland [2006] QSC 244 at [28]- [36], a case in which there was a similar debate to the present one. At [36], McMurdo J accepted that statistical analysis had its limitations because in principle the estimate of the plaintiff's survival ought not to be simply a statistical exercise, but should also involve a clinical assessment of individual health and circumstances. His Honour went on to say that, accepting that proposition, nevertheless a clinical assessment does not ensure a precise and correct answer either.
3. In all of this, it seems to me that, in broad terms, weight has be given to both views. Professor Davis is an experienced and respected neurologist who has in fact examined the plaintiff. For those reasons his observations and assessment are to be given considerable weight. That said, there are some aspects that of themselves lead to a downward adjustment. It will be recalled that in his critique of Dr Brooks's first report, he takes issue with the statement that the plaintiff "does not walk". However, not having given evidence, it is not clear that Prof Davis has an understanding of the FIM levels and what criteria are used to put a person in the "Does not Walk, Self-Feeds" group. There is also the issue of the absence of stated objective data.
4. As to Dr Brooks, the Life Expectancy Project and its statistics and analyses are widely used. The analysis is derived from a very large sample of the male general population in the USA and cannot be lightly dismissed. Dr Brooks is very experienced and respected in his field. His evidence was that he saw no reason the conclusions from the Project's statistics would not equally apply in a similar country like Australia.
5. The weight to be given to the statistical material and to Dr Brooks's opinion is significant but his assessment should also be adjusted to some degree. That is because of the doubt as to the current effect of any right sided deficit in plantar flexion, and because of the slightly better picture the evidence paints of the plaintiff's capacity to walk. Nonetheless, I am not satisfied that any systemic error in his approach has been shown. The weight of the statistical evidence is fairly compelling
6. All things considered, I find it more probable than not that the plaintiff's projected life expectancy is to age 68, about an additional 30.5 years from now. As the Civil Liability Act does not apply to the claim, the percentage discount rate for this, and all future claims, remains 3 per cent as settled in Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402. Using the tables in evidence, on my calculation the multiplier from now is 1050.

1. It is agreed that the plaintiff's loss of earning capacity is total; the plaintiff will not return to any form of remunerative work. Viewed as a whole, the evidence about the plaintiff's work history, and more particularly what income he generated, is a little obscure.
2. The plaintiff argues for an award base using quite a high degree of arithmetical precision. The defendant's submit the award should be merely in the nature of a "buffer" or "cushion". Such an approach is appropriate only where the extent of a loss of capacity to earn is difficult to determine or assess. That may be due to a plaintiff's age or lack of pre-injury work history, or where there is no evidence of relevant earning rates. The approach reflects the proposition that the want of precise evidence does necessarily result in non-recovery: see for instance State of New South Wales v Moss [2000] NSWCA 113, 54 NSWLR 536 at [87] per Heydon JA; Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 at [84] per McColl JA (Mason P and Beazley JA agreeing); Allianz Australia Insurance Limited v Kerr [2012] NSWCA 13, 83 NSWLR 302 at [6]- [7].

1. The evidence establishes that the plaintiff is essentially illiterate, having a history of a learning disorder. He left school after completing Grade 10 and worked on a full time basis for a time at a fish factory in Mornington. After that he worked for a business called Trashaway, collecting rubbish bins. In his evidence, the plaintiff said he was a bricklayer's labourer for three years, he thought, and he met Wayne, a person he used to do brickwork with who was a carpenter. He worked for Wayne for three and a half years then got another job as a bricklayer. He thought he worked with him before he was injured. The plaintiff was not challenged about this, the cross-examination merely had him confirm that he had worked for Wayne, a carpenter, for three and half years, a figure he corrected from the three years put in the question. The plaintiff's sister, Karen Leonard, gave evidence that the plaintiff always had a job. The plaintiff's other sister who gave evidence, Christie Barber, said that he worked as a brickie's labourer and "really, that's all Matt ever did."
2. The plaintiff called evidence from two men for whom the plaintiff had worked in different capacities, but each involved labouring. The first witness was Wayne Walker, a self-employed carpenter. Mr Walker said he met the plaintiff in about 2012-2013 when he (the plaintiff) was working as a bricklayer's labourer for a company Mr Walker used which, he explained, was effectively one person; a bricklayer named Peter Saxby. Mr Walker said that Mr Saxby was a sub-contractor of his, and that the plaintiff worked for Mr Saxby. It is a little unclear but he seemed to suggest that the plaintiff had worked for Mr Saxby for 18 months to two years and in that employment was onsite for three to four months each year "sort of labouring for the bricklayers."
3. Mr Walker thought the plaintiff was "a good young kid ... he was punctual, he was a hard worker,... he caught my eye when he first started." Due to a downturn in Mr Saxby's work, the plaintiff asked Mr Walker if he had any work for him, which he did, and so the plaintiff started doing general labouring and trades assistant work. Mr Walker said he paid him $25 to $35 an hour for four to five days a week work, the average weekly total being 40 hours, and paid him by cheque on receipt of an invoice supplied by the plaintiff. The plaintiff worked for him for about six to eight months. Mr Walker was not asked the payee name on the invoices and his evidence was not challenged in any respect.
4. The second witness was Kevin Moorcroft, a bricklayer of long standing. He engages bricklayers and labourers on a sub-contract basis. He said he met the plaintiff in about 2012 to 2013. At that time the plaintiff was working for a man named Wayne Oliver as a bricklayer's labourer, and he asked to work for Mr Moorcroft because he paid more. Mr Moorcroft employed the plaintiff immediately after he finished working for Wayne Oliver. (Mr Moorcroft clearly said "Oliver" and not "Walker," and of course Mr Walker was a carpenter/builder and not a bricklayer. Neither Mr Saxby nor Mr Oliver gave evidence.)
5. Mr Moorcroft said the plaintiff worked for him as a labourer carrying bricks, mixing mortar etc. He described the plaintiff as a good worker; "All he wanted to do was to learn how to lay bricks." Mr Moorcroft had some difficulty in remembering for how long he employed the plaintiff but thought it was for a few years until he was injured, agreeing that it was for "a couple of years" before the injury in 2014. He paid him $20 or $25 an hour for a 40 hour week. As time went on, Mr Moorcroft gave the plaintiff more responsibility, and towards the end of the period, he had commenced laying bricks for inside foundations and the like. According to Mr Moorcroft, the plaintiff definitely would have become a bricklayer well before this trial.
6. In 2013 Mr Moorcroft paid his bricklayers $35 an hour. In 2018 his rate for bricklayer's labourers was $28 or $30 per hour, and $40 per hour for a bricklayer. As at the date of the trial, the respective rates were $45 an hour and $60 an hour.
7. In cross-examination, Mr Moorcroft said that he paid the plaintiff cash, not on the receipt of an invoice. He confirmed the plaintiff worked for him on a sub-contract basis and said he had not heard of a business called Masonry Labour Hire Services. (Australian Taxation Office records show Masonry Labour Hire Services Pty Ltd had an ABN, reference to which appears in the plaintiff's income tax return for FYE 2013 as the plaintiff's employer, or at least the payer of wages to the plaintiff.) None of Mr Moorcroft's evidence about his employment of the plaintiff was challenged.
8. In support of the fact of the full-time continuing employment, the plaintiff points to a number of aspects that emerge from the evidence. First, there is the undisputed fact that on the night of the injury and during the process of being evicted from the Club, the plaintiff was seen to be in possession of a large amount of cash in denominations of $50's and $100's. These were falling from his pocket as he was attempting to find a ticket for his jacket left behind the bar. Next, at the time of the injury, he was living with his sister Karen and paying her rent to do so. She said he was looking to move into a rental property of his own. Although there is good reason to treat the plaintiff as an unreliable historian, and what he said about the periods of time involved cannot be correct, his evidence does in the broad, support that of Messrs Walker and Moorcroft.
9. Next, in a RHH record in evidence tendered by the defendant, there is a note of a conversation between the plaintiff's former partner, Amie (sic), and a social worker on 30 July 2014. Amie is noted as saying the Child Support Agency had his income listed as $30,000, but he now cannot pay as he has no income. (No direct evidence of child support records this was called or tendered.) Other RHH records show that the plaintiff was provided with a medical certificate on 11 October 2010, apparently for an employer, and that on an admission on 3 May 2014 his occupation was noted as a bricklayer.

1. The returns for the financial years ending 2010, 2011, 2012, 2013 and 2014 show the following.
   • FYE 2010 - the plaintiff received a gross income of $15,403 in salary or wages from Michael J Kingston, trading as Trashaway, and was also paid $5,337 in Government allowances (about which there was no evidence).

• FYE 2011 - no income tax return was necessary.

• FYE 2012 - the plaintiff received an income of $29,700 gross as a sole trader in house construction, renovation or repair with an ABN registered in his name; the turnover being $33,750.

• FYE 2013 - in a return completed by the Public Trustee after the injury, there is disclosed income to the plaintiff of $3,490 gross by way of salary or wages as a builder's labourer, this being the return that shows the payer as Masonry Labour Hire Services Pty Ltd. He was also paid $7,992 in Government allowances (about which there is no evidence).

• FYE 2014 - in a return also completed by the Public Trustee, the plaintiff is shown as receiving $246, but the payer is not disclosed and is not otherwise possible to discern the source.

1. The evidence shows the plaintiff's personal ABN was cancelled on 8 April 2013. There is no other evidence relating to Masonry Labour Hire Services Pty Ltd, apart from the fact that its ABN seems to be still registered. Associated with what may be inferred from the returns is a letter from Maurice Blackburn Lawyers who, on 18 December 2017 on behalf of the plaintiff in pursuit of the release of his superannuation, wrote to a doctor saying he had ceased work in February 2013.
2. In support of the suggestion the plaintiff did not have much full time work, the defendant points to the same hearsay evidence of what Amie told the RHH social worker on 30 July 2017. She is also noted as saying that she and the plaintiff continue to see each other daily and still spent a significant amount of time together during the day in the best interests of the child; they continue to have meals together, shop together and be friends.

1. The plaintiff argues the evidence shows he was a good worker, work was plentiful and, on the basis of Mr Moorcroft's evidence, he would have been a bricklayer well before the trial. I am urged to find that he was in full time work, being 40 hours per week when he was injured, and had worked full time for both Mr Walker and Mr Moorcroft. It is on the basis that the plaintiff would have continued to work as a labourer for a time, and then as a bricklayer before the date of the incident and continuing, that the plaintiff's claim is put.
2. Although accepting that the assessment is necessarily a speculative exercise, the calculations put are as follows.
   • 21 July 2014 - 20 July 2018: A labourer @ $25 per hour for a 40 hour week = $1,000 pw, less income tax of $163 and Medicare levy of $20 giving a nett weekly sum of $817; a total of $169,936.

• 21 July 2018 - 20 July 2022: A bricklayer @ $40 per hour for a 40 hour week = $1,600 pw, less income tax of $348 and Medicare levy of $32 giving a nett weekly sum of $1,220; a total of $253,760.

• 21 July 2022 - judgment: A bricklayer @ $60 per hour for a 40 hour week = $2,400 pw, less income tax of $602 and Medicare levy of $48 giving a nett weekly sum of $1,750.

1. The plaintiff says the reasonable outcome of the "speculative" exercise is to base the award for the future aspect of lost earning capacity on $1,750 per week to age 65. From the plaintiff's present age of 37 years and 5 months, I adopt the three per cent multiplier of 983.
2. The defendant submits that there is a sufficient level of inconsistencies in the evidence about income received such that the plaintiff has not established a factual basis for his claim. It is said that the income tax returns, the cancellation of the ABN and the Maurice Blackburn letter suggest a history of low paid intermittent and casual work; that it is this evidence which is the most credible and independent as to the true manner in which the plaintiff elected to exercise his earning capacity, and damages for the loss of that capacity must be assessed in that context.
3. The defendant argues that if the Court is to reconcile Mr Moorcroft's evidence with the plaintiff's income tax returns, I must find one of three things. The suggested alternatives are:
   • Mr Moorcroft was mistaken in his denial of any knowledge of masonry labour hire services, and in fact this was the entity through which Mr Moorcroft engaged the plaintiff in the 2012-2013 financial year.

• The plaintiff was not declaring the cash income he earned from Mr Moorcroft, and from 8 April 2013, was not operating as a sole trader using his ABN.

• Any income the plaintiff did earn from Mr Moorcroft was in fact in the 2010-2011 financial year, and was not of sufficient amount to require the lodgement of an income tax return.

1. As to the second alternative, the defendant says that such a finding would assume the plaintiff is not complying with his obligations under the Income Tax Assessment Act 1997 (Cth) to declare the income, and the Court should be slow to make such a finding.
2. As to this argument, I repeat the earlier observation that none of Mr Moorcroft's evidence was challenged. It was not put to him that he was lying or mistaken about when he employed the plaintiff, or for what period, or about the means by which he was paying him. I think it is unlikely that Mr Moorcroft was mistaken about paying the plaintiff by cash rather than on invoices, or indeed by any other means. There is no doubt that the income tax returns and associated material present a confusing picture, and it might be said that Mr Moorcroft's evidence is a little short of detail in some respects, but I am not able to say that it is inherently unlikely. The evidence being unchallenged, there is no apparent reason to reject it.
3. I acknowledge it is a little difficult to ascertain the chronology of employment and the identity of employers at any particular point in time. The information in the FYE 2012 tax return is broadly consistent with Mr Walker's evidence about the time at which the plaintiff worked for him and that he paid the plaintiff on receipt of invoices. He says the plaintiff previously worked for Mr Saxby. That might suggest undeclared income in the financial year ending 2011. The evidence of Messrs Walker and Moorcroft as to the plaintiff's employment with Messrs Saxby and Oliver respectively, strongly suggests a regularity of remunerative work. That is supported by the other factual matters advanced by the plaintiff. In my view, what are said to be contrary facts are more equivocal and do not carry the same weight.
4. An inevitable consequence of the acceptance of Mr Moorcroft's evidence is the rejection of the defendant's submission that the only reliable indicator of income is the income tax returns. In terms of making a finding that the plaintiff was earning not inconsiderable amounts of undeclared income, I bear in mind s 140 of the Evidence Act which I mentioned earlier in a different context. Such a finding involves a breach of the criminal law. That is a serious suggestion but resolution of it remains on the balance of probabilities and simply depends on the evidence.
5. It might be assumed from all returns that they were prepared by a tax agent. KPMG is shown as agent in respect of all returns, which seems to be an ATO matter of record. The FYE 2012 return was apparently prepared by H&R Block, a tax agent, while the last two returns were ostensibly prepared in-house by the Public Trustee. There is no evidence of what information was given to the various people who prepared the returns. Ms Leonard gave evidence in cross-examination that she assisted the Public Trustee with the plaintiff's work history, which involved "telling the Public Trustee what Matthew used to do and who his employers were", but what information she actually provided was not pursued. She was asked if she knew anything about his superannuation arrangements, and she said she did not. No one from the Public Trustee gave evidence.
6. Contrary to the defendant's submission, I do not see any support in the evidence of accumulated superannuation for the proposition that the plaintiff was only engaged in intermittent casual work to the extent suggested by the returns. The evidence put forward by the defendant relates to the plaintiff's accounts with one superannuation fund, TasPlan. The evidence shows the Public Trustee closed one account in October 2017 with the balance, apparently in the order of about $8,800 being transferred to the other account. That was closed in April 2008 with the balance ignoring insurance claim proceeds, of about the same figure[19].
7. The apparent lack of accumulated superannuation proportionate to continuing full-time employment is not of any great significance. It is entirely consistent with the plaintiff operating as a sole trader with his own ABN and not making any provision for his superannuation, and with Mr Moorcroft paying him cash for an extended period with neither paying any regard to their obligations.
8. Having regard to the evidence of Messrs Walker and Moorcroft and what appears in the income tax returns, I think it likely that the plaintiff was earning money and was simply not declaring it, or understating it. I am satisfied the evidence establishes that as at the date of the injury the plaintiff had a capacity to earn, and the loss of that capacity gives rise to financial loss. In my view, that loss is capable of assessment in a more certain manner than justifies an award on a mere "buffer" basis. However, I do accept the proposition that the evidence demonstrates that had the plaintiff continued beyond the injury with the same work pattern, his accumulated superannuation would be insubstantial. I will return to the question of superannuation when dealing with the discount for contingencies.
9. The next question which follows is whether I am precluded from making an award based on undeclared income. The defendant did not argue the point and I am satisfied that I am not. The law is that undisclosed earnings may be taken into account in the assessment of damages if they are clearly proved, subject to reduction for the tax which should have been paid, and subject to the question whether the earner would have continued to exercise that capacity had the additional tax been levied: H Luntz & S Harder, Assessment of Damages for Personal Injury and Death, 5th ed (Luntz) at [6.6.2] and the cases cited; in particular, Matar v Jones [2011] NSWCA 304 at 16, Morvatjou v Moradkhani [2013] NSWCA 157 at [54]- [56] and in this State, Hendrex v Keating [2016] TASSC 20 at [122]- [129].
10. The evidence has to be scrutinised with special care before an award can be made on this basis, and allowance should also be made for the possibility that the evasion is detected, and liability for the taxation owed and penalties is enforced. I proceed on that basis.
11. The plaintiff, in effect, submits that consideration of the discount for contingencies only arises in relation to the future aspect of the claim, and in that respect, no discount should be made. The particulars of claim contain a claim for future superannuation benefits on the basis, that by virtue of the Superannuation Guarantee (Administration) Act 1992 (Cth), any future employer would have been required to contribute 11% of gross salary to an approved superannuation fund.
12. The claim is put on the basis of a 50% chance of that occurring, with the result being a claim for 5% of the claimed future loss. However, in closing, counsel submitted the better way to approach that claim is to offset it against negative contingencies, arguing that it would "at least" balance any reduction for contingencies such as sickness or unemployment. The defendant argues that any award should be discounted by a figure greater than the conventional discount that would be applicable in the normal or usual case.
13. It would pay to say something about the conventional discount. The issue is thoroughly and authoritatively dealt with in Luntz at pars [7.4.7]-[7.4.16]. The authors conclude that in an average case, for contingencies of mortality, sickness, injury, unpaid leave, unemployment and industrial disputes, the discount should be less than 8.5% for men. They note the practice differs among States, with Western Australia standing out against the trend in most other jurisdictions by accepting the normal discount should be in the range of 2% to 6%, New South Wales adhering to 15% while Queensland has expressly disapproved that figure, in favour of making a determination in each case depending on its facts.
14. In this State, as the authors note, the Full Court in Partridge v Hobart City Council [2012] TASFC 3, 22 Tas R 29 at [182] said it may be that a customary discount of 15% is too high, but did not then (and has not since) ruled authoritatively on the issue. Since then, a discount figure of 10% has been used in a case said to fall into the "ordinary" category: Raper v Bowden [2016] TASSC 35 at [271]. See also Dann v Port Sorell Bowls Club Inc [2020] TASSC 47 at [320].
15. As is clear, the debate in this case about the discount for contingencies goes beyond what is appropriate as a "conventional" discount figure. The defendant says there is evidence specific to the plaintiff that needs to be taken into account. The defendant highlights evidence the effect of which is that the plaintiff is likely to have experienced greater negative vicissitudes in life than someone without his particular history. This arises from his use of alcohol.
16. Matters of ill health specific to a plaintiff are relevant: Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485 at 497-498; Clark v Tiemann Industries Pty Ltd [2011] VSC 500 at [153]. The same is true of being accident prone or risky behaviour: Hendrex v Keating (above) at [167], White v Combridge (1984) 59 ACTR 18 at 20, Geraghty v Angus [1938] SAStRp 51; [1938] SASR 455 at 561.
17. The plaintiff was asked about his pre-injury alcohol consumption. He said that he used to drink a beer every day after work, "but not get pissed every day though. I wouldn't get pissed [inaudible] drink a couple of drinks, then go home." He agreed that he used to drink a bit of beer years ago but said it was not much; "I wouldn't get drunk every night. I would have a couple of drinks and that would do me." He agreed he previously hurt his finger in a motorcycle accident, although he did not remember the particular accident. He added, "I've had a lot of motor bike accidents, trust me."
18. Accepting the plaintiff as an unreliable historian, I note that on 3 August 2018 he appears to have told Martin Jackson, a neuropsychologist, that he drank 12 cans of beer a night, every night. In her report of 8 September 2022, Dr Denehey said the plaintiff reported to her that he was previously a heavy drinker. She noted that he did not have his driver's licence at the time of the injury, having "previously lost his provisional licence for drink-driving on multiple occasions."
19. Karen Leonard was asked whether the plaintiff liked to drink; she replied "Who didn't?" She denied he had any problems with drinking during the time he lived with her. She said that it was not fair to say that he had four to six cans a night adding, "...definitely not at my house anyway". She agreed that he had binges on the weekend but added that if he had care of his daughter he would not drink, and as he had his daughter most weekends he would not drink on most weekends; "not at my house anyway".
20. Christy Barber's evidence was that the plaintiff would have occasional drinks with his mates and just go home, clean up and help Karen, because he lived with her at the time. She said that he was an occasional drinker, and in answer to the proposition that he did like a beer said, "He did, just like any other male does." However, she agreed that the plaintiff "could put away a fair bit ... if he really wanted to have a go at his drinking".
21. Other relevant evidence came from both Messrs Walker and Moorcroft. Mr Walker said that in about the second week of working for him, the plaintiff arrived on schedule but not looking well and stinking of alcohol. Mr Walker told him that he was not to work that day. The plaintiff said that he would sleep it off in the car but Mr Walker insisted he left, asking for his car keys first so that he would not drive. He then rang the plaintiff's girlfriend to pick him up. Mr Moorcroft said that there were two occasions on Saturdays on which the plaintiff did not turn up for work due to alcohol.
22. Hospital notes in evidence relating to the period before July 2014 establish a history of alcohol related illness and injury. The relevant events are as follows:

(a) On 19 October 2006 the plaintiff went to the RHH complaining of facial pain and headache after he fell down a bank on a previous night. He was coughing blood and it seems he did not wait to be assessed, but left.

(b) On 7 June 2008 he was taken to the RHH emergency department at 3.15am by ambulance. He had blood around his mouth and right cheek. He did not remember what happened. Ambulance records note that bystanders informed paramedics he was punched in the face at a nightclub and fell, hitting his head on the ground. He was reported by some as being unconscious.

(c) On 11 October 2010 he went to the RHH suffering from left sided rib pain following a fall from a motor bike the previous day. He was a given a medical certificate.

(d) On 19 May 2012 he was taken to the RHH emergency department by ambulance after walking into the path of a car, reportedly having been clipped by an external rear-vision mirror. He was noted as having been drinking at a hotel and having had 12+ beers and walking home at the time. He had a laceration on his forehead.

(e) On 29 April 2014 at 1.38am he presented to the RHH emergency department with epigastric pain and a history of heartburn. He was noted to drink 4-6 stubbies per day and was diagnosed as having alcohol gastritis

(f) On 3 May 2014 he presented twice to the RHH emergency department with severe epigastric pain, the first time in the early hours of the morning, the second time in the early evening,. The diagnosis was again alcoholic gastritis. He was noted to generally consume 4-6 drinks per day, up to half a carton on weekends, and to have had a "large [alcohol] binge" two days before. It was noted he had continued to drink since his previous presentation and he was advised to abstain from alcohol until the gastritis settled.

(g) On 6 May 2014 he was admitted to the RHH suffering from acute cholecystitis (inflammation of the gall bladder). He was an in-patient for six nights, during which he underwent a cholecystectomy (gall bladder removal). The condition was reported to be associated with an alcohol binge three days before.

1. It appears the health effects of alcohol abuse had reached something of a critical point in early 2014. And of course, a little over two months later, on 19 July 2014 the plaintiff engaged in unruly, offensive and risky behaviour in and around a nightclub with a very high blood alcohol level. The defendants say there is a significant possibility that but for the incident on 19 July 2014, his drinking and risky behaviour would have continued and that, as a result he was likely to have experienced in the future some kind or kinds of debilitating illness or injury - temporary or permanent.
2. The plaintiff has not challenged or explained any of the hospital material or other objective factual evidence that bears on his drinking. There is no medical evidence on the possible long term health effects. Given the nature of their answers to specific questioning, I take the view the problem was greater than his sisters were prepared to reveal. I am satisfied of a history of risky behaviour; in particular, of heavy alcohol use and resultant ill health. A reasonable person could draw the inference that the possible consequences contended for by the defendant exist: Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [109]. I am satisfied that the plaintiff's history of alcohol abuse is such that it gives rise to greater discounting than in a usual case. There is the very real risk of illness, injury and general absenteeism.
3. There are additional negative contingencies relating to other illness, work injuries and leave entitlements. I think it is a reasonable inference to draw that as a sub-contractor being paid cash, the plaintiff would not have been provided cover for work injury. Although there may be an argument about being a "worker" for the purposes of workers' compensation legislation, there is a real possibility that any work injury would not see him compensated. It can also be reasonably inferred that he had no entitlements to sick leave or other leave. I note that neither Mr Walker nor Mr Moorcroft were asked any questions about these things.
4. Given the state of the plaintiff's pre-injury management of his taxation and superannuation affairs, it is unlikely he had his own accident and illness cover. There is no hint of relevant insurance premiums in his income tax returns. It is a significant possibility that his situation I have outlined would have continued for much of his working life. There are also the possible consequences of his tax evasion.
5. I accept the possibility that the plaintiff ultimately would have become employed in the true sense thus giving rise to all associated benefits, but I do not see that chance as a particularly significant one.
6. Such things as a history of alcohol related illness, sporadic employment and immature risk-taking coupled with drug abuse have justified significant discounts: see respectively Clark v Tiemann Industries Pty Ltd (above) at [148]; Parkinson v Kuehnast [1996] FCA 1145 and Bailey v Nominal Defendant [2004] QCA 344 at [12]. There is no presumption that a discount for contingencies cannot, in an appropriate case, be applied to pre-trial loss. Inevitably, there are fewer uncertainties with regard to the past than in relation to the future, and ordinarily it might be expected that there is no discounting of pre-trial loss: Luntz at [6.29]. But in that respect, the period of time between injury and trial is important and the individual circumstances of a plaintiff may justify a discount for pre-trial loss, even a substantial one.
7. The exercise is to make an estimate of the loss; often a rough estimate; Todorovic v Waller (above) at 412. It is based on hypotheses and involves assessing possibilities and probabilities, avoiding mere speculation. The process of estimating possibilities is an imprecise one to be conducted within very broad parameters: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 643.

1. In the circumstances I have discussed, I think it is appropriate to at least commence the scenarios as outlined by the plaintiff set out above; that is, continuous employment as a labourer from the date of injury but working as a bricklayer from 20 July 2018, a period of four years after the injury. The total amount of net income from 21 July 2014 to 20 July 2022 is $423,696. From then to date, assuming the change to bricklaying in late July 2022, the amount is $106,750, making the overall total of $530,446.
2. Against a background of heavy alcohol use, risky behaviour and alcohol related injury to health, there are the factors relevant to contingencies that I have just outlined. There are others. They would include the possibility that he may not have established himself as a bricklayer, and some uncertainty of being offered regular and constant work.
3. In my judgment a reduction of 20 % is appropriate. That produces a figure of $424,356.80.
4. The plaintiff claims interest on the amount awarded for the past aspect of loss of earning capacity, pursuant to s 35A of the Supreme Court Civil Procedure Act 1932. (Interest was not claimed in respect of any other award.) Mr Read submitted that interest on past loss would do more complete justice between the parties, noting that there were concerns raised by Amie to the RHH social worker at the end of July 2014 about the plaintiff's debt levels.
5. Section 35A did not commence until 9 September 2019. It enables a discretionary award of interest at a rate not exceeding the prescribed rate of interest for the whole or any part of the period commencing on the day on which the action arose, and ending on the day of which the judgment is entered. By virtue of r 5A of the Supreme Court Rules 2000, the prescribed rate of interest for a calendar year is a rate equal to 4% plus for the period commencing on 1 July in a calendar year and ending on 31 December in that year, all for part of that period, the last cash rate published by the RBA before that 1 July.
6. In Dann v Port Sorell Bowls Club Inc (No 2) Wood J noted that provisions such as s 35A are designed to assist the Court to do more complete justice between the parties, noting that the object of the interest is to restore the plaintiff - so far as money is able - to the situation in which they would have been but for the defendant's legal wrong; the award should do no more than assist in the restoration of a plaintiff; [6], [11]. Her Honour noted that delay in making the claim for interest is a factor in the exercise of the discretion. In this case, the writ was filed on 17 May 2017 and the claim for interest was not made until 18 August 2022, nearly three years after s 35A commenced. Mr Read acknowledged that a failure to claim in a timely manner might weigh against an award.
7. In Dann (No 2), at [28] Wood J said she could not see how a retrospective order fulfilled the purpose of s 35A of achieving fairness between the parties, and determined that the fair result in that case was to make an award calculated from the time when the section commenced. Her Honour referred to the decision in Simonius v Vischer [1979] 2 NSWLR 322 in which Moffitt P, in the same context, said it would be difficult to contemplate the discretion would ever be exercised in respect of the period before the commencement of the Act. That seems to be established practice, at least in New South Wales: Aussems v Commonwealth of Australia [2005] NSWSC 217 at [65].
8. I propose to adopt the same course and allow interest from 19 July 2019. At that time the prescribed rate was 4% plus the RBA cash rate of 1.25% set on 5 June 2019; 5.25%. Since then, the RBA cash rate was reduced over time to 0.10% on 4 November 2020, where it stayed for the fifteen following months until it was increased to 0.85% on 8 June 2022. From that point it has quickly escalated to 4.1% on 7 June 2023 where it remains, making the prescribed maximum 8.1%. Mr Read suggested an interest rate of 4% per annum applied, as I understand, to the relevant amount for the period in question. The defendant does not oppose the making of an award of interest but differs as to the rate but suggests that 2% is appropriate. Neither party dealt with the question of the period for which interest should be allowed. As to the rate to be applied, I am content to adopt the broad brush approach of both parties.
9. Whatever interest rate is used, it can be at best only a rough guide as to the value of the plaintiff's loss during the relevant period: MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 at 664. The plaintiff is awarded interest because he or she has been deprived of the use of money, not because they have foregone investment opportunities; Gogic at 666. There is nothing in the facts of this case that warrant any refined or specifically tailored approach. I doubt that the plaintiff's asserted debt level at the end of July would have accrued between the date of the injury and then.
10. The median maximum prescribed interest rate for the relevant period is 4.10%. The higher interest rates and the higher level of income came at the end of the period under consideration. In my view, this is not a case calling for the maximum rate and I determine that the rate to be applied is three per cent. Because the loss of earnings occurs progressively during the period, it is customary to apply the interest rate to the total and divide by two, or alternatively halve the interest rate; the result is the same. See Cullen v Trappell (1980) 146 CLR 1 at [19] per Gibbs J; Grincelis v House [2000] HCA 42, 201 CLR 321 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at [22].
11. Interest on the sum of $424,356.80 from 19 July 2019 to date at 1.5% per annum is $26,524.42 and there will be an order that interest be paid in that amount. (As to the need for an order see Dann (No 2) at [62]-[63]).
12. As to the future aspect of loss earning capacity, the notional claim is for $1,750 per week to age 65, which results in a figure of $1,720,250. I am satisfied in broad terms that the plaintiff would have continued with his work as a bricklayer. There are however, significant negative contingencies that need to be taken into account. They are as I have outlined above. In particular, were the plaintiff to have continued on the downward trajectory in terms of his alcohol related illness and injury, his capacity to earn may well have been seriously compromised. There are also the issues work injury, illness and the need for unpaid leave, and the consequences of tax avoidance.
13. On the positive side, I accept that there is a possibility that as the plaintiff got older and he started to realise the effects of his alcohol abuse, he would have moderated his drinking. The cause of such a realisation may have included the need for a good relationship with his daughter. There is also the possibility that he might have regularised his work arrangements to provide him some security in relation to work injury and illness. Although his history would suggest otherwise, it might also be that he did something about superannuation in order to make a better life for himself on retirement. All in all, I consider a reduction of 35% for contingencies is appropriate. That makes the figure for the future aspect of loss of earning capacity as $1,118,162.50.
14. Therefore the total award under this head is $1,542,519.30 with the order for interest on part of that amount in the sum of $26,524.42.

1. There is an amount of $38,868.32 for past medical expenses agreed to have been properly incurred to date and in reasonable amounts. I allow that sum. It is convenient to now also deal with a separate but similar claim for "special damages", for which amounts the plaintiff has a repayment liability. First, there are agreed amounts of $19,789.10 and $346,806.84 which relate to payments made by Medicare Australia and the Department of Health and Human Services respectively.
2. Second, there is a claim for payments made by the NDIA. The amount claimed in the particulars to 9 October 2022, and agreed by the defendant, is $1,451,950.24. By agreement I have been provided with updated figures by way of a very lengthy NDIA printout. The total figure for estimated recoverable costs is now $1,699,125.60. Although the document came to me by agreement, the defendant has not agreed the additional sum. That additional sum seems generally proportionate in terms of cost over the whole period and is made up of like type expenses. As there is no real reason to doubt the accuracy of the NDIA's arithmetic, I will allow the total amount making the overall award for special damages, $2,065,721.50.

1. I will deal with these in the order they are set out in the particulars and dealt with by counsel. There is a claim for general practitioner attendances. It is agreed that the plaintiff will need to attend a GP once a month for the balance of his life, with the reasonable cost of the attendance being $87. At a weekly rate of $20.08 and with the life expectancy I have determined and the consequent multiplier of 1050, the figure is $21,084 and I allow that amount.
2. There is a claim for future medication. The parties are agreed about the required type and cost of medication, and the frequency those medications will be required. The weekly figure is $47.31. Discounted for life gives a figure, in round terms, of $49,675.50 and I allow that amount.
3. There is a claim for attendances by an occupational therapist. The claim as particularised was not ultimately pursued. As amended, it is for four monthly consultations for life. There is evidence from both Ms Curtain and Dr Denehey supporting the need for the input of an occupational therapist. Ms Curtain recommends monthly consultations for life and her costing of $190 per hour was not challenged. The weekly cost is $43.85. To the projected life expectancy that figure is $46,042.25, and I allow that amount.
4. There is a claim for exercise physiology. The parties are agreed of the need for exercise physiology three times a week at a cost of $33.00 per visit for the balance of the plaintiff's life. That produces a figure of $103,950. I allow that amount.
5. There is a claim for attendances of a rehabilitation physician. The parties are agreed that two visits a year are necessary for the balance of the plaintiff's life. The hourly route is established by a second report from Ms Curtain dated 10 October 2022 and was not challenged. It is $190.00. At a weekly cost of $7.31, the total amount over the balance of life is $7,675.50 and there will be an award in that sum.
6. There is a claim for podiatry. The parties are agreed that the attendance of a podiatrist once every two months for the balance of the plaintiff's life is needed. They are also agreed that the reasonable cost of an attendance is $78.00. At a weekly cost of $9.00, the total claim is $9,450 and I allow that amount.
7. There is a claim for contingencies in respect of medical and like needs in the future. The parties are agreed that $50,000 is a reasonable figure, and I also allow that amount. The total award for future medical expenses is therefore $287,877.25.

1. The parties are agreed as to what is required, the frequency of replacement and the cost. The items are a lightweight wheelchair, a "Sara Stedy", a hospital bed, pressure care mattress and a self-propelled commode. Allowance should be made for the balance of the plaintiff's life. I have calculations for the five items based on present item cost, the replacement period and the deferred values for each replacement based on 3% deferral factors. Three of the items involve replacement at intervals of five or 10 years meaning replacement in 30 years' time. Two items have eight-yearly replacements which means replacement at 32 years. Thirty years is just short of the projected life expectancy, and of course 32 years is one year beyond that figure. I think it fair to make an allowance to include replacements at the claimed intervals.
2. On the basis of the calculations provided by the plaintiff, the allowances I make are $12,926 for the wheelchair, $3,633 for the Sara Stedy, $3,783 for the hospital bed, $5,390 for the mattress and $3,053 for the commode. That is a total of $28,765.

1. There are four separate items under this heading in the particulars of claim. In order, they are domestic services/attendant care, Griffiths v Kerkemeyer damages, housing and interstate travel. The major items are attendant care and housing. I will deal with them together as they are inextricably linked, with housing the first head of damage that needs to be considered.
2. That is because the plaintiff claims the cost of modifying a house for independent living. If that is allowed, the plaintiff seeks an award for 24 hour attendant care in that setting. The plaintiff's counsel did not advert to this but if no allowance for a house is made, then as no alternative proposal was advanced, the claim must revert to the cost of future care of a type as presently provided for in the share home.

1. In relation to the housing claim, the plaintiff does not seek the costs of acquiring a block of land and building a purpose built house, or buying a house suitable for modification. The claim is based on the assumption of a purchase of a modest house from a commercial home builder; in this case a Wilson Homes house of a specific model. Peter Gaggin, an architect specialising in this area, gave evidence for the plaintiff. The cost claimed is for the modifications necessary to a Wilson "Venice" house, that organisation's most popular standard model. The total is $763,386 which includes a budget contingency of 10%, and costs for permit approval, design and certification fees for architect, engineers and building surveyors.
2. There is no argument about the fact that in broad terms the plaintiff requires 24 hour care. To put the debate in perspective - at least in its original form - on the basis of inactive overnight care the cost of care claimed in the independent housing scenario is $9,160.70 per week, the discounted total from now to the end of life is about $9,618,735. There is a dispute about the reasonableness of that sum, irrespective of whether the housing issue is decided in favour of the plaintiff. The evidence shows that the plaintiff's present NDIS care package is $5,443.54 per week. The resultant discounted figure is about $5,715,720.
3. In written submissions, the plaintiff argues that "for reasons of human rights, self-determination, intrinsic motivation, autonomy, potential mood improvement, dignity and self-esteem is obvious it is reasonable" for the plaintiff to be awarded damages for independent housing. The plaintiff says that an analysis against "the Arthur Robinson test" shows that this is a reasonable expense. That is a reference to what Barwick CJ said in Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; (1968) 122 CLR 649 at 661. There, his Honour said that "the question ... is not what are the ideal requirements but what are the reasonable requirements...".
4. At 662, his Honour went on to indicate that what needs to be considered is whether a plaintiff "on the assumption that he was spending his own money, and assuming he had sufficient to do as he would and was well advised and reasonable careful for his own welfare, would be likely to expend for protection for himself and his condition". I presume it is the combination of these statements that the plaintiff refers to as the "test". In oral submissions, Mr Read argued that however the issue was looked at, "it is so obvious that [independent housing] has to happen."
5. The defendant submits that the plaintiff's current housing meets his reasonable needs and should be continued; the benefit to him of being cared for in his own home rather than in a group home is not of any benefit to his health but rather to his future enjoyment of life, and that is compensable by way of general damages or damages for non-pecuniary loss. In relation to the linked issues of housing and care, the defendant submits that given the evidence about need and the cost of care, the recommendation that the plaintiff live in his own home and receive one on one 24 hours a day, seven days a week care is not reasonable. That was the way the debate was originally framed.
6. The defendant relies on the well-known passage from the judgment of Gibbs and Stephen JJ in Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563 at 573-574. Their Honours said the appropriate criterion must be that such expenses as the plaintiff may reasonably incur should be recoverable from the defendant, and referred to what Barwick CJ said in Arthur Robinson at 661. Their Honours continued :

"The touchstone of reasonableness in the case of the cost of providing nursing and medical care for the plaintiff in the future is, no doubt, cost matched against health benefits to the plaintiff. If cost is very great and benefits to health slight or speculative the cost-involving treatment will clearly be unreasonable, the more so if there is available an alternative and relatively inexpensive mode of treatment, affording equal or only slightly lesser benefits. When the factors are more evenly balanced no intuitive answer presents itself and the real difficulty of attempting to weigh against each other two incomparables, financial cost against relative health benefits to the plaintiff, becomes manifest. The present case is however one which does to our minds allow of a definite answer; it is a case of alternatives in which the difference in relative costs is great whereas the benefit to the plaintiff of the more expensive alternative is entirely one of amenity, in no way involving physical or mental well-being. ...

The benefit to the plaintiff of being cared for at home rather than in hospital is not any benefit to her health but rather to her future enjoyment of life which would be enhanced by a home atmosphere; her life would not thereby be prolonged nor would her physical condition be at all improved; indeed she would be somewhat more at risk physically at home than in hospital. There is no evidence suggesting any likely psychiatric benefits, probable though these might appear to the layman."

1. In short, the cost must be reasonable having regard to the benefit to be obtained from the expenditure. The ideal is to be rejected in favour of what is reasonable. As to the evidence, when called, the plaintiff gave his address and was then asked what he thought of the place the lived in. He said that he hated it. When asked why, he said:

"I don't want to be in there for the rest of my life. I don't like it because the other people just sleep all day and are awake all night...I go to sleep at 11 o'clock at night to 7 in the morning, wake up and have a shower...I hate where I am. I don't like it one single bit. I look bad."

1. He was later asked about how he got on with the other residents. He said that when he had been out visiting his sister and returned at about 2.00pm, "T" was still in bed and "R" was on his chair. He said that R gave him the shits so he scares him. He went on to explain this as follows:

"[R] is okay but he does give me the shits because all he does is sit in his chair. He's only meant to be four hours in the chair because he bum bleeds, but at six, seven hours in his chair."

1. He was asked whether he was happy. He replied, "Not where I am, no. Where I live, no I am not. I hate where I live. Here is fine because I have never been in a court in my life." He was asked about how he felt having his daughter visit him at the home. He explained that he had lost his temper a couple of times with her when she was visiting and she did not want to come to see him because he "was in a nursing home or whatever it is". He said he was now pretty good, and if he ever got his daughter back, he would not swear or "be a pain the bum" like he used to be.
2. The evidence of Ms Curtain, the occupational therapist previously mentioned, is important in relation to this issue. In the executive summary of her first report of 2 August 2018, she says that the plaintiff's long term goal is to live in his own home with support "and this is considered reasonable". Ms Curtain noted that the plaintiff's relationship with his daughter had been affected because of his adverse behaviours. Later in the report, Ms Curtain notes the plaintiff's motivation to live in his own house with support, and that this could become "a meaningful participation goal for him."
3. In evidence, Ms Curtain was asked to elaborate on why moving into his own home would be a meaningful participation goal. Her reply was lengthy, but it ought to be set out in full.

"In answering that question**, it's important to understand where we're sort of moving worldwide in disability systems. So, we're moving away from more congregated living towards more individualised models of housing**. So, this reflects the UN Convention on the Rights of Persons with Disability Principles to provide people with a disability and with complex needs with the right to choose - to have choice about where they live and about who they live with. And individualised housing, or living in your own home, aims to provide choice regarding living arrangements, and the options to live in houses in the community just like people who don't have a disability. So, specifically, for Mr Leonard, this is a goal of his and therefore it reflects his choice about where he wants to live and who he wants to live with. And, I guess, a bit of background into the research around housing - research shows that when people live in their own home, it's associated with improvements in their human rights, in their self-determination, in their intrinsic motivation, in their choice, in their autonomy, their social relationships - there's often improvements in their mood, and there's often a reduction in challenging behaviours. So, for Mr Leonard specifically, living in his own home would allow ... his treating team to modify the environment specific to his physical, his cognitive, and his behavioural needs. For example, where he is in the group home - when I saw him in a wheelchair - he was unable to access the kitchen, things like meals were provided for him, as opposed to, perhaps, creating a meaningful participation goal around preparing his own meals, or some participation in domestic tasks. We know that research shows that when someone's living in their own home, there's often an improvement in their participation in domestic tasks because these aren't, sort of, provided routinely like they are in a group home style setting. And what we also know from research is that family and friends are more likely ... to visit, but also to spend longer periods of time with a person in their own home than they are in a more, sort of, group home or residential institutional-type setting. So, when I saw Mr Leonard, he, at that period of time, expressed to me he was close with his family, specifically his sister. He had a daughter who was three at the time, so I imagine she would be seven or eight now, and he expressed that their relationship had deteriorated since his brain injury. One of things he was hoping was to improve that relationship. It's my opinion that when someone is in their own home, there's the opportunity for - for example, another bedroom for family or friends to stay, perhaps creating an opportunity for his daughter's toys or play area to be created - so, it just gives him a bit more sense of autonomy around his own environment. Yeah, so that's - that's some of the reasoning." [My emphasis]

1. Ms Curtain was then asked to describe the disadvantages of living in shared housing. She made the following points.
   • This also relates to "the move in disability in general" away from congregated living. The plaintiff has expressed his desire to live in his own home with support, and from his perspective, keeping him where he is denies him the human right about choice as to where he lives and who he lives with.

• This might have a negative impact on his participation, on his engagement, potentially on his mood, and on his participation goals if he cannot exert choice over life decisions.

• Although the level of care provided seemed very good when she assessed the plaintiff in 2018, the care plan was very out of date. (I take it from this that Ms Curtain was implying that there would be much less chance, if any, of a care plan becoming outdated in an individualised setting.)

• When looking at individualised housing for people with disabilities, the aim of that is to support their choices in relation to decisions that affect their lives.

• In shared accommodation, there is compromise in order to accommodate all residents, which impinges on individual choices and preferences. There are often time management problems in accommodating people with a variety of disabilities and a variety of impairments, with staff trying to get a lot of tasks done to attend properly to all residents; "it is sort of a more generalised environment that needs to accommodate multiple people."

• The plaintiff had said that he did not interact with the other residents in the group home, they are much older than him and at that period in time, he was not living with the people that he would ordinarily choose to live with.

1. In cross-examination, it was put to Ms Curtain that while it may be ideal for the plaintiff to live in his own home, it was not reasonable.[20] Ms Curtain replied:

"Well, I think I've expressed my views on why I think it would be beneficial for him to live in his own home. I guess from what I'm understanding you're saying, as long as he's provided with the care and support he requires for self-care and domestic care, he's getting everything he needs. I suppose my view on that is that a person's quality of life isn't just about being provided with help to have a shower and being provided with a meal. Their ability to actively engage in tasks day-to-day and to make choices about the way they live, what they can participate in, to have goals established with them by their treating team, is more the way we would view brain injury rehabilitation than someone just being given help to have a shower or provided with their laundry or provided with a meal. So, I do feel it's reasonable that someone should have choice over where they live and how they live and to be - when so many choices are taken away from you when you have a brain injury, in terms of your participation, your ability to work, your ability to form relationships, the things that we do day-to-day and our ability to have some independence and some participation, even with support, can really be the determinant of people's quality of life." [My emphasis]

1. In relation to the level of care, Ms Curtain was taken to the current NDIS care plan and by reference to that cost, it was put to her that given the significant difference in care costs, while the plaintiff living in his own home may be ideal, it was not reasonable. Ms Curtain's evidence in response was as follows.
   • The plaintiff had a need for one to one care.
   • If his true care need is being assessed, at any time of the day his need for care is to have one person available to him at all times based on his physical, cognitive, and behavioural impairments arising from his brain injury.
   • Comparing the costs of a care program where his care is split between three other people, it stands to reason that it would be cheaper than providing the plaintiff one to one care, but care on that basis is not adequate in terms of really addressing the plaintiff's true need for care.
   • If his care is split between three or four other people, it may be that the plaintiff is left in his room while someone is attending to somebody else, and so the quality of care might come under question.
   • The plaintiff's true need for care based on his impairment is someone to be with him 24 hours a day; it is that which justifies the significant extra cost.
   • If in a group home and his care is shared amongst other people, then arguably his care needs are not being met.
2. In order to properly appreciate Ms Curtain's evidence, it is necessary to delve into some detail of her lengthy and comprehensive written report of 2 August 2018. Although things have moved on a little since then in terms of the plaintiff's mobility, there is material directly relevant to the present discussion. Ms Curtain spent four hours with the plaintiff at the share home and spoke to day carers including Mr Short and two others. In Ms Curtain's view, the plaintiff lacked meaningful participation in routine day to day tasks, and should be encouraged to increase his engagement with those things. In particular, Ms Curtain said he lacked motivation to be involved in any meal preparation tasks because he was simply given all his meals, and he had not been the subject of a meal preparation assessment.
3. She recommended the plaintiff increase his participation and suitable light domestic duties noting that there had been no input into this area. He should be assisted to participate in light and suitable meal preparation and in light laundry tasks. Providing him with his own home may well provide motivation to engage generally with an occupational therapist in relation to a range of tasks.
4. Despite some isolated reservations having been expressed about seeking to derive any broad principle from the statements in the judgments in Sharman v Evans,[21] the "touchstone of reasonableness" approach is well entrenched in the law relating to damages: see generally Luntz at [4.4.2]. Accepting that position, it is worth referring to what Kniepp J said in Wieben v Wain [1990] Aust Torts Rep 81-051 at 68,189. After discussing the four judgments in Sharman v Evans. His Honour said:

"It is of course elementary that expenses may be allowed where the only benefit is by way of amenity. The use of a prosthesis rather than a crutch by a plaintiff who has lost a leg may not be of any benefit to the health of the plaintiff, but this will not be a good ground for refusing the cost of a prosthesis on the ground that it will be much more expensive than a crutch. Instances can be multiplied indefinitely. The only difference in a case such as this is the size of the additional sum involved. But with respect, it seems to me that this is not a sufficient ground for automatically excluding matters of amenity as a ground for making the allowance. A striking feature of the judgments in Sharman v Evans is that nowhere is there any reference to the wishes of the plaintiff. ... The test of reasonableness is of course objective. In my view that does mean that matters which are subjective to the plaintiff should be left out of account. To one person, being permanently in the best of institutions might be as unpleasant as being permanently in a prison, while to another the same institution might be the most desirable of safe havens. I have not lost sight of the fact that it is said that if a plaintiff is required to live in an institution against his will, he should be allowed an appropriate in his award for pain and suffering and loss of amenities. One asks what comfort is this to him during years spent in an environment to which he is completely antipathetic." [My emphasis]

1. In McNeilly v Imbree [2007] NSWCA 156 at [155] after noting Kniepp J's comments on Sharman v Evans, Basten JA said, "Similarly, it is commonly accepted nowadays that significant benefits will flow to a person from modifications which would allow him or her to live at home, rather than in an institution", citing Government Insurance Office (NSW) v Mackie [1990] Aust Torts Rep 81-053 at 68,211. (In this respect see also Burford v Allen [1992] Aust Torts Rep 81-814 at 61,616-17; Rosecrance v Rosecrance [1995] NTSC 136; (1995) 129 FLR 310 at 334; generally Luntz at [4.5.1].) His Honour continued:

"Furthermore, the great advances in technological devices which can assist a severely injured person to improve his level of independence and the enjoyment of the amenities of life, may well be seen as a better form of compensation than a higher award of general damages flowing from a greater degree of pain and suffering. Finally, an assessment of what is reasonable in the circumstances of a particular case, may well involve some consideration of the significance of the expenditure, as a proportion of the likely overall award, as well as the difficult assessment of the relationship between the additional proposed cost and the anticipated benefit."

1. In this case, the defendant further submits that a court must take into account that an injured party lived in rental accommodation before the injury. Weideck v Williams [1999] NSWCA 346 at [10] is given as the authority for this proposition along with Munzer v Johnston [2009] QCA 190 in which the relevant passage was referred to with apparent approval. In closing, Ms Sluiter argued that to provide the plaintiff with a house by way of additional damages would be to ignore the evidence that but for this incident, he is unlikely to ever have been in a position to own his own home or even to secure his own rental accommodation without sharing. It was put that "the evidence establishes that Mr Leonard's injuries didn't deprive him of the ability to live independently. He's unlikely to have done that in any event." The submission was not elaborated on.
2. The whole of the relevant passage from Wiedeck needs to be examined. Davies AJA (Stein JA and Wood CJ at CL agreeing) said:

"9 ... [I]t is necessary to have regard to the particular facts of each case so that the assessment reflects, so far as money can do so, the loss which the injured plaintiff has suffered. It is fundamental that the circumstances of the plaintiff prior to the injury and the future which the plaintiff would most likely have achieved, but for the injury, must be taken into account in order to assess the loss which resulted from the injury

10 ... The award must take into account the facts of the particular case. In some cases, it will be anticipated that the injured plaintiff will live in an institution. In those cases, the cost of the purchase of a home is irrelevant. In some cases, it will be anticipated that the injured plaintiff will continue to live in his or her existing home. In such a case, only the cost of modifying the home will be taken into account. In other cases, it will be anticipated that the injured plaintiff must move from an existing home to another home more suitable to the plaintiff in his or her injured state. In those cases, the standard of the accommodation in which the plaintiff was accustomed to live will be a relevant factor. In other cases, if the plaintiff has lived prior to the injury, not in his or her own home, but in a boarding house or a caravan or in rented accommodation, the award of damages must take this into account.

11 In the present case, Mr Williams, prior to the accident, was living in a caravan and it was likely that he would have continued to do so. This fact gave rise to two relevant factors. The first was that an award which included the cost of purchasing land and a home would confer upon Mr Williams the benefit of a capital asset which, apart from the accident, he would not have acquired. The second was that, as Mr Williams would not have devoted any part of his income to the acquisition of such a capital asset, and, as he would now necessarily have to devote funds out of the damages to that use rather than to income earning purposes, it was proper to make allowance for the reduction in his income earning ability which would result from the diversion of money to that use.".

1. As I understand it, the defendant's submission about the nature of pre-injury accommodation was put in reliance on the fundamental principle that a plaintiff who has been injured should be awarded such damages as will, as nearly as possible, put them in the same position as if they had not sustained the injuries. That is, to provide him with housing would be to provide him with something he would not have had. However, at that level of abstraction, the creation of needs is treated as a "loss". The nature of pre-injury accommodation may influence the standard of that allowable post-injury but the unlikelihood of a plaintiff acquiring a house of their own cannot of itself negate an established need for independent housing created by the injury.
2. I am not sure that the defendant intended the submission to encompass the outcome as was decided on in the case of the plaintiff in Weideck v Williams; that is, as the plaintiff was unlikely to have moved out of low level rental accommodation, he was awarded damages for having to use funds out of his damages - thus giving rise to a loss of income on those funds - reduced by the discounted amount representing what he would have paid in rent. That was how the issue of pre-injury rented accommodation was relevant in that case.
3. In the present case, the plaintiff does not claim such damages. There is no evidence to prove that claim in the sense that I do not have any evidence of the cost of acquiring the standard "Venice" house. There is the agreed cost of a block of land in the sum of $300,000, but nothing more. In fact, in this context, the plaintiff asserts that he would have acquired his own home. I am not able to rule out that possibility. The plaintiff was 28 years old at the time of the injury. Although the defendant says he would not have been in an economic position to do that, he was in receipt of undeclared income to the extent I have discussed earlier. He also had a young child who, on the evidence, he saw regularly, and he worked in the building industry acquiring the skills of a bricklayer. His alcohol problem might well have intruded but he may also have moderated his intake as years went by, as I mentioned before.
4. The question comes back to the Sharman v Evans equation. That question is, when viewed alongside the consequential increases in attendant care costs, is the provision of the marginal cost of modified housing reasonable in all the circumstances? The evidence of Mr Gaggin necessarily leads to a reduction of the sum claimed for the modifications. Mr Gaggin agreed that in light of the plaintiff's recent improvements in mobility and self-help, the number of items for which he had made allowance were no longer required.
5. He also accepted that other items, such as a reverse cycle heat pump, would now be part of a "normal" house in any event. He said that these things would marginally reduce the cost but he was not asked to explain what he meant by that. Mr Gaggin also agreed that the allowance that he had made for permits, zone certification fees of about 10% of the total sum would be incurred in any event. Adopting a 5% figure as being a "marginal" reduction, that reduces the figure from $763,386 to close enough to $652,695. As the plaintiff is not claiming any land acquisition costs, and only the cost of modifications to the notional house, there does not need to be any reduction of this or any other head of damage for rent which he would have paid in any event.
6. That leads to the consideration of a reasonable figure for attendant care in the independent housing scenario. It will be recalled that the amount claimed is $9,160.70 per week for life. In the executive summary of her first report of 4 September 2018, Ms Curtain says the plaintiff will require 24 hour care for the rest of his life but there is complexity in determining his overnight care needs. She recommended more intensive multidisciplinary review of his overnight care needs to establish whether they can be provided by inactive overnight care or whether he requires more active care overnight. Ms Curtain later repeated these things in the body of the report. She said his need for overnight assistance is unpredictable and may fluctuate throughout his lifetime, particularly with any deterioration in his medical condition.
7. Ms Curtain says that at the time of her assessment, (2 August 2018), a support worker performed a sleepover shift in the care home. This was not considered active care, although the worker was available to respond as required. The support workers said the plaintiff did not attempt to get up at night and usually slept throughout. Ms Curtain noted reported incidents of him removing his CPAP mask, and said "he would benefit from review overnight to ensure his mask is in place and correct", adding that it may be beneficial for medical opinion regarding active care needs overnight. No evidence of a multidisciplinary review or relevant medical opinion was called.
8. Ms Curtain's first report contains alternative costings for 24 hour inactive care and active care. Ms Curtain did not identify the provider whose pricing was used. In that report she recommended a direct quotation for services be obtained from a local provider when implementing the care programme due to the complexity of a 24 hour regime. If that was obtained, it was not put into evidence.
9. In Ms Curtain's second report of 10 October 2022, Ms Curtain provides no additional information in relation to the plaintiff as no further assessment had been done since August 2018. Attached to that second report are service care price lists from two different organisations. The costings are drawn from the price lists and Ms Curtain has used one in particular - Claro - to provide her estimates. The other price list was that of KinCare. The second report contains an update of the table provided in the earlier report, but in this report Ms Curtain explains that the tables are based on Claro's rates. She makes no reference to the KinCare list. I will come back to the respective costings.
10. In her first report Ms Curtain says that most attendant care agencies allow for between two to four wakeups during the night, and that this can still be termed an inactive care shift. In her evidence in chief, Ms Curtain was asked why she had chosen Claro for her costings. She said the main reason was that she had used that organisation in the first report so she thought it was more relevant to provide an updated costing for that organisation again. Of course, that does not explain why she chose them in the first place, but the matter was not pursued. Ms Curtain is based in Melbourne as is, it seems from the price list, Claro. It might be inferred that Claro does not operate within Tasmania, but it is clear from the KinCare material that it does.
11. In answering the question about choosing Claro, Ms Curtain went on to explain that costing 24 hour care is quite a complex process, and different care agencies have different ways of costing overnight care. She said that in a 24 hour care programme some of the overnight care is differentiated between the different organisations depending on their model. She added:

"So, for example, some of them will stipulate that the care - the staff member needs to be able to sleep for eight hours uninterrupted, and if they are woken up for any period of that inactive shift, then they charge on an hourly rate, whereas other - another care agency might say they are able to be woken up three times during that sleepover shift as long as their scheduled activities to be provided in that shift. So it's just a little bit hard to .....put all of them in the mix and average out the care in the way I would normally ....."

1. The claimed weekly amount of $9,160.70 is Ms Curtain's costing incorporating inactive overnight care and based on the Claro price list. In broad terms, the KinCare price list attached to Ms Curtain's second report appears to be a little less expensive. The KinCare service price list is differently categorised. Using the KinCare prices for "Personal Care services (High Level)" - which is the broad equivalent of the Claro prices used by Ms Curtain - gives a weekly figure for 24 hour care of $6,123.75. Discounted for life, that amounts to about $6.43 million.
2. However, from the KinCare documentation it appears to be an agency of the type first mentioned by Ms Curtin in her examples given in evidence. It notes that for daily care 24 hour services, the booking is for 24 hours and the "worker must have a separate bedroom and eight hours sleep; otherwise the 24 hour shift reverts back to the standard hourly rate." I note that the costing for Personal Care services (High Level)" based on the hourly rate is about $11,723 per week; $63.50 per hour for weekdays, $69.50 for weeknights, $75.10 for Saturdays, $97.30 for Sundays and $133.60 for public holidays.
3. In relation to overnight interruptions, under the heading "My Profile" in an NDIS Plan approval dated 2 August 2021 authored by Karen Leonard, the "plaintiff" says "I am currently using a sleep apnoea machine. Sometimes this comes off at night and can impact my energy levels the next day if I haven't had a good night's sleep." There is also the plaintiff's evidence. He said he goes to sleep at 11 o'clock at night through to 7.00 in the morning, and then wakes up and has a shower. That, of course, generally accords with Ms Curtain's information in August 2018 and, as I have noted, there has been some improvement in his mobility and general well-being since August 2018. At this point, I would again note that the plaintiff called no evidence from any carer presently involved with the plaintiff.
4. In terms of overall care, the evidence shows that the plaintiff requires regular assistance with domestic chores, but in his personal care he is very largely independent. He needs assistance with such things as administrating his enema. He is able to safely transfer from laying to sitting, sitting to standing, and to standing from the floor. He no longer has a urinary catheter of any description and has good urinary continence. However, while a relatively good level of independence exists, the extent of his disabilities and what he cannot do should not be overlooked.
5. The parties have now made supplementary submissions in relation to the agency costings. The plaintiff maintains that Ms Curtain's Claro costing should be adopted, with some allowance made for the fact that the cost is very likely to have increased since the list was published on 1 July 2022. The defendant's position is that if there is to be 24 hour care in the independent living scenario, then it should be at KinCare rates, but those for Personal Care Services, and not Personal Care Services (High level). The former is $5,999.34 per week, a relatively modest reduction form the higher level.
6. Looking at all of the evidence relating to the plaintiff's disabilities and the general nature and level of care provided, I am satisfied that the general level of care required is that reflected in the Claro costings or those of the KinCare high level. It seems to me the critical issue in all of this is attempting an assessment of the plaintiff's needs for overnight care on the available evidence.
7. I accept that there is a need for the plaintiff to regularly and properly use the CPAP device; otherwise he is at risk of cardio vascular complications. It is very difficult to know what to make of the frequency of mask removal from "reported incidents" or the plaintiff's own description of it happening "sometimes." To constantly monitor the situation would seem to require active car. His present overnight care is described as sleepover, but with the carer able to respond as required. There is no evidence as to how the plaintiff's removal of his mask is detected; whether the plaintiff becomes aware and alerts the carer, or it is simply detected in the morning.
8. Notwithstanding Ms Curtain's description of a sleepover shift, there is some evidence which may suggest a system of observations of the plaintiff during the night. That may occur as part of the overall care of the four residents. The evidence is in the form of "shift" notes, an extract of which for two to three days in early July 2022 was tendered by the defendant.[22] Starting at 22:49 on 2 July and ending at 07:07 on 3 July there are five notes which read "An observation has been added to Sighting Chart by [name of carer on date and time]". Starting at 23:59 on 4 July and ending at 06:37 on 5 July, there are four similar notes. While in the main these relate to various times spread across the morning, no real distinct pattern of regularity emerges.[23] The sighting chart was not in evidence. A note made at 06:38 on 5 July records that "frequent" sight checks were done, and the plaintiff slept well throughout the night and was still sleep at the time of the note.
9. I will examine the KinCare weekly rate of $6,123.75 in this context. If it is assumed that there is one disturbance of the night carer per week, and the particular shift reverts to the standard hourly rate, and if it is assumed that over the year 48 such disturbances happen on a week night, with two on a Saturday and two on a Sunday, the net annual increase in cost is $46,183.60.[24] Twice a week per year with the same ratio across the week results in a net annual increase of $92,367.20. Divided by 52 weeks, the additional weekly costs become respectively $888.15 and $1,776.30. Added to the standard Daily care 24 hour rate ($6,123.75 per week) the resultant total weekly cost figures are therefore $7,052 and $7,980.40.
10. Of course, the difference between the present care costs and that of the proposed "one on one" care is mainly because the present care is shared with three others, and so the cost is reduced. I also note that the Claro pricelist excludes NDIS for which, and for other funded schemes, there seems to be a different rate; I assume a lower one. In any case, the plaintiff's proposal puts him with a dedicated carer and therefore not subject to the competing demands of his housemates.
11. Obviously, I need to bear in mind who carries the onus. If I were minded to take the independent living/attendant care pathway, I need to be satisfied of the need that creates the expense, and the reasonableness of the expense. As I have noted, in her 2018 report Ms Curtain said that allowance would need to be made for the possible need for an active overnight carer at some time in the future. I think that remains a reasonable proposition. I am satisfied that need the present level of care will remain; I doubt that any further improvements in mobility will alter that basic need to any great extent. I accept that the costs of any agency are likely to have increased somewhat since the time of the last price lists in evidence.
12. At the same time, I accept the defendant's point that 24 hour care for seven days per week for 52 weeks of the year may not be necessary because of the family assistance that would be available. Were the independent living scenario to be realised, it is likely that there are times when the plaintiff would, for instance, be looked after at or away from his home and a carer would not be necessary. The "football" trip to Melbourne is an example. I do not suggest that the periods without the need for a carer would be extended periods, but an accumulation of a few days every now and then could well total up to two weeks a year.
13. On all of the material I am not satisfied that a reasonable level of care cannot be provided at a lesser figure than that claimed. I am satisfied the starting point is the KinCare 24 hour daily rate. That needs upwards adjustment for the overnight care issues, present and future. Doing the best I can and with all things considered, in my view a reasonable weekly figure for attendant care would be in the order of $8,000. I think a rounding up to a discounted figure of $8.5 million is appropriate and justified.
14. I now return to the broader critical question. Notwithstanding senior counsel for the plaintiff's blunt assertion that an award for housing "must happen", the issue is more complex. It requires careful thought and analysis. To begin with, I respectfully agree with what Kniepp J said in Wieben v Wain (above). Although the test is objective, there is nothing to suggest that a plaintiff's wishes should be ignored unless they are objectively irrational, or without any foundation. In this case, I am satisfied that the plaintiff has sufficient insight into his situation, and that his stated severe dislike of his current environment appears to have, for various reasons, some rational basis. His future involves about 30 years or so in that environment were it not changed.
15. In terms of the Arthur Robinson test, I think it can be fairly said that were the plaintiff spending his own money, with sufficient funds, being well advised and reasonably careful for his own welfare, he would be likely to use it to improve his living environment. I am satisfied on the whole of evidence that a change in living arrangements would substantially benefit the plaintiff in terms of his level of physical and mental functioning, and assist him to be much better integrated into the wider community.
16. Having given the issue the close and careful consideration it deserves, I am satisfied that awards should be made to enable the plaintiff to live independently, Overall, I am satisfied the benefits to be gained justify the additional cost, considerable though it is. I would therefore award the sum of $652,695 for housing and the sum of $8.5 million for future attendant care.

1. The plaintiff's claim essentially relates to gratuitous services provided by his sister, Karen Leonard. The amount claimed is based on five hours a week for the past and future, at a rate of $40 an hour, that being a reduction from the commercial rate shown by the evidence to be $65 an hour. That reduction is said to take into account that the type of care is "in part, companionship akin to diversional therapy." The defendant chose only to deal with this issue on the basis that the Civil Liability Act applied, the submission being that on the evidence no award should be made because the minimum requirement of six hours set out in s 28B of the Act had not been met. The plaintiff's claim, of course, is not governed by the Act.
2. There is no reason to doubt Ms Leonard's evidence in this respect. She said she visited the plaintiff two or three times a week and had done, it seems, for a considerable time going back essentially when he came out of hospital. She said she went to be a companion to him; they watch the football together and play games. However, she does assist him with any issues with technology that he encounters, she shops for him for food, drink and personal items that he wants or needs. The visits can be up to two hours or more but that can at times involve just watching the football.
3. Ms Leonard said he often rings her asking her to follow up such things as equipment that he is due to get or money that is due to be paid into his account. Ms Leonard is the "plan nominee" under the NDIS. In that role she reviews the monthly planned management documents, and effectively audits the receipt and expenditure of monies under the scheme. Ms Leonard also deals with the Public Trustee in relation to payments to the plaintiff.
4. A particular area of her activity relates to the plaintiff's medical appointments. Ms Leonard said that about two and a half years ago Eskleigh were not taking the plaintiff to his appointments, so she "took over the medical side of things so all of those appointments come to my house" she notes the appointments in her diary and makes sure the plaintiff understands when things are to happen. She receives all his mail and notes any appointments or commitments that the plaintiff needs to keep. In terms of the arrangements for the medical appointments, that of itself can take up to an hour or two "within a week, fortnight" (sic).
5. Although the line may be blurred in this and many similar cases, there still needs to be an attempt to draw that line between times spent in companionship and emotional support on the one hand, and services rendered on the other. In CSR Ltd v Eddy [2005] HCA 64, 226 CLR 1 at [24], the majority said that the damages are awarded to plaintiffs to compensate them for the cost, whether actually incurred or not, of services rendered to them because of their inadequacy to render it to themselves. Emotional support does not fall within that category, see also Wormleaton v Thomas & Coffey Ltd (No 4) [2015] NSWSC 260 at [132], [134].
6. In this case I am satisfied that the plaintiff is entitled to Griffiths v Kerkemeyer damages, but on the evidence in the present case, it is difficult to determine with any degree of certainty the time actually spent engaged in services needed by the plaintiff as a result of the injury and which were gratuitously provided. Doing the best I can with Ms Leonard's estimates, I think it fair to allow three hours a week at the suggested rate of $40 an hour.[25] As finally framed at trial, the claim was for the past seven years and six months. That puts the commencement date at a point of about one year after the plaintiff left hospital. That date was 16 April 2015 and so I think a reasonable commencement date is 17 April 2016. As far as the past loss is concerned, the period to date is 387 weeks making the award $46,440. From now to the end of life, discounted at the appropriate rate (1050) is $126,000. The total amount I allow under this head is $172,440.

1. The parties are agreed that it is reasonable to allow the plaintiff the cost of airfares for his carer to accompany him to Melbourne once a year for the balance of his life. The reasonable cost of a carer to fly with the plaintiff to Melbourne is $374.78. At a weekly cost of $7.20, the future costs discounted at the appropriate rate, again slightly rounded up, is $7,576 and I allow that amount.

Damages for pain and suffering, loss of amenities etc.

1. I have already set out the injuries suffered by the plaintiff, short details of the treatment received and his present disabilities. He went through a difficult and protracted recovery period. He is very substantially disabled mentally and physically. He has serious cognitive deficits. Much of this is detailed in the section relating to life expectancy. Over time there has been considerable improvements in his mobility although he remains in need of 24 hour care. He has worked hard in his rehabilitation. Much of the material shows a high level of motivation and determination to do as much as he can. Dr Denehey has remarked that he "cannot be commended enough for the progress he has made and his commitment and attitude towards his rehabilitation over many years."
2. Prof Davis summarises the plaintiff's neurological condition as requiring around-the-clock supervision but with fairly minimal assistance with activity such as dressing and showering. His neurological deficits include severe impairment of high mental functioning, organic behavioural changes typical to severe brain injuries (with agitation and outbursts), bulbar dysfunction with particular impact on his speech (severe dysarthria) together with asymmetric quadraparesis. In evidence, the plaintiff could estimate the number of times he had fallen over and described how he is now able to mobilise with the walking stick. He said he now stutters quite badly every now and again, adding, "I hate stuttering, trust me. I hate it so bad".
3. In Dr Denehey's view the plaintiff has limited insight into his cognitive difficulties. In evidence, he was able to say that he has been told things about his pre-injury life but he cannot remember. He said he cannot remember names and has great difficulty retaining information given to him. He is aware that his situation and his behaviour have alienated his daughter and he is very keen to reconcile with her.
4. When asked about his brain, after some non-responsive attempts at answering the question, he mentioned that it was all swollen when he was hit, adding, "... my brain's on the bed for - I was in a coma for two weeks, I can't remember, my mind was on the bed, my brain was, yeah, and there is that scary horror in there. I can't remember anything else." He is generally aware that his brain does not work as it did beforehand.
5. Obviously, all his previous recreational pursuits are now denied to him apart from watching AFL games on the television and the proposed annual trip to Melbourne to watch a game. He maintains an ability to engage with his family, and enjoys doing that. He does things in the share home such as jigsaw puzzles and using Lego, and is sometimes taken on outings to things he enjoys such as car racing.
6. The plaintiff was a relatively young man when he was injured. He will have to cope with his disabilities and changed life for some three decades hence. I take into account his present circumstances but also that his disabilities might be mitigated to an extent by more pro-active care, and his enjoyment of life might improve because of the provision I have made for his housing and future care. I bear in mind that the question is fair and reasonable compensation for the injuries received and the disabilities caused, having regard to the degree to which economic uncertainty has been removed by awards under other heads of damage. In my view an appropriate award under this head is $350,000.

Interest on past aspect of loss of earning capacity

1. In accordance with Nicholson v Nicholson (1994) 35 NSWLR 308 and Shellharbour City Council v Rigby [2006] NSWCA 308 at [288]- [292] (and, I would respectfully say, with fairness and common sense) the figure for damages has to be reduced for contributory negligence before administration costs are considered. After applying the 20% reduction, the amount is $10,938,389.43. The plaintiff accepts that the amount of the "special damages" will not be managed, and that sum is to be excluded for the purposes of the calculation. The amount to be considered for management is therefore $8,872,667.93.
2. The Public Trustee is the administrator of the plaintiff's estate pursuant to an order made by the Guardianship and Administration Board on 3 February 2021. That order expires on 2 February 2024 but the parties are agreed I proceed on the assumption that the order will be renewed, and continue to be renewed. I have an exhibit entitled "Cost of Investment Management Factors" from Cumpston Sarjeant, consulting actuaries. It sets out the fund management fees of (among others) the Public Trustee based on their online fees and charges, which, I assume, are in accordance with reg 6 and schedule 1 of the Public Trustee Regulations 2019.
3. I was told the tables in the exhibit factor in "fund management costs" as allowed in Gray (by her tutor Gray) v Richards [2014] HCA 40, 253 CLR 660. The tables are a little crude in that they show fund amount increases in $5 million increments and duration increments of 20 years. Using the 3% discount rate as set out in the exhibit, I have taken the proportionate amount of the figure for $10 million for a period slightly more than the result of the addition of the 20 and 40 year amounts, divided by two; $1,750,000. On those calculations, the amount for administration costs is $1,552,250. That amount must then be added to the total damages as reduced for contributory negligence: $10,938,389.43.

1. Rounding up the result very slightly, I order that judgment be entered for the plaintiff Public Trustee against the first and fourth defendants for the sum of $12,490,640 for damages and interest.*

On 20 September 2023 I ordered that judgment be entered for the Public Trustee against the first and fourth defendants for the sum of $12,520,240 for damages and interest. I published my reasons to the parties. At the same time, I directed that the order lay in Court for seven days pending submissions from the parties about any arithmetical errors I had made including my choice of multipliers, the method of finalising the judgment figure, or any similar matter that could be properly be dealt with before formal judgment was entered.

Within the seven day period, the solicitors for the first and fourth defendants notified the court of two errors in my calculations. Those errors related to the interest payable on the past aspect of loss of earning capacity, and to the cost of housing. The plaintiff's solicitors were agreed as to the correct calculations, and I record my gratitude to the parties' legal advisors for their assistance.

On 29 September 2023, I amended the order made on 20 September 2023 by substituting the amount of $12,490,640 for the previous judgment sum. These reasons - published on 29 September - have been revised to incorporate the changes made to the particular calculations and amounts, and to the consequent calculation of the final judgment figure. The affected paragraphs were [369], [372], [410], [432] and, of course, [446]-[450].

[1] Throughout the trial, Mr Meaclem's surname was pronounced as though the "l" were an "h", with the transcript having it as "Meecham". Whatever the pronunciation, the correct spelling - as shown by a statutory declaration of his in evidence - is Meaclem.

[2] Mr Scott is fairly easily identified in the video because of his bald head.

[3] This test is also reflected in the statutory form of self-defence in civil proceedings provided for in s 52 of the Civil Liability Act 2002 (NSW). It was also accepted by the Court in Ray v Southon [2022] NSWCA 267 as the test for the defence at common law in civil proceedings: Harrison J at [14], Ward P and Griffiths AJA agreeing. But see State of New South Wales v McMaster [2015] NSWCA 228, 91 NSWLR 666 which held the subjective belief of the need to act in self-defence had to be based on reasonable grounds.

[4] See also Neasey J at [17]. And further, see Wright v Tasmania [2005] TASSC 113 at [16] per Blow J (Evans and Tennent JJ agreeing) and Nettlefold-Calum v Woodhouse [2020] TASSC 35, 32 TASR 214 at [33].

[5] I would take the same view of the plaintiff's motions even if it is accepted there was a push and not a punch.

[6] The trial judge's acceptance of Dickson was noted and was not the subject of any argument or adverse comment.

[7] The case went on appeal; McCracken v Melbourne Storm Rugby League Football Club Ltd [2007] NSWCA 353, but by that time it was common ground the relevant law was that of Victoria and the Civil Liability Act did not apply.

[8] [2019] NSWDC 433 (Abadee DCJ) at [90].

[9] From this point, unless it is specifically necessary I will leave out references to "death" as it is generally not required for the purposes of the discussion. I will also refer to conduct that constitutes a serious offence as "criminal conduct".

[10] See the issues in Hage-Ali v State of New South Wales [2009] NSW DC 266; Withyman v State of New South Wales [2010] NSWDC 186

[11] The appeal was allowed by the majority and a re-trial ordered as a result of failures to make relevant findings of fact. Young CJ in Eq disagreed; he allowed the appeal in part and ordered there be judgment for the plaintiff subject to a reduction for contributory negligence of 50% in lieu of the 25% ordered by the trial judge.

[12] The primary judge held that the injury suffered by the appellant occurred following his assault on the respondent; a serious offence within the meaning of the section.

[13] Civil Liability Act 1936 (SA) s 43(2); Civil Liability (Wrongs) Act 2002 (ACT) s 94(2); Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 10(2)

[14] Civil Liability Act 2003 (QLD) s 45(2), (3)

[15] Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156 at 165.

[16] This view of "fault" was later held to be correct in the UK where the definition was the same: Reeves v Commissioner of Police [1999] UKHL 35; [2000] AC 360 at 382; Standard Chartered Bank v Pakistan Shipping Corporation [2002] UKHL 43; [2003] 1 AC 959 at 969. The second limb relates to plaintiffs and the conduct of a plaintiff cannot be "fault" unless it gives rise to a defence of contributory negligence at common law.

[17] Eight are recorded in the Hospital notes in the period 26 September to 7 October 2014.

[18] As part of the hospital records in evidence, there are notes relating to an admission on 3 September 2020 for a fractured femur following a fall backwards from a standing position onto concrete while using a gutter frame.

[19] The defendant asserts that as at 1 July 2017 the total was $10,463.50. I simply note my inability to find that figure, or any combination totalling that figure, in any of the TasPlan documents, and observe the difference is of no consequence.

[20] The question was objected to on the basis it went to an ultimate issue. I allowed the evidence to be given on the basis that Ms Curtain's instructions directed her to consider what was reasonable rather than ideal in the way expressed by Barwick CJ in Arthur Robinson at 662 (above).

[21] In McNeilly v Imbree [2007] NSWCA 156 at [155] per Basten JA (Beazley and Tobias JJ agreeing) said that as appears from the judgment of Kneipp J in Wieben v Wain [1990] Aust Torts Rep 81-051,"it may be some care should be taken" in doing so.

[23] On 3 July there is one entry for 02:47 followed by one at 04:13 and another at 04:38.

[24] The hourly rates are $63.50 for weekdays, and $69.50 for weeknights. As the delineation is not clear, I have used the weeknight figure which should offset the higher rate that applies to a public holiday should the event happen on one of those days.

[25] Section 28B3(a) of the Civil Liability Act provides that the hourly rate for damages for gratuitous services is not to exceed 1/40th of adult average weekly earnings. The sum of $40 per hour appears to be close to that amount.